The constitutional choices made by the framers of the Australian Constitution delineated the political character of members of the Senate. The provision for direct election of senators made them the representatives of the people rather than the appointees of any other body. The provisions for a six-year fixed term for senators and for elections by rotation provided the opportunity for senators to have a greater degree of independence from the executive government. The provisions for each state to elect senators by voting as one electorate and for the equal representation of the states gave senators a wider representative capacity than members for local constituencies. Developments since 1901 have also significantly affected the character of senators as representatives. The introduction of proportional representation for Senate elections in 1949 made senators as a group more representative of the range of opinions in the community. The establishment in 1970 of a comprehensive committee system in the Senate provided senators with greater opportunity for productive interaction with the people through committee inquiries and hearings.
Qualifications of senators
The Constitution, sections 16 and 34, prescribe certain qualifications for election to, and membership of, the Senate, but allow the Parliament to alter those qualifications by statute. The current statutory prescription of the qualifications of a senator are contained in the Commonwealth Electoral Act 1918, section 163. To be elected as a member of either House of the Parliament a person must:
- have reached the age of 18 years
- be an Australian citizen
- be either an elector entitled to vote at a House of Representatives election or be a person qualified to become such an elector.
The Constitution, section 44, prescribes certain disqualifications which render a person incapable of being chosen or of sitting as a member of either House. The section is as follows:
Any person who —
- Is under any 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
- 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
- Is an undischarged bankrupt or insolvent: or
- Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or
- Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons:
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
But subsection (iv) does not apply to the office of any of the Queen's Ministers of State for the Commonwealth, or of any of the Queen's Ministers for a State, or to the receipt of pay, halfpay, or a pension by any person as an officer or member of the Queen's navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.
The rationale of these disqualifications provisions is that they prevent senators being subject to undue external influence which could prejudice their performance of their duties. A person having an allegiance to a foreign power could be unduly influenced by that power. A person under sentence for an offence is subject to the control of the executive government. An undischarged bankrupt or insolvent is subject to the control of creditors or the courts. A person holding an executive government position could be subject to undue influence by the executive government. The granting of a pension at the discretion of the executive government could obviously be used to buy allegiance of senators. A person having an interest in an agreement with the Commonwealth could similarly be subject to such undue influence, and could also be influenced by personal interest in performing the legislative duties of a senator.
Undoubtedly the most significant of these qualifications is that relating to an office of profit under the Crown. It is designed to ensure that the executive government of the Commonwealth or a state cannot purchase the allegiance of a senator by awarding the senator a government job. This purpose is important, because without the provision a government could award jobs to senators other than ministers and thereby place them in a similar position to ministers as regards supporting the decisions and proposals of the government. The provision is a vital safeguard against bribery of senators. The manner in which the disqualification is expressed, however, gives rise to some questions of interpretation.
Employing its power under sections 16 and 34 of the Constitution, the Parliament has in the Commonwealth Electoral Act prescribed further disqualifications for election to either House. A person may not be elected if the person:
- is a member of a parliament of a state or of the legislature of a territory
- has been convicted within two years of the election of certain offences relating to bribery and undue influence.
The prohibition in section 164 of the Commonwealth Electoral Act on members of state and territory legislatures was, by its legislative history and relevant parliamentary statements, clearly intended to be a prohibition on their election, but is stated to be a bar to their nomination only. Theoretically a person could be elected to the Senate if they were elected to a state or territory legislature after the lodging of their Senate nomination, leaving aside state or territory prohibitions on membership of two legislatures. This situation could have arisen in the context of the Senate and Australian Capital Territory elections of 2001.
There is also nothing in Commonwealth law to prevent the appointment to a casual vacancy in the Senate of a person who is a member of a state or territory legislature.
The disqualification provisions of section 44 of the Constitution have been construed by the High Court, sitting as the Court of Disputed Returns (see below), in a number of judgments.
In relation to the qualification of citizenship, the Court has held that the election of a person who was not an Australian citizen at any material time during the election is void.
Paragraph (i.) of section 44, relating to adherence to a foreign power, has been construed by the Court as relating only to a person who has formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who has not revoked that acknowledgment. In relation to persons who have dual nationality, the question is to be determined by whether the person has taken reasonable steps to renounce a foreign nationality, and what amounts to the taking of reasonable steps depends on the circumstances of a particular case. British nationality is foreign nationality for this purpose. In 2010, a challenge to the election of Senator Abetz was withdrawn when it became clear that the Senator had taken all necessary steps to renounce his German nationality.
[update: The High Court, sitting as the Court of Disputed Returns (see below), has adjudicated a number of aspects of section 44 of the Constitution as it applies both to candidates and to sitting senators and members. During the 45th Parliament, ten senators declared elected at the 2016 election were found to have been incapable of being chosen by virtue of disqualifications under section 44, following the referral of matters to the High Court: see Appendix 7A. There were also several cases or prospective cases involving members. While most of these were dual citizenship matters, the Court had cause to consider four of the five paragraphs in section 44, the interaction of sections 44, 46 and 47 (as to which, see Determination of disqualifications, below), as well as temporal matters connected to the process of being chosen.
[update: s. 44(i) foreign allegiance and citizenship]
Prior to the 45th Parliament, it was generally understood that paragraph 44(i) applies to a person who has formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who has not withdrawn or revoked that allegiance: Nile v Wood (1988) 167 CLR 133. For these purposes, “foreign power” includes the United Kingdom: Sue v Hill (1999) 199 CLR 462. The election of a person who was not an Australian citizen at any material time during the election is void: Re Wood (1988) 167 CLR 145. To qualify for election, it was not enough for a person to have become an Australian citizen unless that person had also taken “reasonable steps” to renounce foreign nationality. What amounted to reasonable steps would depend on the circumstances of the particular case: Sykes v Cleary (No. 2) (1992) 176 CLR 77.
