Meagher, Denis --- "Section 48 of the Constitution of Australia" [1999] MurdochUeJlLaw 19; (1999) 6(2) Murdoch University Electronic Journal of Law

Section 48 of the Constitution of Australia

Author:	Denis Meagher Barrister and Solicitor, Western Australia
Issue:	Volume 6, Number 2 (June 1999)

Contents

• Introduction
• Analysis
• Conclusion
• Annexure
• Notes

Introduction

1. The following appeared in the Sydney Morning Herald of the 1st March 1948:

   Speaking at Parramatta last night, the Leader of the Opposition, Mr. Menzies, attacked the salary increases granted to members of Parliament. "I am told that caucus is on the point of announcing to an astonished world that there is a pension scheme for us - £500 a year for life after six year's service", said Mr. Menzies.

   Mr. Menzies continued, "Isn't it amazing - one term of six years and then £500 a year for life; and you should see some of the people we get in the Senate..."[1]

2. Sir Robert had most of this right. A "pension scheme" was indeed then being planned for the members of the Federal Parliament; albeit, eventually, this commenced at £416 a year for life, not £500 a year. And eligibility was made to be eight year's service and subsequent loss of their seat; not just by completing a six-year term in the Senate.[2]

3. The Bill which became the Parliamentary Retiring Allowances Act 1948[3] was the main piece of business of the House of Representatives - in its Second Reading Speech - on the 9th December 1948. It was opposed by both the Liberal Party and the Country Party. The member for Flinders, Mr.R.S. Ryan, was generally representative of the view of this minority:

   I regard the benefits proposed to be granted under this bill as unduly generous. During the time that I have been a member of this Parliament many additional privileges have been granted to honourable members and senators. We have been provided with secretarial assistance, which I admit to be necessary; we have been granted living away from home allowances and we have received a 50 per cent increase in our parliamentary allowance.[4]

4. Introducing the bill, the Prime Minister, Mr. Chifley, said that between 1939 and 1947 the parliaments of the United Kingdom, Western Australia, New South Wales, Victoria and South Australia had progressively passed legislation granting pensions to their elected members.[5]

5. The competence of those other Parliaments to make such legislation is not open to question; the United Kingdom being unburdened with a formal Constitution and the States having Constitutions alterable by their Parliament per ipsam legem.[6]

6. However, during the day's debate, the question went unasked as to whether the proposed legislation was within the competence of the Commonwealth Parliament.

7. The legislative power of the Commonwealth is limited, in that:

   ... any law enacted by the Commonwealth Parliament must be capable of being characterised as a law made in the exercise of one or more of the specified heads of power.[7]

8. These "specified heads of power" are, generally speaking, those to be found in ss. 51 and 52 of the Constitution.

9. And, although the nature of the legislative power of the Commonwealth authority is plenary,

   ... it must be possible to predicate, of every law passed by the Parliament, that it is a law with respect to one or other of the specific subject-matters mentioned in ss 51 and 52 of the Constitution."[8]

10. This paper examines whether the Parliamentary Retiring Allowances Act 1948 - as it was then called - was such a law. It also examines whether certain other payments and benefits receivable by members of the Commonwealth Parliament are properly so receivable.

    Analysis

11. Neither section 51 nor section 52 of the Constitution makes specific mention of an empowering of Parliament to make legislation for the payment of moneys to its members.[9]

12. Section 48 of the Constitution provides for a payment of £400 a year to be made to members of the Parliament, in these terms:

    Allowance to members[10]

    48. Until the Parliament otherwise provides, each senator and each member of the House of Representatives shall receive an allowance of four hundred pounds a year, to be reckoned from the day on which he takes his seat.

13. The wording of this Section arose out of the debates of the various Conventions in relation to payment to be made to members of the new Federal Parliament. The amount of the payment was a subject that sometimes gave rise to heated discussion. And, during the debate, just as much attention was directed to what that payment was to be seen to represent. (Indeed, there appears to be have been an inseparable connection in the minds of most of the delegates between whatever was to be the amount of the payment and what that amount then represented - no matter what their views on what should be made the actual amount thereof.)

14. The forerunner of Section 48 was first debated at the National Australasian Convention in Sydney in April 1891.[11]

    Clause 45. Each member of the senate and house of representatives shall receive an annual allowance for his services, the amount of which shall be fixed by parliament from time to time. Until other provision is made in that behalf by the parliament the amount of each annual allowance shall be five hundred pounds.

15. During the various Conventions over the ensuing 7 years, the provision was gradually changed, though not greatly.[12]

16. As to the other branches of Government then being created, the Executive is, by Section 3, to be provided with a salary. This is to be paid by the Queen to the Governor-General - after she has first received it from the Commonwealth. "There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor-General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds."

17. As to the other members of the Executive, it is also, by Section 66, a salary which is to be paid by the Queen to her Ministers of State (appointed by the Governor-General); again, after she has received it from the Commonwealth.

    There shall be payable to the Queen out of the Consolidated Revenue fund of the Commonwealth, for the salaries of the Ministers of State, an annual sum which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year.

18. The Constitution made provision, in section 66, for no more than seven Ministers of State ("Until the Parliament otherwise provides..." ). As such, the salaries of the first Ministers of State would average some £1,700.[13]

19. Judges of the High Court and members of the Inter-State Commission[14] were to "receive such remuneration as the Parliament may fix": Sections 72(iii) and 103(iii) respectively.

20. Should any need arise to assess accurately the meaning of these and any other such words used in the Constitution,

    ... the ordinary principles of interpretation require that constitutional provisions conferring authority upon parliament to make laws shall bear the meaning which they had at the time of Federation....[15]

21. The Governor-General and the Ministers of State were to receive a periodic, fixed payment directly from the Queen. This payment was, then, properly described as being a "salary"; being defined as a fixed payment made as compensation for regular work, or, remuneration for services rendered.[16]

22. The members of the Inter-State Commission and the appointees to the High Court were to receive, while in office, that which was then properly described as being remuneration, namely, that which is a reward, recompense, repayment or pay.[17]

23. The three words, "salary", "remuneration" and "allowance", are the only words used to delineate the form of payment to be made under the provisions of the Constitution to the members of the three branches of government. There is therefore, in the Constitution, not only a precise separation of these branches (on paper at least), but also a precise separation of the kinds of payments to each branch: to the Executive, a salary; to the Judiciary, remuneration; and to the members of Parliament, an allowance.

24. In present-day usage, "allowance" may be a word of less currency in relation to financial matters than it appears to have been towards the end of the last century.[18] It had, at the time, a somewhat formal sense; and meant "the action of placing to one's credit, admitting in an account, or allotting on account of expenses".[19]

25. The framers of the Constitution were well aware of what the word meant in practical application. Of the Delegates who attended the five Conventions, only one was not then, or had not previously been, a member of one of the Colonial parliaments (Mr. J. Walker, a retired bank manager from N.S.W.). It was an allowance which the various Colonies paid (or, which Western Australia did not pay) to the members of those parliaments.[20] The Debates of the Conventions confirm that they considered it to be an entity quite distinct from either a salary or remuneration.

26. In regard to the record of these Conventions:

    Reference may be made to the Convention Debates in order to identify the contemporary meaning of the language used...and the subject to which that language was directed.: Svikart v Stewart [1995] ALJR 35, per Toohey J at 43.

