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Part 2 Parliamentary - Disqualification of Members

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This is an unofficial consolidation

 

Disqualification of Members

34. Interpretation

In the succeeding provisions of this Part –

(a) “disqualified for membership of the Legislature”
means disqualified for membership of the Legislative Council and for membership of Legislative Assembly;
   
“member” in relation to a commission, council, board, committee, authority, trust or other body means –
(a) any member of the whether known as a member, commissioner, councillor, trustee, director or by any other title;
(b) any deputy, alternate or acting member of the body,

and includes a person holding the office of chairman or president or any other office on the body;

“member of the Legislature” means a member of the Legislative Council or the Legislative Assembly.

(b) a reference to the holding of any office or place is a reference to the holding of that office or place in a permanent, temporary, or acting capacity on a full-time, part-time or casual basis.

[CAAA section 31.]

35. Disqualification by reason of bankruptcy or convictions

A person is disqualified for membership of the Legislature if he –

(a) be an undischarged bankrupt, or a debtor against whose estate there is a subsisting receiving order in bankruptcy;
or

(b) has been in any part of Her Majesty’s dominions attainted or convicted of treason or felony.

[CAAA section 32.]

36. Holders of offices or places not disqualified except under sections 37 to 45

Except as provided by the succeeding section s of this Part –

(a) the election of a person as a member of the Legislature shall not be rendered void or affected in any other way;

(b) the seat of a person as a member of the Legislature shall not become vacant,

by reason of his holding any office or place of profit from or under the Crown or any other office or place.

  [CAAA section 33.]


37. Disqualification of certain office-holders and members of Parliament

(1) Subject to this Act a person is disqualified for membership of the Legislature if he –

(a) holds any office mentioned in Part 1 of Schedule 2; or

(b) is a member of the Parliament of the Commonwealth or the legislature of a Territory or another State of the Commonwealth.

(2) A member of either House of the Legislature is disqualified for membership of the other House.

 [CAAA section 34.]

38. Election of unqualified or disqualified person void

(1) If any person not qualified under section 10 or section 21 to be elected as a member of a House of the Legislature is elected as a member of that House, his election shall be void.

(2) If any person disqualified for membership of the Legislature by section 35 or section 37(1) is elected as a member of the Legislature, his election shall be void.

(3) If any person disqualified for membership of one House of the Legislature by section 37(2) is elected as a member of that House, his election shall be void.

 [CAAA section 35.]

39. Certain offices and places must be vacated before member can take seat

(1) Subject to subsections (2) and (8), this section applies to a person who –

(a) holds an office or place in the service of the Crown in right of the Commonwealth or another State of the Commonwealth or in the service of the government of, or any department or agency of the government of, the Commonwealth or a Territory or another State of the Commonwealth; or

(b) holds an office as a member of any commission, council, board, committee, authority, trust or other body, and was appointed as such a member by the Crown in right of the Commonwealth or another State of the Commonwealth, or by the government of, or any department or agency of the government of, the Commonwealth or a Territory or another State of the Commonwealth.

(2) Subject to subsection (4), the Governor may, by Order in Council exempt any office or place from the operation of this section and whilst that office or place remains so exempted this section shall not apply to a person by reason of his holding that office or place.

(3) Subject to subsection (4), the Governor may, by subsequent Order in Council, amend an Order made under subsection (2) or revoke the Order either absolutely or for the purpose of substituting another Order.

(4) An Order in Council shall be made under this section if and only if the making of the Order has been recommended by resolution passed by both Houses of the Legislature.

 (5) Subject to subsection (6), an Order in Council made under this section shall take and have effect on and from the day on which it is published in the Government Gazette.

(6) Where, by reason of an Order in Council made under subsection (3), an office or place previously exempted from the operation of this section will no longer be so exempted, that Order shall take and have effect at and from the expiration of 30 days from the day on which it is published in the Government Gazette.

(7) The Clerk of the Parliaments shall keep in his custody a copy of every Order in Council made under this section.

(8) This section does not apply to a person by reason of his being a member of the Citizen Forces or the Reserve Forces within the meaning of the Defence Act 1903 of the Parliament of the Commonwealth.

(9) If any person to whom this section applies is elected as a member of the Legislative Council at a general election, his seat shall become vacant on 22 May next following the election if he has not, before that date, resigned from or otherwise ceased to hold the office or place by reason of which this section applies to him.

(10) If any person to whom this section applies is elected as a member of the Legislature otherwise than as referred to in subsection (9) –

(a) he shall not take the oath, or make the affirmation, pursuant to section 29 until he has resigned from or otherwise ceased to hold the office or place by reason of which this section applies to him; and

(b) his seat shall become vacant at the expiration of 21 days after the date on which he is declared to be elected if he has not, before the expiration of that period, resigned from or otherwise ceased to hold the office or place by reason of which this section applies to him.

[CAAA section 36.]