In October 2017, the High Court made orders and delivered its judgment on questions concerning the qualifications of six senators and one member of the House of Representatives declared elected in 2016 (Re Canavan  HCA 45). The Court adopted what it termed the ordinary and natural language of paragraph 44(i), consistent with the majority view in Sykes v Cleary. In doing so, the Court distinguished between the first part of the provision (“acknowledgement of allegiance” etc.), which requires a voluntary act, and the second part (“a subject or a citizen…of a foreign power”), which involves a state of affairs existing under foreign law. Each of the matters turned on the construction of the second part of the provision. The Court rejected the alternative interpretations put before it, which sought to introduce questions about an individual’s knowledge of their citizenship status and a degree of volition in retaining foreign citizenship.
It is worth repeating in full the Court’s summary as to the proper construction of s 44(i):
71 Section 44(i) operates to render “incapable of being chosen or of sitting” persons who have the status of subject or citizen of a foreign power. Whether a person has the status of foreign subject or citizen is determined by the law of the foreign power in question. Proof of a candidate’s knowledge of his or her foreign citizenship status (or of facts that might put a candidate on inquiry as to the possibility that he or she is a foreign citizen) is not necessary to bring about the disqualifying operation of s 44(i).
72 A person who, at the time that he or she nominates for election, retains the status of subject or citizen of a foreign power will be disqualified by reason of s 44(i), except where the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power, the constitutional imperative is engaged.
Four senators and the member were found to have been foreign citizens at the time of nomination and so were incapable of being elected. Four further references in 2017 saw four more senators disqualified on the same grounds: Re Parry; Re Lambie; Re Kakoschke-Moore  HCATrans 254 (8 December 2017); Re Gallagher  HCA 17.
In the last of those cases, the Court further detailed the “constitutional imperative” identified in Re Canavan. The Court held that, where foreign law presents “something of an insurmountable obstacle” to renouncing citizenship, a person taking all reasonable steps to do so may avoid disqualification. Two elements are required: first, a foreign law that operates irremediably to prevent an Australian citizen from participation; and secondly, that “that person has taken all steps reasonably required by the foreign law which are within his or her power to free himself or herself of the foreign nationality”.
However, the procedure for renouncing – in Gallagher’s case – British citizenship was held not to be onerous. The issue was merely one of timing, and the exception could not apply. As the senator remained a dual citizen at the time of the election, the Court declared her incapable of being chosen. Following the judgment, four members of the House of Representatives whose circumstances echoed those considered in the case resigned their places.]
[update: s. 44(ii) disqualifying conviction]
Paragraph (ii.) of section 44, relating to conviction for offences, operates only while a person is under sentence or subject to be sentenced for an offence described by the section, that is an offence punishable (not necessarily actually punished) by imprisonment for one year or longer. A person is under sentence while a sentence which has been imposed has not been completed, and is subject to be sentenced while there is a continuing possibility of a sentence being imposed, for example, where a sentence is suspended as part of a conditional release with a bond. Presumably if a conviction is quashed on appeal the vacancy which was taken to have occurred upon conviction and sentence is then taken not to have occurred. If such a presumed vacancy has been filled the filling of the vacancy would then also be void. Therefore, if a member of either House is convicted and sentenced such as to involve the disqualification, the member should not attend the House and the member's place should not be filled until any appeal against the conviction is determined.
After the 2016 election, the Senate referred to the Court of Disputed Returns, pursuant to section 376 of the Commonwealth Electoral Act, whether Senator Culleton was incapable of being chosen, or of sitting, as a senator because at the time of the election he had been convicted of, but not yet sentenced for, a charge of larceny, a conviction later anulled. [update: In Re Culleton [No 2]  HCA 4 the Court held that he was incapable of being chosen, finding that he was subject to be sentenced for a disqualifying conviction throughout the whole period of the election. The subsequent annulment did not prevent the operation of paragraph 44(ii). The judgment affirmed the proper construction of paragraph 44(ii) – that it covers a person convicted and either under sentence or subject to be sentenced – and expanded on the meaning of “subject to be sentenced”.]
[update: s. 44(iii) bankruptcy]
In paragraph (iii.) of section 44, relating to bankruptcy, the word “undischarged” qualifies both of the words “bankrupt” and “insolvent”, and the paragraph applies only to a person who has been formally declared bankrupt or insolvent and who has not been discharged from that condition. [update: A senator or member who becomes bankrupt or insolvent while serving is disqualified under paragraph 45(ii). On 23 December 2016, the Federal Court ordered the sequestration of a senator’s estate, the prima facie effect of which was to cause the vacation of his office as a senator: Culleton v Balwyn Nominees Pty Ltd  FCAFC8 at 1. The vacancy was notified to the Governor of the relevant state after the President received documents recording the status of the senator as an undischarged bankrupt. The senator was found to have been incapable of being chosen at the 2016 election on other grounds, so the matter was somewhat academic: statement to the Senate, SD, 7/2/2017, pp. 2-3.]
[update: s. 44(iv) office of profit under the Crown]
In relation to paragraph (iv.) of section 44, relating to office of profit under the Crown or pension payable by the Crown, in order to fall within the paragraph an office must be remunerated and must be under the Crown, that is, an office to which appointment is made by the executive government. The paragraph therefore covers persons permanently employed by the executive government. The taking of leave without pay by a person who holds such an office does not alter the character of the office. The exemption of ministers from the prohibition in the paragraph does not cover parliamentary secretaries, who were accordingly not paid any remuneration until an amendment of the Ministers of State Act in 2000 provided for them to be sworn in as ministers, but without that title. Receipt of a pension does not disqualify a person unless the pension is payable during the pleasure of the Crown; a pension payable under the provisions of a statute would not activate the disqualification.
[update: In 2017, the Court found that a candidate returned in a special count intended to replace an ineligible senator was herself disqualified, having been appointed to the Administrative Appeals Tribunal and thereby holding an office of profit under the Crown: Re Nash [No 2]  HCA 52.]
