What provided the qualifications to be an MP and what provides it now
s 34 of the Constitution but now otherwise provided in s 163 of the Commonwealth Electoral Act
What are the 3 qualifications to be a member of Parliament
18 years or over
Australian citizen
Elector entitled to vote at a HoR election OR qualified to vote for Senate
What sets out the entitlement to enrol to vote
s 93 of the CEA
What does s 93 of the CEA provide re: entitlement to vote (4)
18 yo +
Australian citizen or British allowed before 26/1/84
Not unsound mind
Not convicted for sentence 3 years or longer
What does s 38 of Constitution provide
The place of a member shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the House, fails to attend the House.
What does s43 of Constitution provide
Member of one House ‘incapable of being chosen or of sitting as a member of the other House
What are disqualifications under s 44 of Constitution (5)
(i) acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power: or
(ii) Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or
(iii) Is an undischarged bankrupt or insolvent
(iv) office of profit under the Crown or pension
(v) has direct or indirect pecuniary interest
What did s 46 of Constitution provide for
100 pounds per day for common informers
What has replaced s 46 of the Constiuttion
Common Informers Act s3
$200 before originating process and $200 a day after
What did the HCA state in Alley v Gillespie
The Common Informers Act did not confer on it jurisdiction to determine the disqualification of the MP
Can ordinary people still seek to establish a Member of Parliament is disqualified?
A voter or losing candidate has to bring a challenge in the Court of Disputed Returns to the election of a candidate within 40 days of the candidate’s election.
What has replaced s 47 of the Constitution
Part XXII of CEA confers power on the HCA as ‘Court of Disputed Returns’ to determine disputed elections
s376 referral by house question arises of qualification
Facts of Re Webster
Senator James Webster was a shareholder in the family’s timber business and at the time of the 1974 election was also its managing director. The company entered into contracts to provide timber to various Commonwealth departments.
Barwick CJ’s findings in Webster
- Disqualification is automatic
- Prevents Government from seeking to influence Members by contracting with them
- Only applied to legal interests in agreements that continue for a substantial period of time
When was Day disqualified
Kiefel CJ, Bell, Keane and Edelman JJ said that his disqualification occurred at least from 26 February, when the instruction was given to pay the rent to Day.
Gageler, Nettle and Gordon JJ held that Day’s seat was vacated when the lease was entered into on 1 December 2015 – because he had an indirect interest in the lease as a beneficiary of a family trust.
Day ratio
- ‘duty as a representative of others to act in the public interest’ which includes ‘an obligation to act according to good conscience, uninfluenced by other considerations, especially personal financial considerations’
- type of interest involved should not be confined to a legal interest
When will a contract of public service not be caught by s 44(v)
If agreement is on ordinarily made between government and a citizen
Why are profits of office disallowed to be held under the Crown
Prevent the Executive from influencing Members of Parliament by offering lucrative offices
When is an office under the Crown/appointment by
GG, Governor, Minister or is a public servant
What does the Court take into account as to Office under Crown
- Appointed and removable by a representative of Crown
- Accountable to Crown
- Subject to its supervision
Facts of Sykes v Cleary
Cleary was on leave without pay as a Victorian
school teacher. His election was challenged on the basis that he held an ‘office of profit under the Crown’ at the time that he was ‘chosen’ as a Member. Cleary resigned
from his teaching position after polling day but before the declaration of the polls
Ratio of Sykes v Clear
- as a teacher, held an office of profit under the Crown, regardless of whether or not he was receiving his salary and regardless of the fact that it was an office under the State Crown.
- ‘Chosen’ covered the entire process of being chosen, which commenced at nomination. So a candidate must not hold an office of profit under the Crown at nomination.
Ratio of Re Lambie
Offices of mayor and local councillor were offices of profit, but in this case they were not ‘under the Crown’
- Depends on legislation under each state
Facts of Wood
Senator Robert Wood was a British citizen and not an Australian citizen. His right to vote in Commonwealth elections had been preserved as at 26 January 1984. But he still breached the statutory requirement that candidates for Parliament be Australian citizens.
Ratio of Wood
Was not Australia citizen, did not need to consider s 44(i)
- Where Senate candidate is disqualified, his or her seat is filled by recount with preferences passed on
What did court find when Sykes challenged candidacy of other two candidates
Renouncing foreign citizenship while swearing allegiance in Australia still requires formal steps to terminate citizenship
- REASONABLE steps must be taken
Ratio of Free v Kelly
RAAF officer = office of profit
Not senate seat so fresh election needed
Canavan CITIZENSHIP SEVEN ratio
- a person was disqualified from Parliament by virtue of holding foreign citizenship, regardless of his or her knowledge or suspicion concerning their citizenship.
What were the two limbs of s 44(i) the Court identified in Canavan
1) ‘under any acknowledgement’ of foreign allegiance. This involves an act of will of the person concerned
2) is a subject or a citizen’ of a foreign power or entitled to a citizen’s rights or privileges. This is a matter of fact concerning. It does not require any act of will
What was identified as unreasonable in Canvan
Where operation of foreign law is contrary to constitutional imperative
- visiting territory of foreign country where risks to person or property
Why was Xenophon not held to be a foreign citizen
Xenophon’s form of citizenship, as a ‘British
Overseas Citizen’ was so lacking in substance, not even giving rise to a right of abode, that it was not regarded as ‘citizenship’ for the purposes of s 44.
Gallagher facts
She did nothing about her dual citizenship until just before nomination for the 2016 election. She was still a British citizen at the time of her nomination, but claimed that she had taken all reasonable steps before then to renounce and that this was all she needed to do.
Ratio of Gallagher
- For a foreign law to irremediably prevent the renunciation of foreign citizenship, it must present an ‘insurmountable obstacle’, such as a requirement that puts the person at risk
- is not mere delay in processing an application for renunciation
What was an example Edelman J gave as an unreasonable step
Requirement to complete military service before renouncing
Culleton facts
At the time of his nomination and election, he was convicted (in his absence) and subject to be sentenced for the offence of larceny in NSW. Larceny has a potential penalty of more than 12 months imprisonment.
Culleton Ratio
conviction was only annulled for the future – the provision did not operate to deny legal effect to a conviction from the time it was recorded. Hence, at the time Culleton was ‘chosen’, a conviction was recorded against him and this was not altered by the annulment