Two people want to share the job of MP for Higgins. Is it constitutional?
- Written by Anne Twomey, Professor emerita, University of Sydney
Can the job of being a federal member of parliament be shared by two or more persons? Two prospective candidates for the inner-Melbourne federal seat of Higgins, Lucy Bradlow and Bronwen Bock[1], have announced that they will run as job-sharing independent candidates. They say they will “work week-on, week off, with a handover at the end of each week”. Is this legally and constitutionally valid?
Bradlow and Bock claim[2] “there are no legal barriers to the inclusion of two candidates in either the Commonwealth of Australia Constitution Act or the Commonwealth Electoral Act 1918”. They argue the Constitution permits parliament to change the number of members of parliament, and does not specify a particular number of members per seat.
They conclude that “the only possible barrier to two people running to represent the same electorate is that previous candidate nomination forms for the House of Representatives […] only allowed space for the entry of the name of one candidate” and the form should be “updated” to allow two or more names to be entered as “the candidate”.
What are the legal barriers?
It will take a lot more than “updating” an old form for Bradlow and Bock to be able to nominate validly as job-sharing candidates for Higgins.
Section 57[3] of the Commonwealth Electoral Act says:
One member of the House of Representatives shall be chosen for each Electoral Division.
Section 163[4] provides that “a person” is qualified to be elected as “a member” of the House of Representatives if certain criteria, such as age, citizenship and qualification as an elector, are met. There is no provision for more than one person to be elected as the “one member” for an electorate in the House of Representatives.
Nominations are required, by section 166[5], to be in the form set out in the schedule. This only provides for individual candidates to nominate for election as a member (not job-sharing candidates to be elected as a single member). A political party cannot nominate more than one candidate for an electoral division. Section 172[6] provides for the Electoral Commissioner to reject nominations that do not comply with section 166.
Section 284[7] deals with the outcome of elections. It says that once it has been ascertained that “a candidate” has been elected to a seat, the divisional returning officer shall publicly declare “the name of the candidate”. The electoral commissioner then certifies that name on the election writ, which is returned to the governor-general.
There would have to be major reforms to the Commonwealth Electoral Act (including to the form of the ballot paper) if it were proposed either that two candidates could run together to be “one member” for an electorate, or if two members could represent it on a job-sharing basis.
What are the constitutional barriers?
The Constitution does not determine whether electorates are single-member or multi-member. It left that up to parliament to decide under its electoral legislation. But there are restrictions on the number of members of parliament.
Section 24 [8]of the Constitution ties the number of members of the House of Representatives to twice the size of the Senate. It also allocates the number of members in each state according to that state’s population as a proportion of the national population.
So if you had a system where you could have two job-sharing members in Higgins, that would mean you’d have to get rid of another member elsewhere in Victoria to stay within Victoria’s allocated number.
If every electorate could have two or more job-sharing members, it would be absolutely chaotic, as one wouldn’t know until each election how many members were elected and whether the number breached the Constitution.
For this reason, the only way to make it work would be to say there was only one “office” of member of parliament for an electorate, but that its duties could be shared by two or more people.
But that wouldn’t work either. This is because the Constitution treats members as persons, not offices. Before a person can sit or vote in the House of Representatives, section 42[9] of the Constitution requires the “member” to be sworn in. It doesn’t permit two people to be sworn in as a single member.
Section 37[10] of the Constitution refers to the resignation of “a member” (not one or more job-sharers) and section 33[11] refers to the election of “a new member” to fill a vacancy in the House of Representatives.
The provisions in the Constitution concerning the qualification[12] and disqualification[13] of members of parliament are also directed at individuals. The Constitution simply does not contemplate a “member” being comprised of two or more people who are subject to different qualifying or disqualifying circumstances.
While Bradlow and Bock have stated that if one of them resigns or becomes disqualified, that would mean that both of them would be – that’s just their view of what should happen. There is nothing in the Constitution or the legislation that addresses the issue, because both are predicated on there being a single member who is an individual person.
If each of the job-sharers, having been sworn in as members, turned up to vote in the house at the same time, each would be fully entitled to vote, giving their electorate double representation. It is not enough to say they have an arrangement between themselves to attend on separate weeks. This would not remove their legal entitlement as a member to attend or vote. Further, any contract that constrained a member from exercising his or her right to vote would be invalid, because it would be treated, under the law, as a contract for an “improper purpose”.
Read more: Changing the Australian Constitution was always meant to be difficult – here's why[14]
Has this been tried elsewhere?
In 2015 in the United Kingdom, two Green party candidates[15] sought to job-share. They took legal proceedings against the electoral officer who rejected their nomination. They argued references in statutes to a “candidate” and “member” in the singular should be interpreted as including the plural, and the law had to be interpreted in a manner consistent with the European Convention of Human Rights.
The High Court of England and Wales rejected[16] their argument. Justice Wilkie pointed out that job-sharing by members of parliament would give rise to many difficult practical and conceptual problems, and these were not something a court was equipped to deal with or should determine through statutory interpretation. It was a matter for parliament to resolve, not the courts.
The same point should be made here in Australia. If job-sharing for members of parliament is desired, then at the very least this should be the subject of proper consideration and legislation by parliament to make the system workable.
But even then, it would be very difficult to make it consistent with the current constitutional provisions, so a referendum would be needed. This would also be the most democratic course, as the people could have their say about how they wanted to be represented.
References
- ^ Lucy Bradlow and Bronwen Bock (bradlowbock.com.au)
- ^ claim (bradlowbock.com.au)
- ^ Section 57 (www.austlii.edu.au)
- ^ Section 163 (www.austlii.edu.au)
- ^ section 166 (www.austlii.edu.au)
- ^ Section 172 (www.austlii.edu.au)
- ^ Section 284 (www.austlii.edu.au)
- ^ Section 24 (www.austlii.edu.au)
- ^ section 42 (www.austlii.edu.au)
- ^ Section 37 (www.austlii.edu.au)
- ^ section 33 (www.austlii.edu.au)
- ^ qualification (www.austlii.edu.au)
- ^ disqualification (www.austlii.edu.au)
- ^ Changing the Australian Constitution was always meant to be difficult – here's why (theconversation.com)
- ^ two Green party candidates (www.theguardian.com)
- ^ rejected (www.bbc.com)