After the general election of 1996, the question was raised whether Senator-elect Jeannie Ferris of South Australia was disqualified from election and as a senator because she had accepted a position on the staff of a parliamentary secretary. It appeared likely that she would be disqualified if the question were determined, because the position in question was clearly an executive government position, a parliamentary secretary being an office-holder of the executive government. In debate in the Senate on the matter, the government argued that the appointment to the position was not validly made, but as she had actually taken up the position and was paid for it for a period, the likelihood was that this would not avoid the disqualification. The argument was also advanced that the disqualification provisions do not apply to a senator-elect, but only to a candidate and to a senator who has commenced a term. It would seem to be a strange result, however, if the safeguard intended to be provided by the disqualification could be defeated by conferring an executive government position on a senator-elect, which could influence the conduct of the senator during an election and after the beginning of the senator's term. In any case, the writ for the election had not been returned at the time when Senator Ferris took up the position, so that the election was technically still in progress and she was still in the process of being chosen.
The Senate agreed to a motion to refer the matter to the Court of Disputed Returns, but the motion was amended to provide that it would not take effect until after the commencement of Senator Ferris' term if she were a member of the Senate at that time. The intention of this amendment appeared to be to allow an opportunity for Senator Ferris to resign and to have her place filled as a casual vacancy. The Senate's resolution did not take effect, because Senator Ferris resigned after the commencement of her term and was not a member of the Senate on the date specified in the resolution. She was then, however, appointed by the South Australian Parliament to the place rendered vacant by her resignation, and she appeared with the other senators returned at the general election to be sworn in when the Senate next met. If she had been disqualified at the time of her election, her resignation and appointment to the consequent vacancy would not seem to cure the defect, because if she were not validly elected there could be no valid resignation and consequent vacancy. This was made clear by the Court of Disputed Returns in Vardon v O'Loghlin (1907) 5 CLR 201 at 208-9. As the Court found in Re Wood and Sue v Hill (see above), if a candidate has not been validly elected the cure is a recount of the ballot papers to determine the candidate who was validly elected to the place in question.
Notice of a motion was given to refer the matter to the Court of Disputed Returns, but the notice was withdrawn, apparently for lack of support. It was then pointed out that an action to test the matter could be brought under section 46 of the Constitution. No further action was taken.
In 1996 the Court of Disputed Returns ordered a new election in a House of Representatives electorate when it came to light that the member elected in the 1996 general election was a member of the Air Force at the time of her election. It is unclear whether she was disqualified on a proper interpretation of the part of the proviso in section 44 relating to forces of the Commonwealth. The question was not argued before the Court, but was conceded by her counsel. It was stated in submissions that members of the forces who had sought election to either House in the past had been transferred to the reserve before nominating, but it is not clear that even this precaution is necessary, and it is unfortunate that the Court did not determine the issue on a full consideration.
[update: In Re Lambie  HCA 6 the Court declared that a candidate was not incapable of being of chosen as a senator by reason of paragraph 44(iv) of the Constitution. The court found that the offices of mayor and councillor held by the candidate were not offices “under the Crown”; a determination turning on the degree of control an executive government might exercise over those positions.]
In 1974 a senator accepted a position as an ambassador without resigning from the Senate, and there was a dispute about the effect of this on the senator's place in the Senate. This dispute was unresolved at the time of the simultaneous dissolutions of the two Houses in 1974.
[update: s. 44(v) pecuniary interest in an agreement with the Commonwealth]
Paragraph (v.) of section 44, relating to pecuniary interest in an agreement with the public service of the Commonwealth, was construed very narrowly by the Court of Disputed Returns in a particular case in 1975. It was held that, in order to fall within the paragraph, an agreement must have currency for a substantial period of time and must be one under which the Crown could conceivably influence the contractor in relation to parliamentary affairs. In 2002 the Senate took under consideration the question of whether Senator Scullion was disqualified because of contracts with government departments and agencies. Independent advice was sought on the matter. The advice indicated that he was not disqualified.
In 2016, the Senate referred to the Court of Disputed Returns questions about the qualification of Senator Day following information presented to the Senate by the Special Minister of State alleging that Senator Day may have had an indirect pecuniary interest in an agreement for the lease of his electorate office. [update: In Re Day [No 2]  HCA 14 the Court found that Webster was decided on an overly narrow reading of the provision and should not be followed. The Court found that the purpose of paragraph 44(v) extends to ensuring that members “will not seek to benefit by such agreements or to put themselves in a position where their duty to the people they represent and their own personal interests may conflict”. The indirect pecuniary interest found to exist on the facts of the case sufficed for the Court to hold that Day was incapable of being chosen, or of sitting, as a senator.]
[update: "incapable of being chosen"]
The disqualifications in section 44 render a person incapable of being chosen or of sitting as a member of either House. The disqualifications therefore operate from the time the process of election starts, that process including nomination of candidates. [update: It has also been determined that a candidate must remain clear of any of the grounds for disqualification up until the time they are chosen, even if that process is not concluded until long after the polling day. In several of the matters referred by the Senate to the Court in the 45th Parliament, the eligibility of the person returned in a special count was contested. In one case the Court held that the candidate so returned was herself disqualified, having lately accepted a government appointment. The Court’s reasons confirmed that a Senate election is not concluded if it returns an invalid candidate, but continues until a senator is validly elected. Any disqualification which arises in the meantime – in this case, appointment to an office of profit under the Crown, contrary to paragraph 44(iv), a year after polling day – renders the candidate incapable of being chosen: Re Nash [No 2]  HCA 52.]
It has not been explicitly determined whether the disqualifications apply to a senator-elect, but it would be anomalous if they did not, having regard to the purposes of the disqualifications.