27. At the Convention which commenced in Sydney in March 1891, two delegates addressed that which was then numbered clause 45 in the Commonwealth Bill of 1891 (earlier set out herein): they were H.J. Wrixon QC, MP from Victoria and W.E. Marmion MP from Western Australia.[21]

    Mr. WRIXON: ... I think that to describe the payment mentioned in the clause as an allowance for services is a misdescription. It is really an allowance for the reimbursement of expenses..... I would prefer to see the wording which is used in some of the statutes of those colonies which have adopted payments to members, namely, that it should be put as the reimbursement of expenses, because otherwise you get into the public mind the idea that members of parliament are actually paid a salary for their work, which they are not.
    Mr. MARMION: I do not see why these words "for their services" should be included at all. Why not say that each member of the senate, and of the house of representatives, shall receive an annual allowance?"[22]

28. H.J. Wrixon moved that the words "for his services" be omitted. The day's business was adjourned and it is only noted that, on the next day, in committee, the proposed amendment was "negatived". (However, after the final Convention of March 1898, the words "for his services" were indeed "omitted"; seemingly by the draftsmen simply doing so).[23]

29. Some of the historical flavour is preserved in the words of Alexander Forrest, the fellow-explorer and brother of Sir John and the only other delegate to then speak to the clause:

    I am sure that the colony which I have the honour to represent will object most strongly to pay its members anything like £500 a year. At the present time we have no payment of members, nor are we likely to have it in Western Australia, and if we allow this amount to stand in the clause we shall find that the local parliament will move in that direction. The colony is not in a position to pay any large sum as an allowance to its members, and I protest most strongly against this Convention in any way pledging the local parliaments to the payment of £500 per annum to members.[24]

30. The version of Clause 45 which was reviewed at the next Convention, some 6 years later in Adelaide in 1897, "... was to the same effect, except that the sum was £400."[25]

    Until the Parliament otherwise provides, each member, whether of the States Assembly or of the House of Representatives shall receive an allowance for his services of 400 Pounds a year, to be reckoned from the day on which he takes his seat.

31. During the early part of the ensuing Debate, we learn what is paid to members by way of allowance in some other Parliaments.

    Mr. GORDON: I move:
    To strike out the word "four", in the third line, with the view of inserting "five".
    The ground for the motion is that £400 a year is insufficient. While some local Parliaments are paying their resident members £300 a year, £400 is not enough for a member who has to leave his colony and practically abandon his business or his profession. He would have to rely either upon his private means or his parliamentary salary, which, in this case, would be inadequate.
    Sir WILLIAM ZEAL: £400 is quite enough!
    Sir EDWARD BRADDON: £100 too much.
    Sir WILLIAM ZEAL: I consider that £400 is ample payment for the services of members. In addition to that they possess the privilege of a free railway pass. The amount proposed to be paid - £400 - is twice as much as the Dominion Parliament of Canada pays its members."[26]

32. A delegate elected from Victoria, William Trenwith, was the only one elected to attend the Conferences from what today would be called the Australian Labor Party. He spoke favouring the proposed increase to £500. A debate between he and Sir William Zeal quickly ensued,[27] after which Mr. Trenwith then stressed, to those who were to cast this final vote, what it was that an allowance of only £400 would represent: the words coming from one who implied he would, if elected, have to wholly rely upon it.[28]

    MR. TRENWITH: My hon. friend, Sir William Zeal, interjected that we have free railway passes. I should remark that anyone who knows anything about travel must recognise that it carries with it a large amount of expense. Those who are here, away from their homes, know that if they were getting £400 a year for this work, they would be losing money, and they would not even be reimbursed for the expenditure incurred. Those who urge that the amount should be left as proposed in the Bill, are not in favour of payment to members, but are simply favourable to reimbursing members for the disbursements they make in connection with the performance of their duties. (Emphasis added.)[29]

33. The amount was, however, by the vote of a large majority, directed to remain at £400, "as proposed in the Bill".

34. From a reading of the whole of the debate and from an observation of the words used by the delegates - and the vigour of the exchanges between them - it appears they believed the amount was to be a fixture for as far into the future as any of them could see, and that even the amount per se signified what it was to represent.

35. By this vote, the last on the matter, they apparently concurred with the view of William Trenwith (who would have had it be otherwise) that this allowance was to be simply that which: "... would reimburse members for the disbursements they make..."

36. Or, perhaps, as H.J. Wrixon QC had put it six years earlier, of it being an allowance to "reimburse their expenses". Not once was it proposed that the description of the payment should be something other than that of an allowance.

37. Further insight into the particular nature of this payment comes forth from the final words of the Section. This specifies that the allowance to be paid to a member was: ".... to be reckoned from the day on which he takes his seat."

38. It was therefore only from the time when a member first attended Parliament after being elected that his expenses or his loss of income would be seen to have commenced - and it was from then that he was to receive reimbursement for this expenditure or loss.[30]

39. An opinion about the proper construction of Section 48 is given in The Annotated Constitution of the Australian Commonwealth, J. Quick and R.R. Garran, (1901):

    Without an amendment of the Constitution, the Federal Parliament may at any time either abolish payment of members or reduce or increase the allowance which each member is to receive, or alter the method of apportioning the allowance, providing that each member shall be paid according to the distance which he travels or the attendance which he gives at the sittings of his House.[31]

40. This contemporary view contemplates the permissible variations of the amount of the allowance (then in place by virtue of Section 48 itself) by way of legislation. Any other alteration of the scope of the payment being permissible only by an amendment of the Section itself through a referendum pursuant to Section 128 of the Constitution.

41. If any further indication should be needed as to the nature of the payment prescribed by Section 48, it may be gauged by their suggestion of a permissible gradation in the allowance according to the distance of travel, or for actual time spent in Parliament: in that both increases might then provide a more proper recompense for loss or expense which a particular member incurs in the time spent in performance of their duties.

42. However, in 1907, section 3 of the Parliamentary Allowances Act not only enacted an increase of the amount of the allowance by providing that: "Each senator and member of the House of Representatives shall receive an allowance of Six hundred pounds a year."; but also contained the following provision:

    Provided that in the case of a senator or member of the House of Representatives who holds any of the following offices, namely, Minister of State[32], President of the Senate, Speaker of the House of Representatives, Chairman of Committees of the Senate, or Chairman of Committees of the House of Representatives, the allowance shall be Eight hundred pounds a year in addition to the emoluments of his office. (emphasis added)[33]

43. This additional payment, by way of the proviso, is seemingly attached to the responsibility - or perhaps simply to the position per se - of the office held by each of these particular members.[34] Accordingly, the payment is directed to their appointment to the office so held; and is a salary, properly so called, not an "allowance". It is thereby somewhat similar to the salary paid to the Ministers of State for services to the Queen pursuant to section 65 of the Constitution; except that any services the office-holders may perform are apparently to be rendered not to the Sovereign (as in the case of the Ministers) but, if to any thing, to the very Parliament itself.

44. This new provision was repeated in the Parliamentary Allowances Act 1920 when making increases in the allowances; and with section 7 thereof providing for the Leader of the Opposition, and also for the Leader of the Opposition in the Senate:

    In addition to any other allowance payable under this Act, there shall be payable to the Leader of the Opposition in the Senate, an allowance at the rate of Two hundred pounds a year, and as to the Leader of the Opposition in the House of Representatives, an allowance at the rate of Four hundred pounds a year.[35]

45. It has already been seen that Section 48 itself initially provided for the amount of the allowance payable to members - and also the date from when it could be paid - but prefaced these provisions with the words "Until the Parliament otherwise provides...".

46. Section 51 (xxxvi) of the Constitution provides that:

    The Parliament shall, subject to this Constitution, have power to make laws for peace, order and good government of the Commonwealth with respect to: -
    ...
    (xxxvi) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides:

47. Therefore, all legislation relating to any allowance to be paid to members of the Federal Parliament may be made, if properly made, pursuant to the power given by section 51 (xxxvi).[36]

    In all such cases the Constitution makes directly an interim provision for the subject matter and s 51 (xxxvi) operates to confer power on the parliament to make thereafter such provisions with respect thereto as from time to time may appear appropriate.: Victoria v The Commonwealth [1957] HCA 54; (1956) 99 CLR 575 at 604, Dixon C.J. (emphasis added)

48. A dissection of section 48 made in order to demarcate the matters in respect of which it makes provision shows that it contains the following discrete areas:

    (i) a direction that each member of the Federal Parliament shall receive an allowance;

    (ii) a specification of the amount of that allowance; and,

    (iii) a nomination of the time from when the allowance is to be paid.

49. It is these three "matters" - and only these - to which the language of the section is directed.

    .... s. 51 (xxxvi.) confers upon the Parliament legislative power "with respect to matters in respect of which this Constitution makes provision until the Parliament otherwise provides". On its face, paragraph (xxxvi.) presupposes that the Parliament is authorised to provide otherwise as to "matters" with respect to which the Constitution immediately provides: they will be matters defined, like those enumerated in s. 51, in such a way as to be subjects "with respect to" which laws may be made. (Ibid.)

50. As to that itemised (i) above - and although it will never take place - it is intra vires of the Federal Parliament to pass a bill that members of the Federal Parliament not receive an allowance.

