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Constitution Alteration (Electors' Initiative, Fixed Term Parliaments and Qualification of Members) 2000 [2008]

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1998-1999-2000

 

 

 

 

THE SENATE

 

 

 

 

Constitution Alteration (Electors’ Initiative, Fixed Term Parliaments and Qualifications of Members) 2000

 

 

Explanatory Memorandum

 

 

Circulated by authority of Senator Murray



GENERAL OUTLINE

 

This omnibus Constitution Alteration Bill brings together three proposals for changing the Constitution, previously introduced as separate bills by former Australian Democrat Senators in the late 1980s and early 1990s.

 

The proposals are:

 

1)       to include in the Constitution provision for elector-initiated constitutional change;

 

2)       to provide a fixed term for the House of Representatives and to shorten the term of Senators;

 

3)       to simplify the provisions in the Constitution in relation to the qualifications of members of Parliament.

 

 

FINANCIAL IMPACT

 

The financial impact of the proposals has not been quantified.



NOTES ON CLAUSES

 

Clause 1—Short Title

 

The Short Title will be Constitution Alteration (Electors Initiative, Fixed Term Parliament and Qualification of Members) 2000 .

 

Clause 2—Schedules

 

Clause 2 provides for the Constitution to be altered as set out in the Schedules.

 

 

NOTES ON SCHEDULES

 

SCHEDULE 1

 

Schedule 1 contains amendments to the Constitution relating to the alteration of the Constitution by electors.

 

Item 1

 

Item 1 inserts into section 128 of the Constitution a phrase to indicate that the means of altering the Constitution are the means provided for in chapter 8.

 

Item 2

 

Item 2 is the substantive amendment to the Constitution contained in Schedule 1.  It inserts a new section in chapter 8 of the Constitution to provide a second mode of altering the Constitution.  Currently, section 128 provides that a proposed law altering the Constitution is initiated by the Parliament.  Proposed new section 129 will enable voters to register as the proponents of a proposal for constitutional change with the Australian Electoral Commission (AEC).  Registered proponents may then present a petition to the AEC, for presentation to the Governor-General, containing a single proposal for amending the constitution.  The AEC is then responsible for printing and distributing copies of the petition.  A petition remains available for signature for a period of 6 months, beginning on a day determined by the AEC.  Signatories to petitions must have been qualified to vote at the most recent election for the House of Representatives before the petition was registered.  At the close of the 6 month period, the petition must have been signed by not less than 5% of the number of voters voting at that election.  The 5% threshold is considered appropriate because it is high enough to prevent vexatious proposals qualifying for a referendum but low enough to enable proposals with significant popular support to be eligible.

 

Once the AEC has undertaken random sampling of the petition to ensure that it meets the requirements of the section, the Governor-General submits the proposed change to the electors.  The provisions of section 128 which apply to the voting method and the counting of votes for a referendum also apply to the method in section 129; that is, for a proposal to be successful it must be supported by a majority of voters overall and a majority of voters in a majority of the States. 

 

Details of the proposed change may be published by the AEC at the expense of the person or persons furnishing the arguments for or against it.  At any time during the 6 month period available for the collection of signatures, the Attorney-General or any elector may apply to the Federal Court for a declaration that the proposed law is not in the appropriate form or will not result in constitutional change that is practicable or legally effective.  Finally, proposed new section 129 empowers the Parliament to make laws with respect to incidental matters required to give effect to the method of altering the Constitution under that section.

 

 

SCHEDULE 2

 

Schedule 2 contains amendments to the Constitution relating to the duration of the House of Representatives, the terms of Senators, the holding of simultaneous elections for both Houses and the recognition of the office of Prime Minister.

 

Item 1

 

Item 1 removes from section 5 of the Constitution the Governor-General’s open-ended discretion to dissolve the House of Representatives.

 

Item 2

 

Item 2 inserts a new section 5A into the Constitution which sets out the circumstances in which the Governor-General may dissolve the House of Representatives.  If there has been a motion of no confidence in the Prime Minister and other Ministers of the State in the House of Representatives the Governor-General may dissolve the House by proclamation on the eighth day after the day on which the no confidence resolution was agreed to.  But if before the eighth day on which the no confidence motion was passed, the House passes a further resolution declaring confidence in an alternative Prime Minister and that person agrees to be Prime Minister, the Governor-General may not dissolve the House.

 

The Governor-General may also not dissolve the House of Representatives if, after the no-confidence motion is passed and before the eighth day, the Prime Minister resigns, the Governor-General appoints a new Prime Minister and the House of Representatives passes a resolution expressing confidence in the new Prime Minister and his or her Ministers of State.

 

New subsection 5A prevents the Governor-General from dissolving the House of Representatives in any other circumstances other than in accordance with that section or section 57.  Finally, new section 5A provides for the House to be called within seven days after the day on which a no-confidence resolution is passed, where a meeting of the House is not otherwise fixed to take place within that time.

