Candidacy of Local Councillors for Federal Office

2002–03 No. 21, 3 December 2002

This Research Note discusses issues profit under the crown', agreeing it was The court concluded that the provision highlighted by a recent attempt by the a grey area which would benefit from regarding federal candidacy was Queensland Government to require replacing the current disqualification invalid. It unanimously held that this local councillors to vacate office if provisions of section 44 with new, less was because it was inconsistent with seeking election to federal Parliament. ambiguous arrangements (similar Commonwealth electoral law. The points were made in a 1981 Senate majority also held that the State Who can Seek Election to Committee report).5 The Government Federal Parliament? Parliament 'did not have the legislative endorsed the suggestion 'in principle', power to enact such a law'.7 The qualifications for seeking federal but with constitutional change being The outcome relied on the court's office are embedded in the exceedingly difficult to achieve, opinion that the Queensland law: Constitution, and in sections 163 and nothing further has happened. 164 of the Commonwealth Electoral should be characterised as a law relating The main issue with section 44 is Act 1918 (the Act).1 Section 44 (iv) of to qualification to stand for election to considering what sort of conflicts of federal parliament, rather than a law the Constitution, states that a person interest should prevent a person being relating to the terms and conditions who 'holds any office of profit under a candidate for, or member of, upon which a person may hold the State the Crown …' cannot be chosen to sit 8 parliament. This issue was highlighted office of councillor. in Parliament. when Queensland decided to try and The Boswell Bill Office of Profit prevent candidates for State or federal Prior to the Queensland Court handing The effect of the 'office of profit' office retaining positions they might down its decision, Queensland provision remains unclear.2 While hold as local councillors. National Party Senator Ron Boswell litigation has clarified that some The Queensland Local had tabled in federal Parliament the people—such as State and federal Government Act Changes Commonwealth Electoral Amendment public servants—are not eligible to In 2001, the Queensland Parliament (Prevention of Discrimination Against stand for Parliament,3 no one is sure amended the Local Government Act Members of Local Government whether local councillors are affected. 1993, inserting s. 224A(b), to read: Bodies) Bill. This Bill would have First, not all councillors hold an 'office amended s. 327 of the Act, concerning of profit': only those paid for their A councillor ceases to be a councillor interference with political liberty. A services do so. Second, it is a matter of if— new clause was to be added, stating: debate whether councillors hold office under the Electoral Act 1992, section 'under the crown'.4 88(3), the councillor becomes a A law of a State or Territory has no candidate for an election as a member of effect to the extent to which the law The second question arises because the Legislative Assembly; or discriminates against a member of a councillors are not appointed by local government body on the ground under the Commonwealth Electoral Act government but elected under a system that: 1918 (Cwlth), section 176, the established by legislation. That is, they councillor is declared to be a candidate (a) the member has been, is, or is to hold office not at the discretion of the for an election. be, nominated; or executive, but as a result of elections The Local Government Association of (b) the member has been, is, or is to held under acts of the State Queensland (LGAQ) was unhappy be, declared; parliaments. This may mean they are about the new law, believing it unfairly as a candidate in an election for the not 'under the crown'. discriminated against local councillors. House of Representatives or the Senate. In 1997 the House of Representatives They successfully challenged the The Bill was tabled on the last sitting Committee on Legal and provision relating to federal candidacy day (27 September 2001), lapsed when Constitutional Affairs completed its in the Supreme Court, after succeeding Parliament was prorogued, and had not report on Aspects of Section 44 of the in getting the case remitted down from been re-introduced at the time of Australian Constitution. They the High Court.6 writing. addressed the question of 'office of Should Local Councillors be other parliaments. People should not councillor, without preventing them Disqualified? be discouraged from transferring being a candidate. The distinction There are arguments both for and their skills to these arenas. between 'being chosen' and 'sitting' against what the Queensland law Some who opposed the law argued that already exists in the Constitution and 13 sought to achieve. Those supporting a more appropriate approach would be the Act. This approach would the new law argued: 9 to require local councillors to stand nevertheless have its challenges, and could raise questions about whether a • the situation for local councillors down from their duties while they were similar approach should be taken to should mirror existing federal law, a candidate, only resigning from local candidacy for federal office of State which prevents a sitting State MP government if they were actually and Territory MPs (currently from being a candidate for federal successful in the State or federal 11 prohibited by s. 164 of the Act). Parliament election. The problem with the legislative • local government should not be Is any Action Needed? approach is that it relies on the High treated as a 'training ground' for The question is what is the objective of Court accepting that local councillors aspiring politicians, but as a tier of the framework for elections? do not hold an 'office of profit'. The government requiring committed The challenge is to have a regime that only sure way to resolve these (and representatives. It would therefore avoids conflict-of-interest situations or related) issues is through be good to discourage people from the abuse of ratepayers' funds, while at Constitutional change to restructure seeing it as merely a stepping stone the same time ensuring no one is section 44. Progress on this front to 'higher' ambitions, and unnecessarily impeded from seeking awaits a bipartisan initiative to take • ratepayers should not have to pay State or federal office. Some would forward suggestions made by the councillors who are not also say the system should not be parliamentary committees (referred to concentrating on their local biased in favour of established political earlier) in 1981 and 1997. responsibilities. parties over independents. Those who opposed it argued: 10 If the Commonwealth wants to ensure Dr Ian Holland councillors can become MPs, need it Politics and Public • the law was being implemented to Administration Group prevent Labor's political rivals act now the Queensland law has been Information and Research (including independents) from using invalidated? Perhaps it does, as the fate Services local government as a platform for of the Queensland law does not Views expressed in this Research Note prevent other States trying similar are those of the author and do not seeking State or federal office necessarily reflect those of the strategies. Certainly, legal academic Information and Research Services • it was inconsistent to require only Anne Twomey has called into question and are not to be attributed to the local councillors to resign their jobs Department of the Parliamentary the soundness of the Supreme Court's Library. Research Notes provide if they were to be candidates, but to reasoning in the case.12 The Boswell concise analytical briefings on issues leave others—such as union Bill might be one way to pre-empt of interest to Senators and Members. officials—free to continue in their As such they may not canvass all of the such events. key issues. Advice on legislation or jobs when they stood as candidates, legal policy issues contained in this and Alternatively, the Commonwealth paper is provided for use in could seek to legislate to prevent a parliamentary debate and for related • the skills and knowledge of parliamentary purposes. This paper is person from sitting in federal not professional legal opinion. experienced councillors can benefit Parliament while also being a  Commonwealth of Australia Endnotes ISSN 1328-8016

