Section 43 of the Constitution of Australia prevents a person from being a member of both houses of the

Parliament of Australia The Parliament of Australia (officially the Federal Parliament, also called the Commonwealth Parliament) is the legislature, legislative branch of the government of Australia. It consists of three elements: the monarch (represented by the ...

. Section 43 states:

A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House. Member of one House ineligible for other.

In ''

Sykes v Cleary ''Sykes v Cleary''.The Case Stated (by Dawson J), and then the individual judgments, are separately paragraph-numbered. was a significant decision of the High Court of Australia sitting as the Court of Disputed Returns on 25 November 1992. The ...

'',. the High Court stated (in ''

obiter ''Obiter dictum'' (usually used in the plural, ''obiter dicta'') is a Latin phrase meaning "other things said",''Black's Law Dictionary'', p. 967 (5th ed. 1979). that is, a remark in a legal opinion that is "said in passing" by any judge or arbi ...

'') that the words "shall be incapable of being chosen" must refer to the process of being chosen such that a member of one house must resign their seat before even contesting an election for the other house. There have been numerous people who have served in both the

Senate A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...

and the

House of Representatives House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...

, most notably

John Gorton Sir John Grey Gorton (9 September 1911 – 19 May 2002) was an Australian politician who served as the nineteenth Prime Minister of Australia, in office from 1968 to 1971. He led the Liberal Party during that time, having previously been a l ...

who was appointed

Prime Minister A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister is not ...

, while still a member of the Australian Senate, following

the disappearance Disappearance may refer to: * Forced disappearance, when an organization forces a person to vanish from public view Books * ''Disappearance'' (Trifonov novel), published posthumously 1987 *''Disappearance'', novel by Guyanese writer David Daby ...

Harold Holt Harold Edward Holt (5 August 190817 December 1967) was an Australian politician who served as the 17th prime minister of Australia from 1966 until his presumed death in 1967. He held office as leader of the Liberal Party. Holt was born in S ...

in December 1967. In accordance with section 43 of the Constitution, Gorton resigned his seat in the Senate to contest Holt's now vacant and ultra-safe seat of Higgins at the subsequent

by-election A by-election, also known as a special election in the United States and the Philippines, a bye-election in Ireland, a bypoll in India, or a Zimni election (Urdu: ضمنی انتخاب, supplementary election) in Pakistan, is an election used to f ...

. Gorton maintained his office as Prime Minister under section 64 of the Constitution. Ministers of State.

References

{{Constitution of Australia Australian constitutional law