Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
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.