[update: During the 45th Parliament several senators resigned their places after doubts were raised as to their qualification to be chosen at the 2016 election. The questions in each of these cases were referred to the High Court under section 376 of the Commonwealth Electoral Act 1918, which provides that the Senate may refer to the Court any question respecting the qualifications of a Senator or a vacancy in the Senate. Questions are not confined to whether or not a vacancy has occurred, but may also encompass the nature of a vacancy and how it may be filled: see further under Determination of disqualifications, below. If a person returned as a senator is subsequently found to be incapable of being chosen, then there is not a casual vacancy (ie, a vacancy to be filled under section 15 of the Constitution); rather, there is an invalid election which must be completed. This position is not altered by the resignation (or purported resignation) of the senator concerned: see Vardon v O’Loghlin (1907) 5 CLR 201 at 208-9.]
If a senator is found to have been disqualified at the time of election, the election of that senator is void. The resulting failure validly to fill a place in the Senate is remedied by a recount of ballots cast in the election to determine the person validly elected. If a senator becomes disqualified after completion of the election process, this creates a casual vacancy which may be filled under section 15 of the Constitution.
There is no obligation on the Australian Electoral Commission to determine whether a person is disqualified at the time of the person's nomination.
The Constitution provides in section 45 that the place of a member of either House becomes vacant when the member becomes subject to the disqualifications mentioned in section 44. This automatic vacating of a member's place also operates if the member:
- Takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors: or
- Directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State.
The Constitution, section 43, provides that a person may not be elected to, or be a member of, both Houses of the Parliament simultaneously. Because the disqualification prevents a person being chosen as well as being a member of both Houses, this prevents a person nominating for election to both Houses in an election. Multiple nominations are also prohibited by section 165 of the Commonwealth Electoral Act.
The disqualifications contained in section 44 were examined in some detail by the Senate Standing Committee on Constitutional and Legal Affairs in 1981. The Committee found the relevant provisions to be anomalous and out of date and recommended that they be comprehensively changed. This report, however, was written before most of the judgments of the Court of Disputed Returns to which reference has been made, and those judgments have considerably clarified the meaning and application of those provisions. [update: In 2018 the Joint Standing Committee on Electoral Matters produced two reports on section 44 matters in the context of the disqualifications occurring in the 45th Parliament.]
Determination of disqualifications
The Constitution, section 47, provides that, until the Parliament otherwise provides, any question respecting the qualifications of a member of either House and any question of a disputed election to either House shall be determined by the relevant House. This provision reflects the traditional power of a House to determine its own composition.
The Parliament has otherwise provided in the Commonwealth Electoral Act. Under sections 376 to 381 of that Act either House may refer any question concerning the qualifications of its members to the High Court, which is constituted as the Court of Disputed Returns, to hear and determine the question. The Court is required to hear the question in public, and has the power to:
- declare that a person was not qualified to be a member of either House
- declare that a person was not capable of being chosen or of sitting as a member of either House
- declare that there is a vacancy in either House.
The Court may remit questions of fact to a lower court for determination.
Questions relating to the qualifications of Senator Webster in 1975, Senator Wood in 1988 and Senators Culleton and Day in 2016 [update: , and the numerous dual citizenship matters arising in 2017,] were referred by the Senate to the Court under these provisions.
[update: In 2016 and 2017 there were several debates and questions raised concerning the threshold of evidence which the Senate might expect before contemplating a motion to refer questions about the qualifications of a senator: for example: SD, 7/11/2016, pp. 1909-31; SD, 8/8/2017, pp. 4912-8. The Senate’s approach has generally been to ask that the Court determine any genuine case where evidence has been put before the Senate indicating that a breach of the constitutional provisions may have occurred.
On several occasions, cross-bench senators proposed an audit of the citizenship status of all senators, by way of a Senate references committee inquiry: 9/8/2017, J.1641-2; 15/8/2017, J.1710-11; 17/8/2017, J.1762; 5/9/2017, J.1850-1. These were resisted, on the basis that they involved a reversal of the onus of proof, and because only the High Court could make an authoritative determination: see for example SD, 8/8/2017, pp. 4912-8. The President had earlier tabled correspondence requesting that the Presiding Officers conduct such an audit; a task beyond the remit of their offices: 8/8/2017; J.1599.
As possible dual citizenship cases continued to arise, however, the Senate agreed to establish a citizenship register, requiring declarations and documentation from senators in respect of their citizenship status, any previous foreign citizenships held and actions taken to renounce them, birth places of parents and grandparents, and associated details. An amendment to require the Committee of Senators’ Interests to inquire into the citizenship status of each senator was not supported. The committee was given oversight of the form of the register and procedures for its maintenance. The resolution also provided that knowingly making false statements, failing to provide statements on time, and failing to correct inaccuracies of which senators become aware may be dealt with as serious contempts: 13/11/2017, J.2179-82, J.2196-7. The House of Representatives established a similar register. Subsequently, the Parliament legislated a requirement that candidates complete a qualification checklist when nominating for election: see Commonwealth Electoral Act 1918, paragraph 170(1)(d). Amendments to the Act also provided for the checklists of successful candidates to be tabled in the relevant House of the Parliament, where they formed the basis of a broader qualifications register, established by each House by resolution: for the Senate, see 3/4/2019, J.4836-8.
The resolution establishing the new register also introduced procedural constraints on the reference of qualification matters to the Court of Disputed Returns, so that they may only be moved if a possible disqualification arises from facts not disclosed on the register. The referral process also encompasses a preliminary investigation by the Senators’ Interests Committee, which is required to take expert evidence on foreign citizenship law in relevant matters. One limitation of such procedures is that, like any other order of the Senate, they may be suspended by majority vote if the will to maintain them falls away. An equivalent process was adopted by the House of Representatives.
