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Tuesday, 26 February 1985
Page: 183


Senator GARETH EVANS —Last Friday Senator Missen asked me a question concerning the Representation Act 1983, which is of some interest to a number of new senators in this place. I am advised, so far as the Attorney-General's Department's part of it is concerned, that while Attorneys-General had given general consideration previously to the application of the nexus provision in the Constitution the issue was specifically reconsidered following a story in the Age newspaper on 10 January casting doubt on the constitutionality of the Representation Act that governed the last election. The Attorney-General's Department advised, following this reconsideration, that there was no breach of section 24 of the Constitution because there was no House of Representatives in existence until the new House met and as at the date of the first meeting the nexus requirement was in fact satisfied.

The relevant provision is section 5 of the Constitution, providing for prorogation and dissolution. The Attorney-General's Department's advice is that when the House of Representatives is dissolved there is no House of Representatives between the date of the dissolution and the date of the first meeting of the next Parliament, held in accordance with section 5 of the Constitution. That view is also supported by section 28 of the Constitution. The arrangements for payments to members and senators are not relevant to the constitutional nexus requirement in section 24. This can be illustrated by the fact that, although upon dissolution members cease to be members, those who renominate continue to receive their allowances up to and including the day fixed for the election.

As to the part of the question dealing with the Special Minister of State and what might be done about the question of payment, the matter of the difference between the 1983 and 1949 legislation, to which Senator Missen adverted, is important and it is now under active consideration. I will advise Senator Missen and the Senate of the outcome of that active consideration as soon as possible.