The Justice Committee has examined the Constitution Amendment Bill and recommends that it be passed. We recommend all amendments unanimously.

The purpose of the bill is to address the risk of a potential gap in the continuity of executive government following an election. The Constitution Act 1986 requires all Ministers of the Crown to be members of Parliament (MPs). The Electoral Act 1993 provides that MPs cease to be members at the close of a general election polling day. This results in a period following an election when there are no MPs, until newly elected MPs take office.

Sections 6 and 8 of the Constitution Act enable Ministers and Parliamentary Under-Secretaries to continue to hold office for 28 days, despite not being MPs. This ensures the continuity of government and upholds the constitutional principle that the Governor-General must always have advisers. The bill would amend section 6 of the Act to remove the 28-day rule. It would create a new rule under which Ministers would remain in office until the day after the day on which election processes are completed by the Electoral Commission declaring the elected list candidates. The bill would also amend section 8 to replicate this rule for Parliamentary Under-Secretaries. These amendments seek to address situations where the Electoral Act provides for the date of the return of the writ to be extended, for example, an extreme weather event or a judicial recount of an electorate vote.

As part of our consideration of the bill, we have examined its consistency with principles of legislative quality. We have no issues regarding the legislation’s design to bring to the attention of the House.

This commentary covers the one amendment that we recommend to the bill as introduced.

Section 8 of the Act specifies that Parliamentary Under-Secretaries must be MPs except for the 28 days after an election. Clause 5 would amend section 8 to align with section 6, as amended by clause 4, so that a Parliamentary Under-Secretary may continue to hold office for an extended period after ceasing to be an MP. The extended period would run until the close of the day after the day on which the Electoral Commission declared the elected list candidates.

We understand that this rule is only intended to apply following a general election. However, we note that, under clause 5 as introduced, the circumstances in which a Parliamentary Under-Secretary would cease to be an MP are not specific. Consequently, the 28-day rule could still apply to a Parliamentary Under-Secretary who ceased to be an MP for another reason, such as resigning during a parliamentary term. We therefore recommend amending section 8(3) to clarify that it would only apply if a Parliamentary Under-Secretary ceased to be an MP because of a general election and the operation of section 54 of the Electoral Act.