51. One other matter is provided for in that itemised (i) above. Those who are to receive the allowance are persons who are senators or members of the House of Representatives.

52. Any legislation which purports to be authorised by Section 48 and which makes provision for the payment of moneys to a person who is not a senator or a member of the House of Representatives at the time for which the payment is to be made is not legislation on a "..matter in which this Constitution makes provision".

53. As to (ii) above[37] - the amount of the allowance - it is inherent in the notion of such a payment that it is limited to the ambit of expenses and losses pertinent to the performance of particular duties.[38]

54. As to the additional payments provided for in section 3 of the Parliamentary Allowances Act 1907 (and in section 7 of the same Act of 1920) to be made, among others, to the President of the Senate and the Speaker, these are nominated in the Act as being an "allowance". The description hardly fits comfortably. It may, indeed, be said it is not a correct denomination; being, in reality, payment by way of a salary - a fixed payment in return for specified services.[39]

55. The description of these payments in the Parliamentary Allowances Act 1907-20 as being an "allowance" was most probably used in order to be seen to comply with the limitations which Parliamentary draftsmen recognised as being imposed by Section 48. If this assumption is correct, the practice continued up until the early 1970's. Sometimes, in the initial part of new legislation which is drafted to provide for an additional variety of payment to members, draftsmen seem to struggle with the dilemma by attaching the tag "allowance" to the new form of payment; and then, later, simply end up calling the payment what in fact it really is. The Act to which reference was earlier made, the Parliamentary Retiring Allowances Act 1948 gives an example. It is described in the preamble as: "An Act to make provision for Contributory Retiring Allowances for Persons who have served as Members of Parliament."

56. Thus, the draftsman, by use of the empowering word "Allowances", would place the legislation under the aegis of section 48.

57. It is, however, a fundamental principle that:

    ... the Parliament cannot turn a law which is not upon a subject matter of legislative power into a law which is upon such a subject matter by the simple expedient of creating a statutory fiction.: Herald and Weekly Times Ltd. v. The Commonwealth [1966] HCA 78; (1966) 115 CLR 418 at p.438.

58. The draftsman then headed Part II: "The Parliamentary Retiring Allowance Trust". (In which is established a Trust so named: the Treasurer, two senators and two members of the House of Representatives being trustees).[40] Part III he headed: "Parliamentary Retiring Allowance Fund" (In which is brought into being a Fund so named, to be administered by the Parliamentary Retiring Allowance Trust).[41]

59. Part V is the core of the legislation. It contains, however, no mention of a "Parliamentary Retiring Allowance" - or even a "Retiring Allowance". This Part is simply headed "Pensions and other Benefits".

60. Sections 18 and 19 are the primary sections of this Part - and it is probably necessary to set out their actual, relevant words:

    18. (2) In the case of a member who does not retire voluntarily, the benefit shall be-
    (a) where his period of service is not less than eight years -
    (i) if he has attained the age of forty-five years before he ceases to be entitled to a parliamentary allowance - a pension at the rate of Eight pounds per week during his lifetime;...

    19. (1) Where a person dies -
    (a) where he is entitled to a parliamentary allowance; or
    (b) while he is entitled to a pension...
    benefits from the Fund shall be payable in accordance with this section.
    (2) If the deceased person was a male... there shall be payable to the widow...
    (a) a pension at the rate of Five pounds per week during her life-time but ceasing upon her re-marriage; ..."[42]

61. By 25 years further on - in 1973 - the word "Pensions" had been removed from the heading of Part V. The word "pension" had also been totally removed from the body of the Act. It had been replaced by the words "retiring allowance". (The age-limitation of forty-five has also long been removed; and, now, on the death of a female member, any husband who survives her is also now to be paid five-sixths of the "retiring allowance".)

62. As to the present-day amount thereof, section 18(6) of the current Act provides that:

    The rate of the retiring allowance... is such percentage of the rate of the parliamentary allowance for the time being... as is applicable in accordance with the following scale:-

    Number of complete years in period of service of person	Percentage of parliamentary allowance to be paid as retiring allowance[43]
    8 9 10 11 12 13 14 15 16 17 18 19 20 or more	50 52 54 56 58 60 62 64 66 68 70 72 75

63. In 1978, the title of the Act was changed to the Parliamentary Contribution Superannuation Act. (No reason was given for the name-change when the legislation was being introduced into the House of Representatives.)[44] [45]

64. The Parliamentary Allowances Act 1902 mentioned earlier in this paper had its continuance in the Parliamentary Allowances Act 1952-1973. The Act then went out of business in 1973. Payments to members are now set by the Remuneration and Allowance Act 1990 - in a somewhat confusing conjunction with the operations of a body established in 1973, the Remuneration Tribunal (through the Remuneration Tribunal Act of that year).

65. However, before looking at the Remuneration and Allowance Act 1990 and the workings of the Remuneration Tribunal, a short return will be made to the provisions of the Parliamentary Allowances Act 1952-1973 for the purpose of looking at what is known as the "electorate allowance".

66. In 1952, the Act initiated the "electorate allowance", as it later became known (doing so in conjunction with a raising of the allowance proper).

    4. (1) Each senator shall receive an allowance at the rate of One thousand seven hundred and fifty pounds a year.
    (2) Each senator shall receive, in addition to the allowance referred to in the last preceding sub-section, an allowance, in respect of the expenses of discharging his duties, at the rate of Five hundred and fifty pounds a year."[46]

67. The approximate ratio of 3:1 between the allowance (£1750) and the "electorate allowance" (£550) has been maintained to this day: the present allowance being $81,856 and the electorate allowance being $26,467 for all senators and members (increasing up to $38,380 for members who have the largest electorates).

68. A version of this additional "electorate allowance" may indeed correctly fit within a payment envisaged by section 48, if structured in a different way than this one is framed; ie., as Messrs. Quick and Garran had foreseen: by an expansion of the allowance in order to provide for the cost of additional travel and, possibly, the time so involved.

69. However, that which was provided for in 1952 is simply stated to be "in respect of the expenses of discharging his duties" and, unlike succeeding provisions on this aspect, was a single global figure for all members irrespective of the size of their electorate; and consequently was largely independent of the proper considerations mentioned earlier as to the additional cost of travel, and the like.

70. Indeed, the wording: "... an allowance, in respect of the expenses of discharging his duties..." is almost identical to the purpose of that of the allowance proper.

71. But, in any event, matters have changed considerably since this commenced in 1952 in that payments are now made (as set out in the Annexure) to a member (or on behalf of a member) for all possible aspects "in respect of discharging his duties". These also include far larger travel and vehicle-transport allowances to members from the bigger electorates.

72. All of such payments have removed the need for an "electorate allowance". The base "electorate allowance" is something which should simply form a part of the allowance proper pursuant to section 48.

73. The process of making a payment to members by way of that which is tagged an "electorate allowance", in its present form, is therefore bringing into existence an entity which is in excess of the proper allowance under section 48. (However, an additional allowance paid to members who incur increased expenses due to the size or location of their electorates is, in theory, still a proper extra allowance.)

74. Accordingly, and as earlier suggested, the base "electorate allowance" should form part of the allowance proper. Or, it should be abolished entirely if the system of having the Remuneration Tribunal authorising payments for members (or to members) for the individual expenses they incur is to continue.[47]

75. From this point on - until two paragraphs before the Annexure - this paper traces the course of the subsequent legislation in this area. It can, in places, be fairly heavy going. It may be omitted without loss by any general readers.

76. When the Remuneration Tribunal Act was enacted in 1973, it was seemingly meant to establish a new method of setting, from time to time, all payments to be made to parliamentarians; by a method different from them having to discuss the amount in the Parliament and then voting on it themselves - as had been the way with the Parliamentary Allowances Act up to 1973.