 

Item 3

 

Item 3 amends section 7 of the Constitution by repealing the first two paragraphs of section 7 which relate to the Senate and providing instead for the Senate to be composed of Senators for each State, directly chosen by the people of the State, voting as one electorate.  This item removes from the Constitution the discretion given to Queensland in the original Constitution to make laws dividing the State into divisions for the purposes of Senate elections.

 

Item 4

 

Item 4 amends the fourth paragraph of section 7 to remove a reference to the 6 year term which currently applies to senators. 

 

Item 5

 

Item 5 amends section 9 to entrench proportional representation as the method of choosing senators.

 

Item 6

 

Item 6 amends the second paragraph in section 9 to limit the powers of a State Parliament to make laws that determine the times and places of elections for Senators.  Such laws are explicitly made subject to this Constitution which will be amended to provide for simultaneous elections for the House of Representatives and the Senate.

 

Item 7

 

Item 7 repeals the current sections 12  and 13 which relate to the issuing of the writs for Senate elections and the rotation of Senators and replaces them with new sections 12 and 13.  New section 12 provides for State Governors to issue writs for Senate elections not earlier than 30 days before the day on which the places to be filled are to become vacant or, if the places to be filled have already become vacant, not later than 10 days after the day on which the vacancy occurred.  New section 13 provides for the terms of service of Senators to be consonant with the terms of Members of the House of Representatives.

 

Transitional provisions are included.

 

Item 8

 

Item 8 repeals section 28 which currently provides a 3 year term for the House of Representatives and replaces it with a new section 28 that provides for a 4 year term, with the House expiring in October of the fourth year and a general election for the House being held on the third Saturday in the November immediately following the October in which the expiry occurred.  Again, transitional provisions are included.

 

Item 9

 

Item 9 repeals section 32 and provides new arrangements for the issuing of writs for general elections of the House of Representatives.

 

Item 10

 

Item 10 adds to section 57 a requirement for elections of Senators and Members of the House of Representatives following a dissolution under section 57 to be held on the same day.

 

Item 11

 

Item 11 inserts into section 64 provisions recognising the office of Prime Minister and providing for his or her dismissal by the Governor-General following the passage of a resolution by the House of Representatives expressing lack of confidence in the Prime Minister.



SCHEDULE 3

 

Schedule 3 contains amendments to the Constitution which simplify the current provisions relating to qualifications of members of Parliament and the grounds for disqualification.  The amendments will give the Parliament a greater role in determining qualifications by ordinary legislation.

 

Item 1

 

Item 1 adds to section 16 (about the qualifications of senators) consequential words which clarify the ability of the Parliament to make laws determining the qualifications of senators to the same extent that the Parliament is able to make laws determining the qualifications of Members of the House of Representatives.

 

Item 2

 

Item 2 replaces existing section 34 about the qualifications of Members of the House of Representatives with a new section 34.  The basic qualifications are that a person must:

 

            (a)        be an Australian citizen;

(b)        be 18 years of age (or such lower age as is prescribed by the Parliament);

(c)        not be of unsound mind; and

(d)       not be disqualified by or in contravention of any laws made by the Parliament under this new section.

 

Giving the Parliament flexibility with respect to minimum age allows the membership age to keep pace with the voting age.

 

New section 34 also allows the Parliament to make further laws about matters relating to the qualifications of members, including in relation to:

 

(a)        procedures for determining whether a person is of unsound mind;

(b)        Australian residence;

(c)        terms of imprisonment; and

(d)       conviction for treason.

 

Item 3

 

Item 3 replaces existing sections 44 and 45 with new sections in relation to the disqualification of members of both Houses.  The new provisions change the approach taken in the current provisions by providing a less risky and clearer transition to membership of Parliament.

 

Certain employees or office-holders are declared to cease to be employed or hold office the day before becoming entitled to be paid as members of Parliament.  These include:

 

(a)        Judges;

(b)        Commonwealth public servants (including employees of the parliamentary service) and defence force personnel;

(c)        public authorities or members thereof;

(d)       members of State or Territory parliaments;

(e)        State or Territory public servants; or

(f)        other prescribed officer holders or employees.

 

This new section has the effect of removing several archaic concepts existing in the current provision.

 

New section 45 sets out the new grounds for disqualification which reflect the terms of section 44.  Importantly, flexibility is given to the Parliament to declare the holders of certain offices or certain employees to be beyond the application of the disqualification provisions.  Ministers and Parliamentary Secretaries are explicitly excluded from the operation of the provisions.

 

Finally, new section 45A gives the Parliament power, subject to the Constitution, to make laws about further grounds for disqualification involving conflict of interest and corruption, and specifies that a person having certain pecuniary interests is ineligible for choice or service as a member of Parliament.