Opinion Number. 1787

Subject

ELECTIONSSENATOR ELECT: DISQUALIFICATION FROM BEING CHOSEN OR SITTING AS A SENATOR: WHETHER A PERSON IS DISQUALIFIED FROM SITTING AS A SENATOR IF THE PERSON HOLDS AN OFFICE OF PROFIT UNDER THE CROWN AFTER DATE OF ELECTION AS A SENATOR AND BEFORE COMMENCEMENT OF TERM ON 1 JULY: ‘INCAPABLE OF BEING CHOSEN OR OF SITTING AS A SENATOR’: ‘HIS PLACE’: CASUAL VACANCIES

Key Legislation

CONSTITUTION ss 7, 13, 15, 44, 45

Date
Client
The Attorney

I understand that advice is asked as to whether a person who has been elected as a senator and is desirous of accepting employment in the Commonwealth service for a period expiring not later than the 30th June next would, if he accepted such employment, be disqualified from sitting as a senator from the 1st July.

Hereunder I state my views for your consideration.

Sections 13, 44 and 45 of the Commonwealth Constitution provide (inter alia) as follows:

13 … the places of senators shall become vacant at the expiration of six years from the beginning of their term of service.

The election to fill vacant places shall be made within one year before the places are to become vacant.

For the purposes of this section the term of service of a senator shall be taken to begin on the first day of July following the day of his election …

44. Any person who—

(i)  Is under any acknowledgement 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

(ii)  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

(iii) Is an undischarged bankrupt or insolvent: or

(iv) 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

(v) 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. …

45. If a senator or member of the House of Representatives—

(i)  Becomes subject to any of the disabilities mentioned in the last preceding section: or

(ii)  …

(iii) …

his place shall thereupon become vacant.

It is to be observed that the person in question is but a senator elect. He is not actually in office. His is not sitting as a senator nor is he yet entitled to sit as a senator, and he thus has no senatorial ‘place’. He will not be entitled to sit until the commencement of his term of service on 1st July.

In section 44, the fact that a person holds an office of profit under the Crown disqualifies him from being chosen or sitting as a senator. Only the two events of being chosen (in this case, chosen by election (section 7)) and sitting are expressly mentioned in the section. Where the choice of senator is for a casual vacancy under section 15 of the Constitution, there is no interval between the choosing of the senator and the commencement of his term of service, because he is chosen to hold a vacant place. But where, as here, the choice of senator is by election under section 7, there will normally be a considerable interval between the date of election and the date of the commencement of the term of service. In section 44, ‘sitting’ as a senator can only mean sitting upon, and after, the date upon which the term of service as senator is to commence. Thus, ‘sitting’ in the case of election under section 7 has a definite relation to the date of commencement of the term of service, and in point of time signifies that date.

Is there then any implication in the section that if any one of the kinds of status mentioned in the section is attributable to a senator elect in the interval between the date of election and the date for sitting, he becomes disqualified from sitting? I think there is no such implication. The section is concerned with the kinds of status which are to disqualify a person from becoming a senator (or member of the House of Representatives). The two critical events—election and sitting (in the sense just indicated)—in the course of becoming a senator or member are specified, and it is to those two events that the disqualifications must be taken to be related. Moreover the section speaks in the present tense and in the present tense only. A person is disqualified who—

(i)  Is under any acknowledgement of allegiance … or is a subject or a citizen …. of a foreign power; or

(ii)  Is attainted of treason, or has been convicted and is under sentence or subjected to be sentenced …; or

(iii) Is an undischarged bankrupt or insolvent; or

(iv) Holds any office of profit under the Crown …; or

(v) Has any … pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than …

The natural reading therefore is that what the section is looking to is the condition of the person as to status, not only in relation to the two events of election and sitting but strictly to that condition as at the time of each of those events. In this view no implication seems to be open as to an intention in the section to concern itself with any other time or period of time.

As against this view, it is arguable that section 44 does not apply to the election and the sitting as separate events, but that the two events are so connected as to be virtually a single event, the sitting being the natural sequel to the election, and the sitting being expressly mentioned so as to provide for a disability occurring after the election and before the date for sitting. In other words, the argument would be that the section seeks to exclude persons having any of the named disabilities from candidature for office as senator or member, and that purpose would be defeated if a candidate, not being disqualified at the date of election, could, without disqualification, later become subject to any of the disabilities, even though he became free from it before the actual date for sitting.

The answer to that argument is, I think, that it necessitates reading into the section an intent for which there is no positive foundation and which cannot be supported without express words. For instance, at the end of that part of section 44 which is quoted above some such words as the following would be necessary—‘and he shall also be incapable of sitting as a senator or a member of the House of Representatives if he becomes subject to any of the disabilities mentioned in this section after being chosen as a senator or a member of the House of Representatives, notwithstanding that he may have ceased to be subject to such disability at the date upon which he becomes entitled to sit as a senator or a member of the House of Representatives’. To my mind the section cannot bear such an extension of its language, and I think therefore that such an argument must fail.

Section 45 is a natural sequel to section 44. It is concerned with disabilities occurring after the person has become a senator, for it speaks of ‘his place’. As the person in question has not yet a ‘place’ and has not yet become a senator, that section would have no relevance to him.

My view therefore is that the answer to the question upon which advice is asked is ‘No’.

[Vol. 37, p. 295]