77. The Act established a Tribunal to "consist of three members appointed by the Governor-General on a part-time basis."[48] In the Act, the tenure of office of members of the Tribunal is only said to be "... for a period not exceeding 5 years..." Nor is specific provision made, within the Act itself, for payment of members of the Tribunal.[49]

78. The functions of the Tribunal which are presently of interest are expressed as follows:

    7. (1) The Tribunal shall ... inquire into, and determine, the allowances, (including allowances in accordance with section 48 of the Constitution) to be paid out of the public moneys of the Commonwealth to members of the Parliament by reason of their membership of the Parliament or by reason of their holding particular offices, or performing particular functions, in, or in relation to, the Parliament or either House of the Parliament."
    ....
    (9) ... remuneration to which a determination applies shall, notwithstanding the provisions of any law of Australia, be paid in accordance with the determination out of the Consolidated Revenue Fund, which is appropriated accordingly. (emphasis added)[50]

79. The best that could be said about sub-section (1) of this Section is that it is a law which was not happily framed: in that by indicating that the allowances which the Tribunal shall determine merely include "... allowances in accordance with section 48 of the Constitution...", it strongly implies that there are allowances which shall be determined - and thereby brought into being - which are not "in accordance with section 48 of the Constitution".

80. A view which is less benign is that it is a law which was outside the power of the Commonwealth to make: in that the authority for its enactment might only be found in Section 51 (xxxvi) and in Section 48 of Constitution and, by directing the Tribunal to determine that payments which would not truly qualify as an "allowance" be made "out of the public moneys of the Commonwealth", it is a provision which is beyond the scope of those sections of the Constitution.[51]

81. In any event, in its present-day operation, the Remuneration Tribunal formulates the amount of one part of the money to go to members, the "electorate allowance" (together with certain "benefits" to which reference will later be made). Yet another Act of the Commonwealth Parliament, the Remuneration and Allowances Act (brought into being in 1990 because the Government of the day disagreed with certain Determinations of the Tribunal) now provides the other part, the allowance proper.

82. The Remuneration and Allowances Act 1990 provided, inter alios:

    Remuneration and allowances of Senators and Members of the House of Representatives

    6. The holders of the offices specified in Schedule 3 are entitled to remuneration and allowances in accordance with the provisions of that Schedule.

83. The "holders of the offices specified in Schedule 3" are the members of the Senate and the House of Representatives.

84. The draftsman of the Remuneration and Allowances Act 1990 did not stay with the practice of the previous 80 odd years of keeping words such as "remuneration" out of any Act directing payment of moneys to members. Indeed, even the word "salary" was allowed to appear in Schedule 3.

    SCHEDULE 3

    SENATORS AND MEMBERS OF THE HOUSE OF REPRESENTATIVES

    Salaries

    1. (1) For the purposes of section 48 of the Constitution, the annual allowance to Senators and Members of the House of Representatives (in this Schedule called "salary") is as set out in this clause.
    ....
    (3) .... the annual rate of salary payable to Senators and Members of the House of Representatives (in this clause called the "Members of Parliament annual salary") is $58,300 with effect from 1 July 1990.
    ....
    (7) From 1 July 1991, the Members of Parliament annual salary is equal to the [annual salary payable to the holders of offices in the Australian Public Service having a classification of Band 1]. (emphasis added)

    Clause 2 of Schedule 3 provided for a base "electorate allowance" of $22,685.

    Clause 3, the final clause, states:

    A Senator or Member of the House of Representatives is also entitled to the allowances and entitlements provided for by Determination No. 14 of 1990 of the Remuneration Tribunal ... or by any subsequent Determination of the Remuneration Tribunal providing for equivalent allowances or entitlements... (Emphasis added: these entitlements will be referred to later herein.)

85. In summary, in 1973 the Tribunal had been given the power to determine all allowances purportedly payable to Federal parliamentarians - and, furthermore, by section 7 of its Act, specifically directed to do so. Nonetheless, the new Act, the Remuneration and Allowances Act 1990, provided for the 1990-equivalent of the £400 specified originally in the Constitution: doing so through the connection with Senior Executive Service Band 1 salary.[52]

86. At first, the Remuneration and Allowances Act 1990 also provided for the "electorate allowance". However, this is presently set by the Remuneration Tribunal in its Determination No. 26 of 1998 of December last year. It now has a base figure of $26,467.

87. The concluding piece in the present arrangement of payments to members is provided by the operation of yet another of these Acts - the final one - and one which was also brought into being in 1990: the Parliamentary Entitlements Act.

88. It is a short Act; with only one objective; an objective which is plainly stated in the preamble: An Act relating to the provision of benefits to Members of each House of the Parliament."

89. The provisions of the Act which are of present relevance are sections 4 and 5.

    4. (1) Members are entitled to benefits as set out in Schedule 1.

    5. (1) Members... are entitled to such additional benefits as are:
    (a) determined by the Remuneration Tribunal under section 7 of the Remuneration Tribunal Act 1973;
    ....
    (2) Subsection (1) does not extend to a benefit in the nature of remuneration."[53]

90. The legislative scheme of sections 4 and 5 of the Act is that there are, firstly, benefits as set out in the Act itself (sec.4) and, secondly, there are the "additional benefits" determined by the Remuneration Tribunal (sec.5).

91. As to the first (the benefits as set out in Schedule 1 of the Parliamentary Entitlements Act 1990), these then ranged between office-accommodation (together with equipment and facilities necessary to operation the office and postage, government publications etc.) and travel expenses within the country on "first-class scheduled commercial services" and "the use of official cars". It also included, at that time, on a once-a-year basis, the cost of overseas travel "as a member of an [approved] Parliamentary Delegation" up to the cost of a "round-the-world ticket".[54]

92. As to the second (the additional benefits to be determined by the Remuneration Tribunal pursuant to Section 5(1) of the Act), the present benefits are included as an Annexure to this paper, by way of a summary of the Tribunal's Determination No.26 of 1998.[55]

    Conclusion

93. It is the author's opinion that the provisions of the legislation which have been considered here - and which may direct or allow for the payment of moneys for a purpose otherwise than for the allowance proper pursuant to Section 48 - are invalid.[56]

94. These provisions are those which grant the entitlements provided for in the Parliamentary Contribution Superannuation Act; the additional allowances to office-holders in the Parliament; the "electorate allowance" (which should now either be included as part of the member's allowance or the system of payments for expenses be discontinued); payments to or on behalf of anyone other than a senator or member of the House of Representative; and payments and benefits to anyone after ceasing to be a senator or member of the House of Representatives.

ANNEXURE

Remuneration Tribunal Determination No. 26 of 1998

MEMBERS OF PARLIAMENT - ENTITLEMENTS

ELECTORATE ALLOWANCE

1.1 The amount paid as the electorate allowance ranges from $26,467 up to a maximum of $38,380 for a member of the House of Representatives with an electorate of 5,000 square kilometres or more.

TRAVEL ENTITLEMENTS

Senators and Members

2.1 Members are entitled to travel in Australia at government expense on parliamentary, electorate, official and party business.[57]

2.3 Charter transport may be used in doing so; however, if there is a more "reasonable and usual mode for the route travelled" but the member chooses to use charter transport, the member is to pay the difference.

2.5 Travel by air and rail may be either first class or business class, "whichever is appropriate for the mode of transport used".

Spouse or nominee of a Senator or Member

2.9 The husband or wife or nominee;[58] of a member is entitled to travel by return at government expense:

(a) nine times each year to Canberra;[59]

(b) elsewhere interstate, three times a year; and

(c) to any official government, parliamentary or vice-regal function to the spouse or nominee has been invited.[60]

(Parts of this clause do not apply to members from the ACT; for which, see 2.11 below.)

2.10 When the holder of a Life Gold Pass travels to Canberra, their husband or wife, as the case may be, may travel with them. This travel is additional to any taken under the preceding clause 2.9 and, seemingly, in addition to that covered later in Clause 7.4. (Obtaining a Life Gold Pass is dealt with in Clause 7.2.)

2.11 The husband or wife or nominee of a member from the ACT, is entitled to travel by return at government expense:

(a) to Sydney or Melbourne once a year;

(b) elsewhere interstate, once a year; and

(c) to attend any official government, parliamentary or vice-regal function to which they have been invited.

2.12 The spouse or the nominee is entitled to travel at the same class of travel as a senator or member.

2.14 A spouse or nominee may convert their entitlement to travel to Canberra or interstate into intrastate travel, on a 1:1 basis.

Dependent Children

2.20 Each dependent child of a member is entitled to three return visits to Canberra a year economy class; but, if under 12 and travelling with their parent, can do so on the same class as the parent.

CAR TRANSPORT

Senators and members

3.1 A member is to be provided with car transport at government expense for travel on parliamentary and party business:

(a)between their home, their electorate office or their "place of business" and the nearest airport/railway station;

(b)within a 30km radius of Parliament House;

(c)in capital cities (other then their own); and

(d)in regional centres outside the electorate.

