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Thursday, 6 September 1984
Page: 518

Senator GARETH EVANS (Attorney-General) —I table the Government's response to the report on the Constitutional Qualifications of Members of Parliament of the Senate Standing Committee on Constitutional and Legal Affairs. I seek leave to make a statement in relation to that.

Leave granted.

Senator GARETH EVANS —The report on the Constitutional Qualifications of Members of Parliament which was tabled by Senator Missen, as Chairman of the Senate Standing Committee on Constitutional and Legal Affairs, on 2 June 1981, deals with the desirability of changes to the provisions of the Constitution and of Commonwealth legislation relating to the qualification and disqualification of members of Parliament, and makes 18 recommendations in that regard.

The report is under consideration by the Australian Constitutional Convention. The recommendations that relate to constitutional matters were placed on the Adelaide agenda of the Convention by the previous Government. They were discussed only briefly at Adelaide and have been referred to the Standing Committee of the Convention for further study. The Standing Committee has been directed to report by the end of 1984 and has itself asked for a report from one of its sub-committees, the Structure of Government Sub-Committee, by 30 September 1984. That Sub-Committee is giving the matter detailed consideration. It is important to note in this connection that only those recommendations relating to constitutional alteration are under study by the Convention. The recommendations for legislative changes require independent action and will be followed up by those of my Ministerial colleagues who are responsible for the administration of the particular legislation.

So far as constitutional alterations are concerned, some of the Committee's recommendations raise large and complex issues and require further discussion with State representatives in the Constitutional Convention context so that a broad consensus may be achieved. Provided there is reasonable progress in the Constitutional Convention, a final Government position on these recommendations will not, therefore, be determined until the Convention has fully discussed them . I am, however, able to give the Senate an indication of the Government's views in principle on each of the recommendations, both constitutional and statutory. The Government's general attitude to each of the Committee's recommendations is set out in a document entitled 'Government Attitude to Recommendations of Senate Standing Committee on Constitutional and Legal Affairs concerning the Qualifications of Members of Parliament'. I seek leave to have that document incorporated in Hansard.

Leave granted.

The document read as follows-



Re-enact s.34 of the Constitution to entrench in the Constitution the age qualification of 18 years and the nationality requirement of Australian citizenship.

Support entrenchment of 18 years but with retention of Parliament's power to lower the age, support the entrenchment of Australian citizenship.

2 (i)

Insert the requirement of Australian citizenship in s.69 (1) (b) of the Commonwealth Electoral Act 1918.

The recommendation has been implemented by the proclamation of s.34 of the Statute Law (Miscellaneous Amendments) Act 1981 which came into effect on 26 January 1984.

2 (ii)

Remove the requirement of three years residence in Australia in s.69 (1) (c) of the Commonwealth Electoral Act 1918.

This has been implemented by the Commonwealth Electoral Legislation Amendment Act.

2 (iii)

Delete the requirement in s.69 (i) (d) of the Commonwealth Electoral Act 1918 that a Member be an enrolled elector or be qualified to be enrolled (this would have the consequential effect that a candidate need not be so qualified).

No not support. The link between voter qualifications and candidate qualifications should be retained.

3 & 4.

Delete the ground of disqualification in s.44 (i) (allegiance to a foreign power or foreign citizenship) but legislate to require a candidate who is a dual national to declare at the time of nomination that he-


* holds a non-Australian nationality;

* has taken every step reasonably open to him to divest himself of the non- Australian nationality; and

* will not accept, or take conscious advantage of, any rights privileges or entitlements under the nationality while a Member.


Replace the obscure and archaically expressed ground of disqualification in s.44 (ii) of the Constitution referring to ''attainted'' of treason by a reference to persons ''convicted under the law of the Commonwealth, and not subsequently pardoned, of the offence of treason''.



Delete the ground of disqualification in s.44 (ii) referring to being convicted and under sentence for an offence punishable by imprisonment for one year or longer.

Support the deletion of s.44 (ii) subject to its replacement by a disqualification similar to the voter disqualification in s.39 (6) (b) of the Electoral Act (ie. disqualification of a person who 'has been convicted and is under sentence for an offence punishable under the law of the Commonwealth or of a State or Territory by imprisonment for 5 years or longer').


Delete the grounds of disqualification relating to undischarged bankruptcy and insolvency in ss.44 (iii) and 45 (ii) of the Constitution.


8 & 9.

Amend the Defence (Parliamentary Candidates) Act 1969 to give a right to Defence personnel to resign to contest an election and to reinstatement if unsuccessful.

Support subject to appropriate discretionary and review procedures.


Not proceed with the Constitution Alteration (Holders of Office of Profit) Bill 1981.


11 & 12.

Replace s.44 (iv) of the Constitution disqualifying Members who hold ''offices of profit'' by new provisions which would give a more precise description of the offices in question and which would allow their holders to become candidates without being required to resign if they are not elected.

Support subject to the inclusion of provisions which would empower the Parliament to specify conditions to which the candidature for election to a House of the Parliament would be subject.


Re-enact s.43 of the Constitution to allow a Member of one House to be ''elected '' to the other House without resigning so that he vacates his existing seat only on the declaring of the ''poll'' in respect of his election to the second House.



Amend the proviso to s. 44 (iv) of the Constitution to allow the appointment and remuneration of Assistant Ministers, Parliamentary Secretaries and holders of ' like offices' without their disqualification.


15 & 16

Delete the existing constitutional grounds of disqualification relating to pecuniary interests in Government contracts and taking a fee or honorarium for services rendered to the Commonwealth or for services rendered in Parliament to any person or State and in their place, give Parliament broad powers to legislate on conflicts of interest, direct or indirect and pecuniary or otherwise, and improper influence.

Support but note that the matter may be better regulated through the Standing Orders rather than through legislation.


Amend s. 203 of the Commonwealth Electoral Act 1918 to make it clear that each House retains jurisdiction to determine any question respecting qualifications or vacancies unless it has referred the matter to the Court of Disputed Returns.



Amend the Common Informers (Parliamentary Disqualifications) Act 1975 by deleting the penalty provisions, and providing simply for an action for a declaration to be brought in the High Court of Australia at the suit of any person, as to whether or not a Senator or Member of the House of Representatives is disqualified.


Senator GARETH EVANS —I emphasise that the Government's views as set out in that document are views as to the principle of each of the Senate Committee's recommendations. It is clear from the discussion that has already taken place within the Constitutional Convention that the detailed implementation of the recommendations may require some divergence from the draft provisions suggested in the Senate Committee's report. I think all honourable senators have cause for satisfaction with the report of the Senate Standing Committee on this topic. The Government intends to pursue all of the Committee's recommendations in one way or another and welcomes the further expression of views on the various issues raised by the report. Views expressed in the Senate will be kept in the forefront of the discussions that are yet to take place with the States in the context of the Australian Constitutional Convention.