The rationale for these measures may be found in recommendations of the Joint Select Committee on Electoral Matters. In seeking to balance the need for compliance with the need for certainty, the committee reasoned that full disclosure by candidates at the time of nomination would better-inform those seeking to challenge a successful candidate’s qualifications by petition to the Court of Disputed Returns within the existing 40-day window after the return of the writs. In the committee’s view, a person’s eligibility in respect of matters so disclosed should not be able to be questioned in any other way. This could be achieved by the Houses agreeing to limit their use of the referral power to those matters not, or not fully, disclosed: for more detail, see the committee’s report, Excluded, particularly at paragraphs 4.5 to 4.15.]
A motion concerning the qualification of a senator takes precedence as Business of the Senate over other business.
The Commonwealth Electoral Act, sections 352 to 374, provides that the validity of any election to the Senate may be disputed by a petition addressed to the Court of Disputed Returns within 40 days after the return of the writ. Election is defined to include the appointment of a person to a casual vacancy. The Court must examine the petition in public and has the power to:
- declare that any person who was returned as elected was not duly elected
- declare any candidate duly elected who was not returned as elected
- declare any election absolutely void.
The Court may determine questions involving constitutional qualifications under these provisions.
The Constitution in section 46 provides a procedure whereby any person can seek a remedy for a member of either House continuing as a member while disqualified. The section provides:
Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.
The Parliament has exercised its legislative power under this section only to the extent of limiting the sums which may be claimed from a disqualified member to $200 for having continued as a member before the day on which the suit was originated and $200 for each day after that day.
There is nothing to require a senator to be absent from the Senate when the senator's qualification is under consideration by the Court of Disputed Returns, although a senator who continues to attend in the Senate in such a period may run a risk of a successful suit under section 46 of the Constitution. Senator Webster in 1975 absented himself while the Court considered his case, but Senator Wood in 1988 attended in the Senate and participated in proceedings while his case was before the Court. [update: In 2018 the High Court held that section 46 does not confer jurisdiction to determine whether a person is disqualified. An action under the Common Informers Act could succeed only where a person had first been found ineligible under one of the methods provided under section 47: Alley v Gillespie  HCA 11.]
[update: In 2017 proposals to curb the parliamentary powers of two ministers and limit the consideration of bills they proposed, while questions about their qualifications were before the Court, were defeated: 13/9/2017, J.1987-8; 14/9/2017, J.2016-7. At the same time, several questions without notice tested the proposition that the validity of ministerial decision-making may be affected should ministers be disqualified; a position rejected by the government on the basis of legal advice.]
Until the 1980s, the Senate appointed a Committee of Disputed Returns and Qualifications at the commencement of each Parliament but, its functions having been effectively subsumed by amendments to the Commonwealth Electoral Act, provision for the committee was deleted from the standing orders. However, SO 207 was retained for any residual operation it might have. It provides for any question concerning the election, choice or appointment of a senator which cannot, under the provisions of the Commonwealth Electoral Act, be brought before the Court of Disputed Returns, to be brought before the Senate by petition. A petition must be lodged within 40 days after the certificate of election has been tabled and accompanied by payment of a surety. In 2011 a petition complying with the requirements of the standing order was lodged with the Clerk and tabled by the President along with advice from the Clerk. The petition concerned the election of Senator Madigan and asked the Senate to refer certain questions to the Court of Disputed Returns. The Senate's response was expressed in the form of a resolution returning the petitioner's surety and a statement that this action was intended to conclude the Senate's consideration of the matter.
[update: The Court ruled in February 2017 that Rod Culleton was incapable of being chosen as a senator at the 2016 election, finding that he was subject to be sentenced for a disqualifying conviction throughout the whole period of the election, and declared Senator Georgiou elected to the place for which he had been returned. In May 2017, the President tabled a document from Mr Culleton, framed as a petition under standing order 207 disputing the election of Senator Georgiou, together with advice from the Clerk: 11/5/2017, J.1351. The petition sought to recontest matters determined by the Court of Disputed Returns, so it was difficult to see how it came within the residual operation of the standing order, which is limited to questions “which cannot, under the provisions of the Commonwealth Electoral Act, be brought” before that Court. Rather than reject the petition for non-compliance, the President tabled it for the information of senators. The Senate took no action in relation to the document. In any case, the relief it sought was beyond the power of the Senate: it asked the Senate to overturn the Court’s orders declaring Senator Georgiou elected and reinstate his predecessor. The President subsequently tabled a letter from Mr Culleton’s representatives asking that the Senate refer his case back to the High Court: 8/8/2017, J.1599. Again, the Senate took no action in respect of the letter.]
The Constitution, section 20, provides for the place of a senator to become vacant automatically if the senator is absent from the Senate without the Senate's permission for two consecutive months during any session. In the history of the Senate there has been only one occasion on which a senator has lost his seat because of non-attendance. Senator J. Ferguson, of Queensland, was elected to serve in the Senate from 1 January 1901, and his term of service was for three years. Because of non-attendance for two consecutive months, his seat became vacant, under section 20, on 6 October 1903.
The presence in the Senate of a senator found not to have been validly elected or to be disqualified does not invalidate the proceedings of the Senate in which the senator participated.
Designation of senators
The choice by the framers of the name of the upper house in the Commonwealth Parliament had the effect of conferring on its members the title of senator, a title used in the Constitution, and a title of their counterparts in the United States and some other countries.
The title “honourable” is granted to the following senators:
- the President of the Senate
- members of the Executive Council (current and former federal ministers and parliamentary secretaries)
- former members of state ministries, former Presidents of State Legislative Councils and former Speakers of State lower houses.
Senators who have been elected to places in the Senate at periodical Senate elections but whose terms as senators have not begun are referred to as senators-elect.
The principal disqualifications for senators probably apply equally to senators-elect, in so far as they render a person incapable of election to the Senate as well as membership of the Senate. Thus senators-elect probably cannot accept positions in the public service of the Commonwealth, a state or territory, because this would disqualify them under the provision relating to an office of profit under the Crown.
For the death or resignation of a senator-elect, see Chapter 4, Elections for the Senate, under Casual vacancies.