3.6 A member may be provided with long-term, self-drive car transport in Canberra. If so, the car may be used for private purposes, but not for "commercial purposes".

Spouse or nominee

3.12 When entitlement-travel is being undertaken by a spouse or a nominee and the member is not with them, they may have car transport to take them, at government expense, from their home to the airport; and to take them from the airport to the capital city to which they are travelling; and, if the travel is to Canberra, to take them between Parliament House and their place of accommodation.

PRIVATE VEHICLE ALLOWANCE

Private vehicle allowance for travel to and from Canberra

This clause, Clause 4, makes provision for when:

- a member uses "their private vehicle" to travel to and from Canberra on parliamentary business, or when

- a spouse, or a nominee or a dependent child chooses to use their own vehicle in travelling to and from Canberra (on their Clause 2 entitlements).

They are then entitled to payment of the Australian Public Service private vehicle allowance for the shortest route or the cost of the business class air fare, whichever is the less.

PROVISION OF VEHICLE

5.1 A member shall have, at their request, "an Australian made, private plated standard vehicle", as advised by the Minister.[61]

5.5 Alternatively, a member may have a vehicle such as a four-wheel drive. If so, either their electorate allowance or their charter-transport allowance is to be used to meet any increase in the lease cost. (As to this second allowance, see later in Clause 6.2).

5.6 Members from the six largest electorates and senators from the Northern Territory are entitled to have both the standard vehicle and a four-wheel drive vehicle; their charter allowance or their electorate allowance is to be offset to meet the lease-cost of the latter.[62]

5.8 For clause 5.1 and 5.5 vehicles, the personal-cost contribution and other guidelines of the motor vehicle scheme for the Senior Executive Service of the Public Service need be met.[63]

5.9 The running and maintenance costs of all the above vehicles are to be met by the Commonwealth.

CHARTER AIRCRAFT/DRIVE YOURSELF VEHICLES

6.2 Senators from the Northern Territory may incur costs of $51,300 in using charter transport[64] each year; those from Queensland and WA, $20,650; and those from NSW, Victoria, SA and Tasmania, $11,550.

Members of the House of Representatives with an electorate of between 10,000 and 25,000 square kilometres have a ceiling of $8,900. This proceeds by limits of $18,150, $27,950 and $32,750 for increases in areas of electorate; up to $51,300 for an electorate of 300,000 or more square kilometres.[65]

LIFE GOLD PASS

7.1 The holder of a Life Gold Pass may travel on 25 return trips within Australia each year at government expense.

7.2 A Life Gold Pass is given to those who have been:

- Prime Minister for one year;

- a Minister, President of the Senate, Speaker or Leader of the Opposition for six years; or

- a member for 20 years.

(If anyone has been Prime Minister for less than one year, or has been a Minister, the President of the Senate, the Speaker or the Leader of the Opposition for less than six years, their time is trebled in order to enable them to attain the 20-year qualifying period of a normal member.)

7.3 A Life Gold Pass holder is entitled to travel at the same class of travel as a sitting member.

7.4 When the husband or the wife of a Life Gold Pass holder travels with them, they are also entitled to travel at government expense, and on the same class of travel.

SEVERANCE TRAVEL

8.1 Members who do not qualify for a Life Gold Pass can, on retirement, travel at government expense within Australia for the period shown adjacent to their time in Parliament:

(a)service in one Parliament- ½ year

(b) two Parliaments - 1 year

(c) three Parliaments - 2 years

(d) four Parliaments - 3 years

(e) five Parliaments - 4 years

(f) six Parliaments - 5 years

8.2 Each year, 25 return trips can be made; except by those in 8.1 (a), who have a period of half a year and who can make only 12 return trips.

8.3 Travel can be at the same class of travel as sitting members.

OVERSEAS TRAVEL

9.1 A member who has been in Parliament for three years is entitled to receive the equivalent amount of a round-the-world first-class air fare.

"A further entitlement accrues to a senator or member once only in the life of each subsequent Parliament."

The travel is expressed to be for "... the purpose of undertaking studies and investigations of matters relating to their duties and responsibilities as a member of parliament..." (On return, a report on the travel is supposed to be made to the Minister.)

The money can be used for travel from time to time and for as many trips, accommodation, meals and the like as the sum itself provides. Out of the sum, a member may also pay for the travel of an accompanying husband or wife.

OFFICE FACILITIES

Telephone Service in Private Residence

10.3 All calls from two of the telephones in a member's home are to be paid by the government.

Telephone Services Charge Card

10.5 A Telephone Services Charge Card is provided to members for all telephone calls on parliamentary or electorate business.

Information Delivery Services

10.6 A member is entitled to up to $22,000 a year in mail distribution services, courier services and other delivery services.

GENERAL

11.2 "Entitlements not covered in this Determination (such as location, number, nature and extent of office accommodation, office furniture and equipment, newspapers and the like) shall be provided at the discretion of the Special Minister of State".

---

Notes

[1] Volume 196 Parliamentary Debates, p.452.
An attempt by the Labour Member for Perth, the Hon. Thomas Burke, in the House of Representatives nine days later, to have the Speaker seek particulars from Mr. Menzies of whom he might have had in mind was gently rebuffed by the Speaker on the grounds that neither the Speaker nor any other member is entitled to question another member on "statements which he makes out of the house".

[2] The amount then paid to members and senators was £1500 a year. (A contribution of £156 was taken out. It is presently 11.5% of that which is paid to members; reducing to 5.75% after 18 years in parliament). If a member chose to resign their seat, 12 years' service was necessary in order then to receive a pension: section 18 (3) of the Parliamentary Retiring Allowances Act 1948.

[3] The bill received the assent of the Governor-General on the 21st December 1948.

[4] Volume 200 Parl. Debates (Reps.) p.4280.
The Bill was opposed primarily on the aspect of its generosity, not on any principle behind it. The view expressed in 1948 by the member for Flinders as to the undue generosity of the proposed benefits is today echoed by a former Minister for Industrial Relations, the Member for Kingsford-Smith, who, in The Australian of the 22nd March 1999, was reported to have said that, when measured against the community standard available to workers, "Parliamentary superannuation is outrageously generous...".

[5] The Leader of the Opposition travelled overseas from June 1948 to January 1949 and it was the Leader of the Country Party, Arthur Fadden, an accountant and eventual long-term Treasurer in the succeeding Menzies Government, who lead the debate in opposition to the measure. He informed the House that he had examined not only the schemes mentioned by the Prime Minister but also ones in Queensland and New Zealand and "None is as beneficial as the scheme now before us..."

[6] "The Limitations, if Any, on the Powers of Parliament to Delegate the Power to Legislate"; The Hon. Mr. Justice David Malcolm (1992) ALJR 247 at p.252. Also, Boodram and Others v Baptiste and Others, (PC) The Times, June 1, 1999.

[7] Malcolm C.J., op cit, 252.

[8] Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; (1931) 46 CLR 73, per Evatt J. at 120. An example of this is to be found in NSW v The Commonwealth [1990] ALJR 157 where, by a 6-1 majority, the High Court determined that sections of the Commonwealth Corporations Act 1989 that purported to furnish it with legislative power for the incorporation of trading and financial corporations were ultra vires and therefore invalid because, although section 51 (xx) of the Constitution confers power to legislate as to: "Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth", it was not intended to confer power on the Commonwealth to enable a company to be actually brought into life through a law of the Commonwealth. The Court determined that the legislative power of the Commonwealth is limited to corporations already "formed". Incorporation had to be left to the States.