40. Office or place vacated in certain cases

(1) Subject to subsection (2), this section applies to a person who –

(a) holds any office or place mentioned in Part 2 of Schedule 2 not being an office also mentioned in Part 1 of Schedule 2; or
(b) is a member of any commission, council, board, committee, authority, trust or other body mentioned in part 3 of Schedule 2.

(2) This section does not apply to a person by reason of his being the holder of any office or place, or a member of any body, ex officio as the holder of any of the principal executive offices of the Government liable to be vacated on political grounds.

(3) If any person to whom this section applies is declared to be elected as a member of the Legislature, he shall, upon and by virtue of being so declared, vacate the office or place by reason of which this section applies to him.

 [CAAA section 37.]

 41. Seats in Parliament vacated in certain cases

Subject to any resolution passed by the Legislature under section 42, if any member of the Legislature, after his election –

(a) ceases to be qualified under section 10 or section 21 to be elected a member of the House of which he is a member’ or

(b) becomes disqualified for membership of the Legislature by section 35 or section 37; or

(c) becomes a person to whom section 39 or section 40 applies; or

(d) takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors; or

(e) becomes of unsound mind; or

(f) takes any oath or makes any declaration or acknowledgement of allegiance, obedience, or adherence, to any foreign Prince or Power, or does, concurs in, or adopts any act whereby he may become a subject or citizen of any foreign State or Power, or whereby he may become entitled to the rights, privileges, or immunities of a subject or citizen of any foreign State or Power; or

(g) fails to give his attendance in the House of which he is a member for one entire session thereof without the permission of the House entered upon its journals,

his seat shall thereupon become vacant.

   [CAAA section 38.]

42. Provision for relief

(1) This section applies to any case where a person has, or it alleged that a person has, at any time (in this section called “the material time”)  become the holder of an office or place –

(a) specified in Part 1 or 2 of Schedule 2; or

(b) as a member of any commission, council, board, committee, authority, trust or other body specified in Part 3 of Schedule 2; or

(c) referred to in section 39(1),

and, at the material time, that person was a member of the Legislature.

 (2) If, in a case to which this section applies, it appears to the Legislature that the person concerned has, since the material time, resigned from or otherwise ceased to hold the office or place in question, and that it is otherwise proper so to do, the Legislature may, by resolution passed by both Houses, direct that his becoming the holder of that office or place at the material time shall be disregarded for the purposes of section 41 and the resolution shall have effect according to its tenor.

 (3) A resolution may be made under subsection (2), and a resolution made under that subsection shall have effect, notwithstanding that proceedings may have been commenced in the Supreme Court under section 44 and notwithstanding any declaration made by the Supreme Court under that section.

(4) The provisions of sections 67 (2) and (3)  and 156B (2) and (3) of the Electoral Act 1907 do not apply to or in relation to any vacancy occurring by operation of section 41 in a case to which this section applies.

[CAAA section 39.]


43. Presence of unqualified persons not to invalidate proceedings

The proceedings of the Legislative Council or Legislative Assembly shall not be invalidated by reason of the presence in that House of –

(a) any person not qualified under section 10 or section 21 to be elected a member of that House; or

(b) any person disqualified by section 35 or section 37 for membership of that House; or

(c) any person whose seat as a member of that House has become vacant by operation of section 39 or section 41.

[CAAA section 40.]

44. Jurisdiction of Supreme Court

(1) Any person entitled to vote for the election of a member of the Legislative Assembly at a general election may apply to the Supreme Court, in accordance with Rules of Court, for a declaration as to whether or not –

(a) by operation of section 38 the election of that person or another person as a member of the Legislature is void; or

(b) by operation of section 39 or section 41 the seat of that person or another person as a member of the Legislature has become vacant; or

(c) by operation of section 40 that person or another person vacated an office or place.

(2) Upon any application made under subsection (1) by a person other than the person in respect of whom a declaration is sought, the person in respect of whom a declaration is sought shall be the respondent; and the applicant shall give such security for the costs of the proceedings not exceeding $500 as the Supreme Court may direct.

(3) In hearing and determining an application under this section the Supreme Court shall give effect to any resolution made under section 42(2) in respect of the person in respect of whom a declaration is sought.

(4) An application under subsection (1) shall be heard and determined by the Full Court of the Supreme Court.

[CAAA section 41.]


45. Power to amend Schedule 2

(1) Subject to subsection (2), the Governor may, by Order in Council, amend Schedule 2.

(2) An Order in Council shall be made under this section if and only if the making of that Order has been recommended by resolution passed by both Houses of the Legislature.

(3) An Order in Council made under this section shall take and have effect –

(a) in the case of an Order adding an office to Part 1 of Schedule 2, or adding an office or place to Part 2 of Schedule 2 or adding a commission, council, board committee, authority, trust or other body to Part 3 of Schedule 2 – at and from the expiration of 30 days from the day on which the Order is published in the Government Gazette; or

(b) in the case of any other Order – on and from the day on which the Order is published in the Government Gazette.

(4) The Clerk of the Parliaments shall keep in his custody a copy of every Order in Council made under this section.

[CAAA section 42.]