1. For a comprehensive discussion of qualifications and disqualifi-cations, see Gerard Carney, Members of Parliament: Law and Ethics, Prospect Media, St Leonards, NSW, 2000. 2. Kathryn Cole, 'Office of profit under the crown' and membership of the Commonwealth Parliament, Issues Brief no. 5, 1993, Parliamentary Library. 3. Sykes v Cleary, (1992) 176 CLR 77. 4. See, e.g. Sydney City Council v Reid, (1994) 34 NSWLR 506. 5. The issues are discussed in more detail in Bob Bennett, 'Candidates, Members and the Constitution', Research Paper no. 18, 2001–02, Parliamentary Library. 6. LGAQ (Inc) v State of Qld, [2001] QCA 517; LGAQ (Inc) v State of Qld, [2001] HCA 75; Stephen Fynes-Clinton, 'Riding the legal merry-go-round', Council Leader, vol. 27, no. 6, 2001–02, pp. 20–3. 7. Anne Twomey, 'The limitation of State legislative power', Constitutional Law and Policy Review, vol. 4, no. 1, 2002, p. 18. 8. LGAQ (Inc) v State of Qld, Williams JA, para. 76. 9. The Act, s. 164; Allon Lee, 'The Right to Stand', GovernmentNews, November 2001, p. 20; Mr Mickel, Queensland Parliamentary Debates (QPD), 17 May 2001, p. 1066; Mr English, p. 1045. 10. Mr Seeney, QPD, 17 May 2001, p. 1048; Mr Hopper, p. 1049; Mr Wellington, p. 1057. 11. Mr Bell, QPD, 17 May 2001, p. 1054. 12. Anne Twomey, op. cit.

13. Examples include the Act, s. 379.