Oath or affirmation of office
The Constitution, section 42, requires senators to make and subscribe (sign) before the Governor-General, or some person authorised by the Governor-General, an oath or affirmation of allegiance in the form set out in the Constitution.
Senators make and sign the oath or affirmation at the first sitting of the Senate which they attend after the commencement of their terms as senators. Senators taking their places after a periodical or general election are sworn in by the Governor-General. Senators taking their places at other times are usually sworn in by the President, who is authorised by the Governor-General, in accordance with section 42, to administer the oath or affirmation.
Section 42 requires that a senator make and subscribe the oath or affirmation before taking the senator's seat in the Senate. A senator must therefore be sworn in before sitting in the Senate or participating in its proceedings, but there is nothing to prevent a senator performing other official functions before taking the oath or affirmation. Thus the Senate appoints senators to committees, and senators may participate in the proceedings of those committees, before they have been sworn in. For this purpose, membership of committees is often changed with effect from the date of commencement of the terms of new senators who are appointed to committees.
Immunities of senators
Senators have certain immunities under the law, as part of the law of parliamentary privilege. These immunities are set out in Chapter 2, Parliamentary Privilege.
Leave of absence
Because of the provisions of section 20 of the Constitution, under which the place of a senator becomes vacant if the senator, without the permission of the Senate, fails to attend the Senate for two consecutive months of any session, the Senate grants leave of absence to senators.
Leave of absence may be granted to a senator by motion on notice, the motion stating the cause and period of absence. A notice of motion to grant leave of absence takes precedence as Business of the Senate. A senator granted leave of absence is excused from service in the Senate or on a committee. A senator forfeits leave of absence by attending the Senate before the leave expires.
It is now the practice to grant leave of absence even for short periods when there is no danger of section 20 applying. One reason for this is that the Journals of the Senate record attendance of senators and whether leave of absence has been granted.
Section 20 applies only to absence during a session, so the absence of a senator during a period when the Parliament is prorogued does not activate the section.
It is not clear whether senators should be granted leave of absence during a long adjournment of the Senate to avoid disqualification under section 20. It can be argued that, when the Senate is adjourned, it is not possible for a senator to attend in the Senate, and all senators have implied permission to be absent during the adjournment. Erring on the side of caution, however, the Senate always grants leave of absence to all senators before a long adjournment. This grant of leave of absence covers new senators whose terms of office begin during a long adjournment.
Parties and party leaders
The standing orders and procedures of the Senate recognise the membership of senators of political parties and their holding office as leaders of political parties.
A senator's statement in the Senate that the senator is a member, a leader or office-holder of a political party is accepted for the purposes of recognition under the procedures. A senator who changes party membership or who becomes a leader of a party usually makes a statement to that effect to the Senate at the earliest opportunity. Statements concerning office-holders of parties are usually made by party leaders.
The leader in the Senate of the party or coalition of parties which has formed the ministry is recognised as Leader of the Government in the Senate, and the leader of the largest party not participating in the formation of the ministry is recognised as Leader of the Opposition in the Senate. These leaders are given a number of powers, such as the power to make nominations to committees, and certain precedence in receiving the call from the chair.
The standing orders and procedures of the Senate also recognise senators who are ministers and parliamentary secretaries. Ministers are given certain powers, such as the power to move for the adjournment of the Senate at any time without notice and to move a motion at any time without notice relating to the conduct of the business of the Senate. An order of 6 May 1993, as amended, allows parliamentary secretaries to exercise the powers of ministers except answering questions at question time and appearing for Senate ministers before committees considering estimates in relation to those ministers' responsibilities.
Seniority of senators
For certain purposes, such as the allocation of accommodation in Parliament House, the seniority of senators is significant. A list of a senators' seniority is maintained by the Usher of the Black Rod. Senators' seniority is determined in accordance with their period of continuous service as senators.
The senator with the longest continuous period of service used to be referred to as the “Father of the Senate”, but this title is now seldom referred to or used (as no woman senator has ever been in this situation, it is not clear what the title would be in that circumstance).
Conduct of senators
The standing orders of the Senate prescribe rules governing the conduct of senators during their participation in Senate proceedings. As these rules relate mainly to the conduct of debate, they are set out in Chapter 10, Debate, under Rules of debate and Conduct of senators.
Matters relating to the conduct of senators are also the subject of the Senate's Privilege Resolutions. Resolution 6(3) prohibits senators asking for or receiving any benefit in return for discharging their duties in any way. Resolution 9 enjoins senators to exercise their freedom of speech in the Senate with regard to the rights of persons outside parliament and not to make statements reflecting adversely on such persons without proper evidence. Resolution 5 provides for the publication by the Senate of responses by persons who have been adversely affected by references about them in the Senate.
Senators are subject to the contempt jurisdiction of the Senate, and may be adjudged guilty of contempt.
Provisions governing the conduct of senators were collected in a paper prepared by the Clerk for the Finance and Public Administration Legislation committee's 2001-02 inquiry into various private senator's bills dealing with political honesty, government advertising and parliamentary entitlements, and subsequently summarised in Brief Guide to Senate Procedure No. 22.
Senators may be censured by the Senate for misconduct. For the censure of ministers and members of other houses, see Chapter 19, Relations with the Executive Government, under Ministerial accountability and censure motions. It has been stated that it is not proper for a House to censure any member other than a minister, but this alleged principle appears to arise from a consideration of the situation in the House of Representatives and other lower houses which are controlled by the government of the day, in that any successful censure motion could only be moved by the government against an Opposition member. If the question is considered apart from that difficulty, however, it may well be concluded that a House properly so called may be justified in censuring its own members, apart from ministers, for unacceptable conduct.
A senator may be prosecuted for an offence which has also been dealt with as a contempt of the Senate.
