PARLIAMENT NOMINATION BY member of parliament granted leave of absence for military purposes OF colleague to ACT AS ABSENT MEMBER’S PROXY IN parliament: APPOINTMENT BY elector absent as member of a Defence organization OF proxy to exercise ABSENT ELECTOR’S ELECTORAL franchise
Constitution ss 8, 23, 30, 40, 42, 43, 44
The following letter received by the Prime Minister from the Honourable H.V.C. Thorby, M.P., has been forwarded to me for advice:
In view of the seriousness of the war position overseas and the possibility that a number of members of the Federal Parliament will be engaged on active service at home or abroad, I would again direct your attention to the suggestion I made in the House that immediate steps should be taken by the Government to enable any member who may be granted leave of absence for military purposes, or other work associated with defence, to have the power to nominate a colleague to act as his proxy in Parliament during his absence.
I am convinced that it is imperative to take this action for the reason that Parliamentary pairs are very often unsatisfactory even in peace time.
In addition to the foregoing, I contend that every Australian leaving these shores as a member of any defence organisation should have the power to nominate a person as his proxy to exercise his electoral franchise during his absence.
I cannot overstate the importance of these two suggestions and I feel sure that you will recognise the justice of maintaining the rights in Australia of those men and women who may be serving their country overseas.
Concerning the suggestion that a senator or member granted leave of absence for military purposes have power to nominate a colleague to act as his proxy in Parliament, the following appear to be the only provisions of the Constitution which need be considered:
23. Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote. The President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the negative.
40. Questions arising in the House of Representatives shall be determined by a majority of votes other than that of the Speaker. The Speaker shall not vote unless the numbers are equal, and then he shall have a casting vote.
42. Every senator and every member of the House of Representatives shall before taking his seat make and subscribe ... an oath or affirmation of allegiance ...
43. A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House.
Section 44 prescribes the grounds on which a person ‘shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives’. A distinction is drawn in sections 43 and 44 between a person being chosen, and a person sitting, as a senator or member of the House of Representatives. A person by reason only of being chosen becomes a senator or a member of the House of Representatives without taking his seat. It is, however, in my opinion, the intention of the Constitution that a member of either House of the Parliament can only participate in the exercise of the powers of the House when he is actually sitting therein.
I am, therefore, of opinion that it is not within the power of either House to make a rule permitting its members to vote by proxy, nor is it within the powers of the Parliament to legislate to that effect.
Some support to this view is, I think, to be found in the provisions of sections 23 and 40 of the Constitution; the provision of section 3 that ‘each senator shall have one vote’ is, I think, a bar to any senator present at the meeting from using the proxy.
It might be contended that a senator acting as proxy for another senator would not have another vote but that he would be merely the instrument by which the senator who gave the proxy was exercising his vote.
I think, however, that the senator acting as proxy would be exercising a vote in addition to his own and would in effect have more than one vote.
Section 40 does not expressly limit the number of votes which a member of the House of Representatives shall have but having regard to the expression ‘other than that of the Speaker’ appearing at the end of the first sentence of the section I think the necessary implication is that a member of the House of Representatives shall have one vote only.
The considerations applying to the House of Representatives under section 40 are, therefore, similar to those applying to the Senate under section 23.
As to the suggestion that an Australian leaving these shores as a member of a Defence organization should have power to nominate a person as his proxy to exercise his electoral franchise, sections 8 and 30 of the Constitution are relevant. Those sections read as follows:
8. The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once.
30. Until the Parliament otherwise provides, the qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State; but in the choosing of members each elector shall vote only once.
If provision were made for voting by proxy and a proxy were given to a person who was an elector he would, I think, if he acted on it be voting more than once in the choosing of a senator or member, as the case may be.
If, therefore, this suggestion were adopted it would be necessary to provide that the person who may exercise the proxy must be a person who is not qualified to be an elector.
Such a provision would, in my opinion, be anomalous and also very difficult to administer.
I suggest, therefore, that if it is desired that the persons in question should have the opportunity of exercising the franchise while absent from Australia, it would be preferable to provide some means for the personal exercise of the franchise.
[Vol. 32, p. 417]