[9] The only mention therein of payment to a person is in s.51 (xxiii), which equips the Parliament with power to make laws with respect to: "Invalid and old-age pensions:"

However, the placitum of s.51 to which particular reference will later be made is (xxxvi):

"The Parliament shall, subject to this Constitution, have power to make laws for peace, order and good government of the Commonwealth with respect to: - ...
(xxxvi) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides:"

[10] The Acts Interpretation Act 1901 of the Commonwealth says as to "marginal notes" that they do not form part of an Act: Section 13(3). Similar provisions apply in the States. This is apparently based on a policy arising from the fact that because Bills debated in the Parliament in days-gone-by contained no such notes (being put there afterwards by the printer), their wording was therefore not a possible subject for debate and should not be part of the Act. However, the Acts Interpretation Act 1901 cannot affect the Constitution. Moreover, the marginal notes of what became the Constitution were inserted in the first draft finalised in 1891 and remained as part of the document debated during the following four Conventions; and also as part of the final draft which went to the people. And, a move to amend a marginal note in the Constitution (however absurd the idea) would need to be through a referendum. As to the area generally: Wacando v Commonwealth of Australia [1981] HCA 60; [1981] 56 ALJR 16, that marginal notes cannot cut down the plain meaning of a statute (at 21 per Gibbs CJ); and also Statutory Interpretation in Australia (4th ed.) DC Pearce and RS Geddes at paragraph 4.40, where it is concluded that marginal-notes should not, however, be entirely rejected as a guide to the scope of a particular section.

In Section 48, the marginal-note refers to the same subject matter as the Section itself. If this is of any significance, it is that the marginal-note confirms the subject matter of the Section.

In the recent case of Sue v Hill [1999] HCA 30, the High Court went beyond that which might otherwise have been predicted about a marginal-note's absorption into a Section of the Constitution. Section 44 was the legislation at the heart of the matter.

"Any person who .. is a subject or a citizen ... of a foreign power ... shall be incapable of being chosen .. as a senator.." (emphasis added)

The one-word marginal note to the Section is: Disqualification. During the course of the Justices' lengthy reasons for decision, the phrase "incapable of being chosen" is raised almost as if en passant - and, even then, but some 8 times (apart from repeating words contained in the actual Petition or in giving formal findings, and the like). But, on a total of some 30 occasions, members of the Court posed the problem as being in relation to "constitutional disqualification", or to a person being "constitutionally disqualified", or to the "disqualification contained in Section 44". The word "disqualification" is, however, not contained in Section 44.

[11] "It is permissible to have regard to the history of constitutional provisions in order to establish their object and the draft bills considered by Constitutional Conventions have long been considered a legitimate aid to interpretation." Svikart v Stewart (1995) ALJR 35 at 37 per Mason CJ, Deane, Dawson and McHugh JJ.

[12] Firstly the word-order was changed.
There was then a reduction of £100 in the amount of the allowance and the insertion of the words directing that the allowance be "reckoned from the day on which he takes his seat".
Lastly, by a hand unknown, the words "for his services" were simply deleted.

[13] If so, at least two of the early Minsters of State considered this less than adequate. Isaac Isaacs, who, as one of the nine Ministers, as Attorney-General, in the second Alfred Deakin Ministry, continued to carry on a large private practice (until going onto the High Court in July 1906). The sole criticism directed at him for continuing to practice, from a few members of the Parliament, was due to one of his clients being the State of South Australia (holding a retainer for it in relation to use of the waters of the Murray River for irrigation, navigation etc.). He was, thereby, said to be in conflict with his duties as Attorney-General for the whole of the country. However, as Deakin noted in his support of him in the House of Representatives, Isaacs' predecessor as Attorney-General in the Reid administration, Josiah Symon, had likewise been retained by South Australia - and no objection had then been taken. Isaac Isaacs, Zelman Cowen (OUP, 1967) 98-99.

[14] "... with powers ... for the execution and maintenance... of the provisions of this Constitution relating to trade and commerce, and of all the laws made thereunder.": section 101. Legislation has twice been enacted to bring it into being: in 1912 and 1975. Those interested in the history of this "fourth arm of government" will find most of it in an article by a former member, Michael Coper, in [1989] 63 ALJ 731.

[15] Lansell v Lansell [1964] HCA 42; [1964] 38 ALJR 99 at 104 per Taylor J. His Honour added: "... but it is beyond question that, although the meaning of these terms does not change, their denotation must extend as new concepts develop." Hence, the Court decided that section 51(xxii) - "Divorce and matrimonial causes" - had, within it, the capacity to provide for the enactment, in 1959, of a law of the Commonwealth which, back in 1900, would not have been recognised anywhere in Australia as a "matrimonial cause": to wit, a suit for a property settlement in favour of a wife against a "guilty" husband - only the reverse being known at the turn of the last century.

The form of the wording used by Taylor J was earlier put forward in Ex parte Professional Engineers' Association [1959] HCA 47; (1959) 107 CLR 208, by Windeyer J in terms which, on first-reading, can be a bit mind-numbing:

"We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900. The denotation of words becomes enlarged as new things falling within their connotations come into existence or become known. But in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes." (p.267)

His Honour's formula uses two particular words - "denotation" and "connotation" - in a specialised manner: that used by John Stuart Mill in System of Logic, Ratiocination and Inductive in 1843. Denotation is the naming of a thing to which a generalised word applies. Connotation is not only that which may denote a subject but, at the same time, (and this is the important part) implies its attributes.

If an extension of the application of a word arises (ie., something with similar attributes to that which is already included within the connotation), it can be connoted within the original word.

When such an extension occurs to words which name a subject-matter in the Constitution, that extension can be encompassed without any alteration to those words. Such words simply do some additional work. But, should an attempt be made to include within a word or words something which has different attributes, this cannot properly be done.

It equally follows that, if to include a possible extension you need to alter the connotation of a word from that which it had in 1900, you are going to the extent of attempting to put a new word into the Constitution and, therefore, this is surely the basis behind the principle which precludes a change in the connotation.

The application of the formula may not necessarily produce results as precise as P1 V1 = P2 V2; but it strikes the author as being nonetheless useful. The only troublesome part may be in working out "the attributes".

A further deficiency may be in a continued use of "denote" and "connote". They are two of the imported, Latinate words which did not achieve full currency. However, most words coined to describe the function of words fail to attain popular usage. And, if they do, the precision of their specialised usage may be blunted.

Twenty years after Windeyer J came up with the formula, Barwick CJ echoed it in Attorney-General for Victoria v Commonwealth [1981] HCA 2; [1981] 55 ALJR 155 by saying that "the denotation of the words may expand, whilst their connotation remains fixed" and that the meaning to be assigned is that:

"... in which the words of the text were understood in the day of their expression. ... the then current meaning of the words used in the text is the meaning, the connotation, they must thereafter bear..." (p. 157);

[16] Shorter Oxford English Dictionary on Historical Principles {SOED}, Third Edition (1970) p.1781.

[17] SOED, p. 1702.

[18] Precise usage of the word, from around that era, is found in section 100 of the Canadian Constitution Act 1867:

"The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are for the time being paid by Salary, shall be fixed and provided by the Parliament of Canada." (emphasis added)

[19] SOED, p. 47.
Mutual Acceptance Company Limited v. Federal Commissioner of Taxation [1944] HCA 34; (1944) 69 CLR 389 dealt with the use of the word as part of a constrained statutory definition under the Pay-roll Tax Assessment Act 1941-1942. The reasons for decision of Latham C.J. and Dixon J., in particular, are, nonetheless, pertinent to this present context.

See also the reasons for decision of Hungerford J. in Alliance Management Pty Ltd v Caputo (1996) 82 IR 370 commenting on those of Latham C.J.

[20] Or as, for instance, in the case of Victoria, by section 126 of the Constitution Act Amendment Act 1890, it was that:

"Every member of the Legislative Assembly shall be entitled to receive reimbursement of his expenses in relation to his attendance in the discharge of his Parliamentary duties at the rate of Three hundred pounds per annum...."

For the amounts of the other allowances, see J. Quick and R. Garran: The Annotated Constitution of the Australian Commonwealth, Angus & Robertson: 1901 at p.499. (The authors are, of course, known to most readers. It was John Quick who put forward a plan at Cowara, in July 1893, at a meeting between the Australian Natives Association and the border leagues - and after the Federal Movement had come to somewhat of a stand-still - that the colonial parliaments be asked to pass identical enabling Acts providing for the election by the people of delegates to a convention to draft a constitution and for the submission of the draft to popular ratification; which plan "has come to be regarded as the starting point of a new Federal Movement, one more popularly based than that associated with Sir Henry Parkes." A Constitutional History of Australia, W.G. McMinn (OUP, 1979) p. 108. He was a delegate at the Conference at Adelaide in 1897, and the one at Melbourne in 1898. As a young man, Quick had been the first student to be awarded a Doctorate of Laws from Melbourne University, on his merits. Robert Garran had been secretary to the 1897 Drafting Committee and was the first permanent under-secretary in the Attorney General's Department.)

