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Title

Ch5 Members / QUALIFICATIONS AND DISQUALIFICATIONS / Challenges to membership / Section 45(ii) of the Constitution

Database

House Practice

Date

01-05-2005

Source

House of Reps

Parl No.

41

Chapter

Members

Chapter No.

Chapter 05

Page

138

Section No.

 

System Id

procedural/practcer/chapter05.12.doc


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Ch5 Members / QUALIFICATIONS AND DISQUALIFICATIONS / Challenges to membership / Section 45(ii) of the Constitution



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House of Representatives                                Ch 5                                                 p 138

 

Members / QUALIFICATIONS AND DISQUALIFICATIONS / Challenges to membership

 

Section 45(ii) of the Constitution

The interpretation and application of section 45(ii) arose in the House in 1977 in connection with Mr M. Baume, MP, who, before entering Parliament, had been a member of a stockbroking firm which had collapsed. On 5 May 1977 a motion was moved:

. . . that the question whether the place of the Honourable Member for Macarthur [Mr Baume] has become vacant pursuant to the provisions of section 45(ii) of the Constitution of the Commonwealth of Australia be referred for determination to the Court of Disputed Returns pursuant to section 203 of the Commonwealth Electoral Act. 1

It was argued that an agreement made by Mr Baume with the appointed trustee of the firm constituted a deed of arrangement or, alternatively, that he received benefits as a consequence of arrangements made by other members of the firm under Part X of the Bankruptcy Act. Speaking against the motion the Attorney-General presented three legal opinions, including a joint opinion by himself and the Solicitor-General, to the effect that the matters in question did not come within the scope of section 45(ii) and stated that the deed executed by Mr Baume was not a deed of arrangement within the meaning of the Bankruptcy Act, not being a deed executed by him as a debtor under the Act as a deed of arrangement. On the question of whether Mr Baume had received benefits under the Bankruptcy Act as a result of deeds executed by other members of the firm, the opinions were to the effect that while benefits had been conferred, these were not the benefits to which section 45(ii) refers, and that the provision applies where a debtor takes benefits as a party to a transaction, as distinct from receiving benefits as a non-participant. The Attorney-General argued that the question of law was quite clear. He said there was no need for the matter to be referred to the Court of Disputed Returns and that the Government wanted it to be decided by the House. The motion for referral was negatived. 2

There has been no precedent in the House of Representatives of the seat of a Member being vacated because he or she has become bankrupt. Therefore, while a seat is vacated at the instant that the Member is decl ared bankrupt, the machinery for bringing this fact to the attention of the House is not established. The proper channel of communication would seem to be between the court and the Speaker and this could be achieved by a notification to the Clerk of the House who would then advise the Speaker. The Speaker would then inform the House, if it were sitting, and issue a writ for a by-election following the usual consultations. If the House was not sitting, the Speaker could issue the writ as soon as convenient and not wait for the House to reconvene.



H.R. Deb. (5.5.77) 1598-1610; VP 1977/108-12.



H. R. Deb. (5.5.77) 1598-1608. See also PP 131 (1981) 33-4.