In 1992, following dispute over the “Marshall Islands affair”, in which a minister was alleged to have sought improperly to influence the president of that country, the Senate passed a resolution relating to the development of a code of conduct for members of the Parliament and ministers. No such code of conduct has yet been recommended to, or adopted by, the Senate although, as a consequence of various agreements on parliamentary reform, entered into after the 2010 election to secure minority government in the House of Representatives, the Senators' Interests Committee received a reference to inquire into the development of a code of conduct for senators. The committee noted the shortcomings of a principles-based, aspirational code but set out a framework of elements of an effective code of conduct and complaints regime. [update: The Procedure Committee considered proposals for different codes of conduct in 2017 and again in 2019, but did not recommend their adoption: First report of 2017; First report of 2019.]
Questions to senators
Questions to senators and to chairs of committees at question time were abolished in 2009.
Procedures for the registration of senators' pecuniary interests are contained in special orders first adopted in 1994. Such procedures had been under consideration since 1983, but had not been adopted, mainly due to doubts about their effectiveness. They were finally adopted as part of a “package” of “accountability reforms” announced by the government following the resignation of a minister over alleged misallocation of certain cultural and sporting grants.
A special order of the Senate requires senators to declare specified interests, of themselves, and of their partners of which they are aware, which are then entered in a register, kept by a designated officer of the Senate and open to public inspection (those relating to partners are confidential). The order originally obliged senators to declare relevant interests during proceedings in the Senate. It had been the practice for senators, before the adoption of the order, to declare any interests in matters before the Senate. The requirement was abolished in 2003, but senators may still do so. The system for the registration of interests is supervised by a standing committee, called the Committee of Senators' Interests. The Senate's order declares that failure to comply with the order is a serious contempt of the Senate. Another order, adopted on 26 August 1997, requires senators to register gifts presented to them in their official capacity.
Historically, the formal requirements for registration of interests can be seen as the long term result of two significant inquiries. A Joint Committee of Pecuniary Interests of Members of Parliament was appointed in 1974 and reported in September 1975. The committee considered whether arrangements should be made for the declaration of interests of members of Parliament and, if so, whether a register of interests should be compiled and what it should contain. The committee examined the concept of a code of conduct and the arguments for and against a formal register of interests and concluded that an appropriate balance could be achieved between the flexible guidance of the former and the rigid requirements of the latter by instituting a system of declaration of interests in which it was compulsory to declare certain interests while declaration of others was discretionary.
The second inquiry was by the non-parliamentary Committee of Inquiry Concerning Public Duty and Private Interest, chaired by the Chief Justice of the Federal Court of Australia, Nigel Bowen, and established in 1978. The committee suggested a set of principles providing for the avoidance or resolution of conflicts of interest and applicable to various categories of persons holding public office or playing a role in public life. The committee's recommendations in relation to ministers were adopted, including confidential disclosure of pecuniary interests.
A motion proposing a system for the registration of senators' interests was referred to the Standing Orders Committee in October 1983. After lengthy consideration of and consultation on the issue, the Standing Orders Committee reported in May 1986 that there was a fundamental disagreement amongst its members about the effectiveness of the proposed register and the soundness of the proposals in the resolution relating to registration and declaration of interests. The committee considered that the question should be determined by the Senate.
Notice of a motion relating to the registration and declaration of senators' interests and the establishment of a Committee of Senators' Interests was given on 20 November 1986 and debated on 17 March 1987 but was unresolved before the 1987 double dissolution. Although it appears that the re-elected government intended to re-introduce the motion, this did not occur until well into the following Parliament. When this motion was debated in May 1992, the same fundamental disagreements about the effectiveness of the register were evident and debate was adjourned. Similar notices were again given shortly after the commencement of the 37th Parliament and again the Opposition claimed that the proposed system would be ineffective. Consideration of the matter was postponed until the Budget sittings later that year but, in the meantime, government senators and Senator Chamarette (Greens, WA) tabled declarations of their interests on 25 May 1993. Motions were debated on 19 and 30 August 1993 but were not dealt with conclusively until 17 March 1994 when the Committee of Senators' Interests was appointed. The Register of Interests, containing all senators' declarations, together with those of senior departmental officers, was tabled in the Senate on 9 June 1994 in accordance with the terms of the resolution of 17 March requiring this action within 14 sitting days.
Places in chamber
Each senator has a designated seat in the Senate chamber, with a desk.
Standing order 48 prescribes rules relating to senators' seating. The front seats on the right of the President are reserved for ministers, while the front seats on the left of the President are reserved for leaders of parties and senators designated as having responsibility for particular matters. In relation to seats other than front seats, senators are entitled to retain the seats occupied by them at the time of their taking their seats for the first time after their election so long as they continue as senators without re-election. Subject to any order of the Senate, any question relating to the occupation of seats by senators is determined by the President.
In practice senators sit in party groups, and seating arrangements are made by party whips, subject to the approval of the President. Members of the government party or parties sit to the President's right behind the ministers, and members of the Opposition party or parties sit to the left of the President behind Opposition senators designated as shadow ministers. Members of minority parties and independent senators sit on the cross-benches, that is, on the seats located on the curve of the horseshoe-shaped banks of seats.
A resolution passed in 1986 allows opposition speakers leading for the opposition to speak from the Deputy Leader of the Opposition's place.
Senators may not have on their desks items which are objectionable to other senators.
There are no rules laid down by the Senate concerning the dress of senators. The matter of dress is left to the judgment of senators, individually and collectively, subject to any ruling by the President. Officers attending on the Senate, such as ministerial advisers, are also expected to maintain appropriate standards of dress.
[update: These statements are based on rulings of Presidents and Chairs of Committees from the 1960s and 1970s, and on a report of the House Committee, adopted by the Senate in 1972. The House Committee concluded that, “rules relating to dress in the Chamber should not be necessary and that the choice of appropriate clothing should be left to Senators’ discretion”. This remains the current practice.