[21] "Mr. (afterwards Sir Henry) Wrixon ... one of the most upright and honourable of men.": Alfred Deakin, by W Murdoch (1923) Constable & Co. Ltd. at p 75.
William Marmion was "A successful Fremantl merchant, he was known as a fluent speaker and a keen debater, and one of the most popular members of the Legislative Council.": Forrest 1847-1918 Vol 1 by F K Crowley, UQP, 1971 at 272.

[22] Official Report of the National Australasian Convention Debates, Sydney [1891], p.653.

[23] J.Quick and R.R.Garran, op cit, 499.

[24] Convention Debates, Sydney [1891], p.653-4.

[25] J.Quick and R.R. Garran, op cit, 498.

[26] Convention Debates, Adelaide [1897] p. 1031-2

[27] The power of a William Trenwith in debate in a parliamentary setting is not usually found today (and his capacity as such was even then recognised by commentators, such as Alfred Deakin in his book dealing with the Conventions). The joust between he and Sir William is, on paper at least, both lively and quite entertaining, with much of it going on to deal with allegations of how certain Victorians and Tasmanians received their "benefit" from being in Parliament from foreknowledge of the arrival on the market of river-front land; and appearing to end in somewhat of a rout for the otherwise redoubtable Sir William. But, finally, the motion was put that the amount of the allowance stay at £400, rather than be £500. This was contrary to William Trenwith's proposal. It was, however, carried by 26 votes to 9.

[28] He was later elected to the Senate in 1903.

[29] He was at that time Secretary of the Victorian Operatives Bootmaking Union; and paid a salary of £300 per annum.

[30] In the Colonial Parliaments, ways had been found to get around this. During debate in the newly opened Federal Parliament in 1902 on the piece of legislation which got rid of the effect of this phrase (by way of the very first Parliamentary Allowances Bill), the member for the electorate of Tasmania, the remarkable King O'Malley (born in North America and there the founder - somewhere in Texas - of the Waterlily Rock-Bound Church) reflected how: "In the olden times, after an election, the Ministry called Parliament together so that the honourable members could draw their allowances; but if a man was unfortunate enough to be elected and not to be sworn in before the close of a session, he had to wait six or seven months..." Similar experiences were noted by other honourable members. Parliamentary Debates, 1st Session p. 16059.

[31] Page 499.
The last aspect - of attendance in Parliament itself - is less time-consuming here than for any other comparable country. An examination of the sitting days between 1985 and 1993 for the following Westminster-style parliaments showed that the United Kingdom averaged 164 days, the United States 143 days, Canada 139 days, New Zealand 93 days and Australia 62 days. This amount of sitting-days, for Australia, is about the same as in the decade following 1901. Institute of Public Affairs Review Vol. 46 No.4, Anthony D. Smith.

[32] The inclusion of "Minister of State" was abandoned by the Act of 1952 and has not been re-included in any subsequent similar legislation.

[33] A number of words such as "emoluments" which were subsequently used will be referred to in this paper as needs be. However, this word "emoluments" lasted only until a repeal and re-enactment of the Section in 1952. It has never since reappeared in this Act - or in the three other Acts which were eventually to deal with this area: the Remuneration Tribunal Act 1973, the Remuneration and Allowances Act 1990, and the Parliamentary Entitlements Act 1990.

[34] Saving, of course, the office of Minster of State; which may involve additional time in work.

Of the other four offices, the first two, the office of President of the Senate and Speaker of the House of Representatives, are prescribed by Sections 17 and 35 of the Constitution. No provision, however, is made in these Sections for a salary, remuneration or additional allowance to accompany the office. Nor is reference made therein to the position of Chairman of any of the committees of the Parliament (the future existence of which committees is recognised by section 49).

[35] There was no discussion in the Parliament as to the basis on which the legislation was being made.

The additional question as to whether these particular payments constitute the recipient as holding an "office of profit under the Crown" in accordance with placitum (iv) of s.44 of the Constitution is an interesting one - but outside the scope of this present paper. However, interested readers will find the possible applications of s. 44(iv) discussed by three Justices of the High Court in Sykes v Cleary [No.2] [1992] HCA 60; [1992] 67 ALJR 59, at pp.61-63.

[36] This phrase, "until the parliament otherwise provides", occurs 19 times in the Constitution.

[37] And (iii) has been earlier dealt with.

[38] The amount thereof may be fixed for the sake of convenience, after making a global assessment; and particularly in the case of a relatively large number of people who may indeed incur varying but, on average, not dissimilar amounts of loss. This would thereby remove the difficulty otherwise attendant upon having to make distinction between the group. Or, as predicated by Quick & Garran (supra), the allowance may be apportioned: "...providing that each member shall be paid according to the distance which he travels or the attendance which he gives at the sittings of his House."

[39] Power to thus extend the capacity to legislate does not reside within the so-called "incidental power" of section 51 (xxxix).
"This power [Section 51 (xxxix)] is concerned with matters incidental to the execution of a power, not with matters incidental to its subject matter. It cannot be used to expand the subject-matter of any of the enumerated legislative powers. Illustrations of the operation of paragraph (xxxix) are not numerous ..." Gazzo v. Comptroller of Stamps (Vic.) [1981] HCA 73; 56 ALJR 143, Aickin J. at 158.

[40] Section 5.

[41] Section 9.

[42] Sub-section (6) provided that if the Trust was of the opinion that a woman had married a member "principally for the purpose of becoming entitled to a benefit under this Act", the Trust could determine that "no such pension or benefit shall be paid". No provisions of this ilk remain in the present Act; which also now provides for a remaining husband.

Also, both the surviving husband or wife can now remarry without loss of the moneys being paid to them by the Commonwealth (and which moneys are now called an "annuity", not, as previously, a "pension").

However, until quite recently, a residue of an earlier provision against an adventuress remained and which barred from receipt of this pension anyone, male or female, who married an ex-member entitled to one, if, at marriage, the ex-member was 60 or over and died within the next 5 years: Parliamentary Retiring Allowances Act 1948-1973, s.19(7).

[43] The amounts payable under this scale are increased if the member has been a Minister of State or "an office holder": see Section 18(9).

[44] The husband or the wife of a member who dies (or of a retired member who is receiving a pension who dies) is to receive, for the remainder of their life, five-sixth of the pension which their spouse would have received (or was indeed receiving).

No matter when a member may die after first being elected, the member is, for the purposes of the "annuity" to be paid to their husband or to their wife, deemed to have served at least 8 years. (Parliamentary Contribution Superannuation Act 1948, s.19.)

[45] As to the phrase "retiring allowance", there remained, at the time of Federation, in at least two of the Colonies, a one-off payment made to some civil servants on departure. In South Australia, for those who retired having "attained the age of sixty years, or have been twenty years in the Civil Service", it was a sum equal to one month's salary for every year served: Civil Service Act, 1874 s. 32. This was known as a retiring allowance and, although the concept was sui generis, it was somewhat akin to the original long-service leave; being to provide the means to go "home". (Indeed, the Section dealing with such "leave of absence on half salary" after 10 years service - and on full salary after 20 years - was s. 30 of the same Civil Service Act, 1874).

During the course of the Debates, a Section of the Constitution gradually evolved to accommodate those officers of the various departments from the Colonies which were to be taken over by the Commonwealth.

"84. Any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing rights and shall be entitled to retire from office at the time, and on the pension or retiring allowance, which would be permitted by the law of the State..." (emphasis added)

Section 84 also provides that a State and the Commonwealth share responsibility for payment. During the Adelaide Conference in April 1897, Richard O'Connor, from New South Wales, was asked by the South Australian Premier, Charles Kingston QC, what this might mean, in money terms, for the Commonwealth.

"O'CONNOR: I have no actual idea, but it would not mean a great deal, because there are not many colonies in which the system of pensions and gratuities exists.
Mr. Kingston: We have retiring allowances.
Mr. Barton: Have they not almost died out?
Mr. Kingston: Oh, no."
(Official Record of the Debates of the National Australasian Convention, Adelaide [1897] Page 864.)

A pension and a retiring allowance were quite distinct. So much is made clear by Mr. F. W. Holder MP and Mr. J. H. Gordon MLC during debate on the same section ten months later in Melbourne.

