§ 141. “A Member of the Other House.”

“English peers are ineligible to the House of Commons, as having a seat in the Upper House; and Scotch peers, as being represented there by virtue of the Act of Union; but Irish peers, unless elected as one of the representative peers of Ireland, may sit for any place in Great Britain.” (May's Parl. Prac. 10th ed. p. 229.)

A provision to this effect, founded on the constitutional practice of the Imperial Parliament, is common to the Constitutions of all the Australian colonies.


44. Any person who—

  • (i.) Is under any acknowledgment of allegiance, obedience, or adherence143 to a foreign power, or is a subject or a citizen144 or entitled to the rights or privileges of a subject or a citizen of a foreign power: or
  • (ii.) Is attainted of treason145, or has been convicted and is under sentence, or subject to be sentenced, for any offence146 punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or
  • (iii.) Is an undischarged bankrupt or insolvent: or
  • (iv.) Holds any office of profit under the Crown147, or any pension148 payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or
  • (v.) Has any direct or indirect pecuniary interest in any agreement149 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 sub-section iv. does not apply to the office of any of the Queen's Ministers of State for the Commonwealth150, or of any of the Queen's Ministers for a State151, or to the receipt of pay, half pay, or a pension by any person as an officer or member of the Queen's navy or army152, or to the receipt of pay as an officer or member of the naval or military forces of

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the Commonwealth by any person whose services are not wholly employed by the Commonwealth.

HISTORICAL NOTE.—In the Commonwealth Bill of 1891, the provisions as to disqualifications and vacancies were contained in clauses 46, 47, 48, and 49 of Chap. I. Clause 46 provided for the disqualification of persons under certain disabilities; clause 47 declared vacant the seats of members becoming subject to such disabilities; clause 48 provided for both disqualification and vacancy in case of contractors; and clause 49 did the same in the case of persons holding or taking an office of profit under the Crown. The same arrangement was followed in the Adelaide draft of 1897; but at the Melbourne session, before the first report, the four clauses were re-arranged into two: one disabling certain persons from being chosen or sitting as members, the other vacating the seats of members in certain cases. The debates will be most conveniently referred to under the heads of the several disabilities:

Foreign Allegiance.—At the Adelaide session, Mr. Gordon suggested the insertion of words removing the disability of a person who has taken an oath of foreign allegiance, if he since become a naturalized British subject. No amendment was moved. (Conv. Deb., Adel., p. 736.)

Attainder or Conviction.—In the Commonwealth Bill of 1891, the provision was that a person “attainted of treason, or convicted of felony or any infamous crime” should be incapable “until the disability is removed by…the expiration or remission of the sentence, or a pardon, or release, or otherwise.” In Committee, Mr. Wrixon objected to the express provision that an ex-convict might be a member of Parliament, and proposed to make the disqualification permanent; but this was negatived by 27 votes to 9. (Conv. Deb., Syd. [1891], pp. 655–9.) At the Sydney session, 1897, Mr. Barton mentioned a suggestion by Sir Samuel Griffith to substitute more precise terms for “felony or other infamous crime.” (Conv. Deb., Syd. [1897], pp. 1020–2.) Accordingly at the Melbourne session, before the first report and after the fourth report, the provision was altered to its present form. (See Conv. Deb., Melb., p. 2445.)

Bankruptcy or Insolvency.—At the Sydney session, 1897, a suggestion by the Legislative Assembly of New South Wales, to omit the disqualification of “an undischarged bankrupt or insolvent or a public defaulter” was supported by Mr. Carruthers, but was negatived. (Conv. Deb., Syd. [1897], pp. 1015–9.) The same omission was again moved by Mr. Carruthers at the Melbourne session. It was argued on the one hand that bankruptcy did not necessarily involve moral delinquency; and on the other that, for the public security, a bankrupt ought to be disqualified until the court has pronounced upon his conduct and given him a discharge. The amendment was again negatived. (Conv. Deb., Melb., pp. 1931–41.)

Office of Profit.—Conv. Deb., Syd. (1891), pp. 660–2, 898; Conv. Deb., Adel., pp. 754–6; Conv. Deb., Syd. (1897), pp. 1028–9. At the Melbourne session, Sir John Forrest moved to insert an exemption in favour of “any of the Queen's Ministers in a State,” which was agreed to. (Conv. Deb., Melb., pp. 1941–2. See ib. p. 2448.)

At the Adelaide session, Sir Geo. Turner suggested the insertion of a provision similar to section 6 of the Constitution of Victoria, making it penal for any person, while he is a member of Parliament, or within six months after ceasing to be a member, to accept any office of profit under the Crown. After debate a proposal was made by Sir William Zeal, to the effect that until the Parliament otherwise provides, no person while a member or within six months of ceasing to be a member should hold or take any office which would disqualify a person from being chosen or sitting as a member. This was carried by 19 votes to 18. (Conv. Deb., Adel., pp. 739–53, 1198.) At the Sydney session, a suggestion by the Legislative Council of New South Wales, that this provision be omitted, was agreed to by 19 votes to 10. (Conv. Deb., Syd. [1897], pp. 1029–34.)

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Agreement with the Public Service.—Conv. Deb., Adel., pp. 736–7; Conv. Deb., Syd. (1897), pp. 1022–8.

General.—At the Sydney session, 1897, Mr. Glynn, in accordance with one of three alternative suggestions made by Sir Samuel Griffith, proposed to insert at the beginning of the clause the words “until the Parliament otherwise provides.” This was negatived by 26 votes to 8. (Conv. Deb., Syd. [1897], pp. 1012–5.)