Your Will Be Done (p3 of 10)
A booklet by Arthur A Chresby
(Research Analyst in Constitutional Law, and formerly Federal Member for Griffith in the House of Representatives.)
(2) WHAT IS THE LEGAL FUNCTION AND DUTY OF A PARLIAMENTARIAN?
While there are many British and Australian judicial interpretations on precisely what IS the true legal function and duty of a Member of parliament it will be sufficient, here, to give two such. Heavy print in these two quotations has been added by this writer to stress the points involved.
The first is from a British case (for those of legal mind see A.C.1910, at p. 110) where Lord Shaw of Dumfermline stated, amongst other things:-
"Parliament is summoned by the Sovereign to advise His Majesty freely. By the nature of the case it is implied that coercion, restraint, or money payment, which is the price of voting at the bidding of others, destroys or imperils that function of freedom of advice which is fundamental in the very constitution of Parliament. "
The second is from a High Court case ('Home v Barber' (1920) 27 C. L. R. p. 500):-
"When a man becomes a Member of Parliament, he undertakes high public duties. These duties are inseparable from the position: he cannot retain the honour and divest himself of the duties. One of the duties is that of watching on behalf of the general community the conduct of the Executive, of criticising, and, if necessary, of calling it to account in the constitutional way by censure from his place in Parliament - censure which, if sufficiently supported, means removal from office. That is the whole essence of responsible government, which is the keystone of our political system, and is the main constitutional safeguard the community possesses. The effective discharge of that duty is necessarily left to the Member's conscience and the judgement of his electors, but the law will not sanction or support the creation of any position of a Member of Parliament where his own personal interest may lead him to act prejudicially to the public interest by weakening (to say the least) his sense of obligation of due watchfulness, criticism, and censure of the administration. "
(The above judicial decision on the duty and function of a Member of Parliament surely gives rise to the following legal question:-
in debating and voting on strict party lines in his House of the Parliament is not a Member of the dominant party in serious breach of the law, and in contempt of the Court, for how can a Member obey strict party rules and the High Court decisions at one and the same time?)
More simply put, these and other interpretations mean:-
(a) THE SOLE LEGAL FUNCTION of a Member of Parliament IS TO FREELY ADVISE the Queen in the government of the Country, according to the clearly expressed will of the people, on any matter or thing, i.e., his sole legal function is to legislate.
(b) In legislating, his SOLE LEGAL DUTY is that, like a judge entering his court, he shall enter his House of the Parliament, each official Sitting day, and with judge-like dignity and decorum, he shall honestly, impartially, and searchingly examine all matters that properly may be placed before him and, with unbiased judgement, vote according to his conscience and his sense of legal responsibility.
No Member of Parliament has any legal function or duty outside of his House of Parliament, unless that House officially details him otherwise.
(d) It is no legal part of his function or duty to interview Ministers of the Crown or departmental officers for and on behalf of his electors or others.
(e) Such interviewing is purely a social and moral obligation that flows from his public status; obligations which can be, and are, performed by other non-parliamentary public figures without monetary rewards, either by salary or allowances.
(f) There is no constitutional-legal authority for paying Members, out of Crown revenue, for the performance of purely social responsibilities, whether that payment be a parliamentary salary and allowances, or just allowances - State and Federal Parliamentary Allowance Acts notwithstanding.
Of necessity, the following crucial questions must arise out of the aforestated judicial interpretations:-
(a) Who, or what, is it that deliberately prevents back-bench Members of Parliament from faithfully carrying out their sole legal function and duty, as judicially defined?
(b) If it is claimed that legal authority exists then, precisely, what Section of the Constitutions grant constitutional power to pay Members' of Parliament salaries, out of Crown revenue, for not faithfully carrying out their judicially defined legal function and legal duty?
(c) Where is the precise Constitutional power to pay allowances, out of Crown revenue, to back-bench Members of Parliament for the performance of judicially defined PURELY SOCIAL OBLIGATIONS of interviewing Ministers of the Crown, and departmental Officers, for and on behalf of constituents?
(For the legally-minded, it is suggested that the going would be extremely rough, if not impossible, to claim the "implied and incidental powers" of the Constitutions as the authority for such payments.)
Seventy-seven years of party political control over our seven Australian Parliaments reveal that it is only on very rare occasions that Parliamentary party leaders agree to allow their back-bench Members to have a free, or "conscience", vote. On all other occasions party leaders and party controllers, DEMAND ABSOLUTE LOYALTY to the party, and INSIST on voting BEING ON PARTY LINES.
This raises the further crucial question of whether, under State Criminal Codes and the Commonwealth Crimes Act, Parliamentary party leaders, and controllers, are not severally and individually guilty of deliberately breaching those codes and statutes, i.e., of being guilty of conspiring to prevent back- bench Members of Parliament from fulfilling their judicially defined legal function and duty in their Houses of Parliament?
It also raises the basic question, touched on on page 4, of whether or not back-bench Members of Parliament themselves violated their legal duty to the People by freely allowing themselves to be coerced by their leaders and party into not correctly fulfilling their judicially defined legal function and duty and, of a consequence, thereby rendering their Parliamentary Seat vacant by an act of overt or covert conspiracy.
This Book is reprinted in memory of the author, Arthur A. Chresby in appreciation for his 53 years of research and study into constitutional law.
Due acknowledgement should be given when quoting from material on this Site