Mr. Gordon: "We have not got one pension in South Australia". (Official Record of the Debates of the Australasian Federal Convention [1898] p. 993)
....
Mr. Holder: "Though we have no pension list in South Australia, we have a retiring allowance, which is to be paid to certain officers on their retirement from the service;..." (Ibid. at p.995)
....
Mr. Holder: "We have managed to get rid of the pension system in South Australia ..." (Ibid. at p.996)

And, eighteen years later, that State also got rid of the retirement allowance: via the Public Service Act 1916, which did not re-enact the Section of the Civil Service Act, 1874 dealing with retirement allowances. (The 1916 Act also cut the long-service leave to a third of what it had been.)

[46] Sections 5 (1) and 5 (2) made similar provisions as to members of the House of Representatives.
A member is not required to account for how the "electorate allowance" is spent.

[47] The "electorate allowance" is apparently treated by the Australian Tax Office simply as income. "The electorate allowance is taxable unless it can be shown that the expenditure was tax deductible. Any balance not accounted for is liable to income tax." Background Paper 7, 1997-98 (17 November 1997); Remuneration of Members of the Parliament of Australia.

[48] Sec. 4(1) and 4(2).

[49] Section 12 of the Act, entitled "Fees and allowances", provides: "A member ... shall be paid such fees and allowances as are prescribed."
The annual "fees" are presently $52,000 for the President and $25,000 for each member:
Regulation 4 of Remuneration Tribunal (Members' Fees and Allowances) Amendment Regulations 1998 (No.1). The "allowances" are those "payable to an officer of the Australian Public Service at the level of Departmental Secretary": Regulation 5 of Remuneration Tribunal (Members' Fees and Allowances) Regulations.

[50] The sub-sections of this Section appear to hand over the whole of a legislative subject-matter of the Constitution to a body outside Parliament. It is, however, beyond the scope of this paper to comment on the possibility that, as a result, the Section might therefore not be a law made pursuant to an actual head of legislative power and, if so, therefore be beyond the legislative power of the Commonwealth Parliament. Readers interested in this aspect are again referred to the article by Malcolm C.J., op cit.

[51] The inclusion into Section 7(1) of the words "(including allowances in accordance with section 48 of the Constitution)" would seem to be quite unnecessary, unless these words have been used for a purpose similar to the use of word "allowance" in the 1948 Act which initiated pensions; ie., to endeavour to provide an ostensible validity to the scope of the legislation.

[52] The genesis of the Remuneration and Allowances Act 1990 is to be found at 170 Deb. Parl. (H. of R.) pp. 1015-18. Schedule 3 of the Remuneration and Allowances Act 1990 was amended in 1994 by Schedule 2 of the Industrial Relations Legislation Amendment (No. 2) 1994. Clause 2 of Schedule 2 provides that "The Members of Parliament annual salary is equal to the minimum SES Band 2 annual salary."

[53] Section 5(2) is a remarkable provision - and it is easy to imagine the reasoning behind its inclusion. But it is not easy to envisage how it was ever expected to operate, in the real world. In any event, there was, apparently, within the department responsible for drafting the Act still a vestige of a foreboding about such matters even as late as 1990.

[54] It was not then said that this particular ticket was for travel on First Class or, at the least, Business Class; however, this is implied by what followed in Clause 9(2):
"The class of travel entitlement of the member may be downgraded to offset the cost of the fare of an accompanying spouse or to enable the travel to be extended."

[55] The need to summarise these arises because the "benefits" cover 19 A4 pages, single-spaced. Not all benefits are included. (The summary retains the clause-numbering of the Determination.)

[56] An examination of the legislation which enables payments to be made to the other branches of government - for instance, payment of pensions to the Justices of the Courts referred to in Section 71 of the Constitution - would extend this article beyond acceptable lengths. Nonetheless, a number of the observations made as to the allowance payable under section 48 may be made pro tanto as to the remuneration to be paid pursuant to Section 72(iii).

And, it is at least interesting to note the unusual circumstances which produced the first such pension: to Sir Samuel Griffith, via the Chief Justice's Pension Act 1918. As was said at the time, the legislation was being made for one man. It was simply so Sir Samuel should then resign: he was showing increasing signs of senility. But, appointments were then for life and he was resolved to remain in office unless he received a pension. The Chief Justice's Pension Act - of only three Sections - occupies but half a page. By s. 2:

"The First Chief Justice of Australia shall be entitled upon resigning his office to demand a pension..."

The only constitutional basis seemingly put forward in the Parliament to support the legislation was not that it was "remuneration" in accord with Section 72(iii) but that Section 84 of the Constitution (see endnote 45 above) might provide for it: in that Sir Samuel, in coming from the Queensland Supreme Court, may have been one of those officers who had transferred to the Commonwealth from a State and, in his former position there, having entitlement to a pension.

So much comes through from the objections of Senator Lt-Colonel O'Loghlin: "By no stretch of the imagination can the present Chief Justice be called a transferred officer. The position was not in existence when the Commonwealth was inaugurated." Parliamentary Debates (1918), p. 9894. In the Senate, the debate was fiery. Opposition members called the Bill "unfair", "a damnable proposal", "worse than an outrage" and "a crime against the people of the country". His pension of £1,750 would, it was said, pay that of seventy pensioners who received 12s.6d. a week; he had already been "the highest paid official in the Commonwealth for 15 years on a salary of £3,500". The vote was carried on party lines, 14-8. No provision was made for the puisne Judges: Barton, Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ. A year after the Chief Justice's Pension Act 1918, Sir Edmund Barton died, having been in ill health for some time. He had been a Justice of the Court for 16 years, and, throughout, serving without the prospect of a pension. (Richard O'Connor, the other original appointment to the Court, had died in 1912, having likewise served 8 years). The remaining five Justices of 1918 had either been appointed in 1912 or in 1913; and all then taking the position without there being any prospect of a pension. Indeed, during debate on the Chief Justice's Pension Act 1918, mention was made of the fact that, when, in 1903, the First Parliament had been setting the remuneration to be paid to the Justices of the Court by the Judiciary Act, it had been emphasised that it was setting this at a rate commensurately higher than it otherwise might have been on the basis that no pension was being paid - or was thereafter to be paid.

[57] The wording of the entitlement actually excludes members from travelling at government expense on "party business". However, it goes on to say that "party business" which consists of:
"meetings of a parliamentary political party, or of its executive, or of its committees, and the national conference of a political party of which he or she is a member"
is not excluded from the entitlement. It is therefore not easy to see how such an exclusion would, in effect, be an exclusion at all.

The granting of a entitlement coupled with a seeming constraint, or vice versa, is not infrequently to be met with in the text of the Determination.

[58] "nominee" means a parent, offspring over the age of 16, a brother or sister, or, "in special circumstances" one other person from time-to-time nominated by the member and approved at the discretion of the Minister: Clause 2.7. Each of the children of a member who is a "dependent child" has his or her own, separate travel entitlements. These are referred to later. (A "dependent child" is one who is under 16; or a person who is under 25 and substantially dependent on the member.)

[59] None of them need go to Canberra under this entitlement. They may convert any of the trips to intrastate travel instead: Clause 2.14.

[60] This Determination does not have a requirement that the member has been invited; or that the member go to the function. An invitation to the member's spouse or nominee is seemingly sufficient. No limit is placed on the number or such functions. Nor, in theory, are these functions limited to those of the Commonwealth government; and can, apparently, be anywhere in Australia.

[61] Determination 24 of 1990 first made provision for this. A deduction of $6,000 a year was required, from the electorate allowance. According to the citation below, this is now between $500 and $700 a year; being the same as for the Senior Executive Service of the Public Service. (Remuneration of Members of the Parliament of Australia; op. cit.)

[62] Sub-clauses 5.5 and 5.6 are mentioned because (apart from the $500-$700 contribution for use of a car referred to in Clause 5.1) they are the only provisions of the Determination where the "electorate allowance" can be reduced by payment of a member's electorate expenses. (Should this reduction be relatively large, it might justify an actual electorate allowance for such members - if only for payment of this particular expense.)

[63] The author does not know what these are (apart from the contribution of $500-$700 a year mentioned in the earlier footnote).

[64] "Charter transport" includes aircraft and such other reasonable modes of transport within and for the service of the electorate: clause 6.1.

[65] These entitlements are additional to the travel entitlements set out in Clause 2.1.