By Harry Main
If you were one of the countless law students who followed the Section 44 debacle of 2017 with dismay, you might be interested to know that the next time a bunch of ineligibly elected MPs are floating around Parliament, you can take action. How, you might ask? You can simply do as any self-respecting litigious lawyer would do – sue them!
You might be familiar with Section 46 of the Constitution, which provides:
Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.
Before you start Googling 1901 inflation levels to see what £100 per day will land you today, you ought to know that there has been an update to s 46. We now have a piece of legislation called the Common Informers (Parliamentary Disqualifications) Act 1975.
This Act exists for two reasons: Firstly, to supplement s 46, and secondly, to prevent a majority in the House or Senate from nefariously refusing to refer the matter of a Member’s eligibility to the Court of Disputed Returns.
Section 3 of the Act entitles the plaintiff to $200, plus an additional $200 for every day the ineligible member continues to sit after being served with the suit. So, the money isn’t that great. On the bright side, the Act ostensibly gives a powerful tool to ordinary people who want to take on dubiously eligible MPs. This might have been the thinking of the ALP’s Peter Alley, who brought a suit under the Act against sitting Nationals MP David Gillespie.
The question mark over Gillespie’s eligibility concerns a potential breach of s 44(v) of the Constitution. Gillespie owns a shopping centre in Port Macquarie, and inside that shopping centre is an Australia Post outlet. Given Australia Post is a government owned corporation, Gillespie may have an indirect pecuniary interest of the sort prohibited by s 44(v). So, the stage was set in Alley v Gillespie for the Common Informers Act to claim its first casualty.
Unfortunately for those looking to personally bring down MPs, the High Court unanimously found that it did not have jurisdiction to consider the substantive issue of whether the Constitution has in fact rendered Gillespie ineligible. The Court was unwilling to wade into this issue because of s 47 of the Constitution, which requires that the question of a member’s qualification be addressed by the House in which the question arises.
Section 3 of the Act requires that the sitting MP against whom the suit is brought has been “declared by the Constitution to be incapable of so sitting.” In a joint judgement, Kiefel CJ, Bell, Keane and Edelman JJ rejected that the Court is permitted to assess this element of s 3, because of the restriction imposed by s 47 of the Constitution. Moreover, the Court had not been granted authority to assess Gillespie’s eligibility by a referral under s 376 of the Commonwealth Electoral Act 1918.
Consequently, the Court ordered that Alley’s proceeding under the Act be stayed until the question of Gillespie’s eligibility is determined. At the date of publication, Gillespie has not been referred to the High Court.
So, what’s the rub? It seems that the Common Informers Act is impotent. If the whole point of the Act was to provide for a contingency in the event of a House that stubbornly refuses to refer ineligible members, then the Act is rather pointless. Gageler J touched on this matter by suggesting it is likely that the “Attorney-General [under whom the Act was implemented] was acting on a considered view of the constitutional structure which the High Court now unanimously rejects.”
Whatever the reason, it looks like making a few thousand bucks off the Common Informers Act is off the table.