The rules of the Senate are directed at creating an appropriate framework for debate, and the conduct of senators is regulated only in so far as it is relevant to the maintenance of order. The question of appropriate dress is a matter that has been left to custom and the judgement of senators, except where a question of order arises. The Procedure Committee considered these matters in its First report of 2017, and recommended no change.]
Senators' remuneration and entitlements
Section 48 of the Constitution empowers the Parliament to determine the allowances of members of the Houses.
The remuneration, allowances and entitlements of senators are determined by the
Parliamentary Allowances Act 1952, the Remuneration and Allowances Act 1990 [update: Parliamentary Business Resources Act 2017 (which, in part, superseded the Parliamentary Allowances Act 1952 and the Remuneration and Allowances Act 1990)], and determinations made by the Remuneration Tribunal under the Remuneration Tribunal Act 1973. Superannuation entitlements of senators are covered by parliamentary superannuation acts. The provision of personal staff for senators is covered by the Members of Parliament (Staff) Act 1984.
The executive government determines and provides certain entitlements to members of the Houses, such as offices in their states and electorates.
In 1990 a decision by the government to provide certain postage entitlements to members of the Houses beyond the entitlements determined by the Remuneration Tribunal was challenged in the courts. The decision was the subject of dispute because it was said to favour government members over non-government members. The High Court held that the executive government has no power to provide benefits to members of the Houses in the nature of remuneration without statutory authorisation. The appropriation of money for such benefits in an appropriation act is not sufficient authority. Following this judgment, the Parliamentary Entitlements Act 1990 was passed to authorise the provision of certain benefits to members by the executive government. The Act sets out in general terms the benefits which the government may provide. [update: In 2017 the Parliamentary Business Resources Act replaced the work expenses framework under the 1990 Act, based on recommendations from an independent review: An Independent Parliamentary Entitlements System, February 2016. The Parliament also established the Independent Parliamentary Expenses Authority to provide independent statutory oversight of expenses and allowances.]
[update: As has been noted, laws determining allowances for members of the Houses are authorised by section 48 of the Constitution, and are taken to depend upon those members being validly elected. This became a matter of some interest with the numerous cases of senators being found to have been incapable of being elected during the 45th Parliament (see above under Qualifications of senators). In earlier cases, Attorneys-General advised that those whose elections were declared void were not entitled to retain salary payments made to them. However, these were dealt with by the passage of legislation to authorise the payments, or by the government of the day waiving the debts. In 2017 and 2018, the view was taken that payments of salary etc. purportedly made under section 48 of the Constitution were made without proper authority in cases in which the High Court subsequently declared that there was no valid election. Under section 16A of the Remuneration Tribunal Act 1973, payments made without proper authority automatically become debts due to the Commonwealth. Ultimately the government waived each of the debts that arose in this manner.]
Resignation of senators
Section 19 of the Constitution provides that a senator may resign office by a letter addressed to the President, or to the Governor-General if there is no President or if the President is absent from the Commonwealth. [update: If the President resigns as a senator, the resignation is addressed to the Governor-General: Constitution, s. 17.] The place of a resigning senator becomes vacant upon the receipt of the resignation by the President or Governor-General.
For the form of resignation, and principles covering the lodgment of resignation, see Chapter 4, Elections for the Senate, under Casual vacancies.
[update: During the 45th Parliament several senators resigned their places after doubts were raised as to their qualification under section 44 of the Constitution to be chosen at the 2016 election. The vacancies were notified to the Governors of the relevant states, in accordance with section 21 of the Constitution, together with advice that there were matters to be put before the Senate before the nature of each vacancy could be determined. Questions in respect of each vacancy were referred by resolution to the Court of Disputed Returns: Day 7/11/2016, J.374; Ludlam and Waters 8/8/2017, J.1599-1600; Parry 13/11/2017, J.2179; Lambie 14/11/2017, J.2201-2; Kakoschke-Moore 27/11/2017, J.2275. The Court made orders declaring each senator incapable of being chosen and for the respective vacancies to be filled by a special count of the ballots: see Appendix 7A.]
The President may, by leave of the Senate, admit distinguished visitors to a seat on the floor of the chamber.
The practice is for the President to inform the Senate that the distinguished visitor is present and to propose, with the concurrence of senators, to invite the visitor to take a seat on the floor of the chamber. When senators concur, the visitor is admitted and conducted to a chair on the left of the dais near the President's seat.
This honour is normally granted to heads of state and presiding officers of other houses.
It is not in order for senators to approach distinguished visitors in the chamber.
On three occasions in the past the Senate agreed to meet with the House of Representatives in the House chamber to hear addresses by presidents of the United States. This procedure was first adopted in 1992 on the occasion of an address by the then US president. It was stated at that time that the procedure was adopted on the basis that a similar honour had been granted to the Australian prime minister in Washington in accordance with the custom of the US Congress, and that granting the equivalent honour to the US president would not set a precedent. The procedure was repeated in 1996; it was felt that the same honour should be extended to the then president. In 2003 it was extended to the then US President and the Chinese President, who happened to be visiting at the same time. The practice had developed into government-controlled occasions, with the prime minister issuing the invitations and the Senate acquiescing. In its third report of 2003 the Procedure Committee recommended that the practice be abandoned after incidents at the last two addresses, when the Speaker of the House of Representatives purported to eject two senators from one meeting and exclude them from the other. The Privileges Committee supported this recommendation. The committees' recommendations that for future addresses the government hold meetings of the House to which senators would be invited were subsequently adopted and the honour has been extended to Prime Ministers or Presidents of other countries including the United Kingdom, Canada, Indonesia, New Zealand, India and Singapore.[update: The same approach was taken in 2020, when senators were invited to attend an address by the President of the Republic of Indonesia: 5/2/2020, J.1234.]
Seats for visiting members of the House of Representatives are made available behind the bar of the Senate. It is not in order for senators to approach visiting members in their seats.