Section 46 of the Constitution of Australia

Section 46 of the Constitution of Australia provides that if a Senator or member of the House of Representatives is constitutionally ineligible or disqualified from holding that position, they will be liable to pay any person who sues for it 100 pounds for every day that they have sat.[1] With the introduction of the Australian dollar on 14 February 1966, where 100 pounds equaled A$200.[2]

Section 46 only applied "until the Parliament otherwise provides".[1] Prompted by the case of James Webster,[3][4] a Senator whose eligibility to sit was questioned in the High Court, Parliament passed the Common Informers (Parliamentary Disqualifications) Act 1975 ("Common Informers Act"),[5] which replaced the constitutional scheme of penalties for members sitting while ineligible. If Webster was found to have sat whilst ineligible, the penalty under the constitution might have exceeded $57,200.[6]

Under the Common Informers Act, the quantum of damages which can be recovered is significantly reduced. A person found to be ineligible is liable for a single payment of $200 for sitting in Parliament on or before the day they received notice of the suit challenging their eligibility, and a $200 payment for every day they sit in Parliament after receiving notice of the suit. A twelve-month statute of limitations has been introduced, and it is made explicit that a person may not be penalized twice for the same sitting.[7]

The Common Informers Act was invoked in the matter of Alley v Gillespie.[8] The suit brought under the Common Informers Act was against Nationals MP Dr David Gillespie. It was alleged that Gillespie was in breach of s 44(v) of the Constitution because his family company, Goldenboot Pty Ltd, owned part of a shopping centre in Port Macquarie, NSW, in which an Australia Post franchise operated.[9] The following question was heard on 12 December 2017 by the Full Court of the High Court:[10]

Can and should the High Court decide whether the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of section 3 of the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) (“Common Informers Act”)?[11]

On 21 March 2018 the High Court unanimously determined that the answer to the question was "no",[8] with the majority finding:

Whilst the question posed by these words in s 46 is one necessary to be determined before a person is liable to the imposition of a penalty, it is not necessary that the answer to that question be determined by the court hearing a common informer action. Indeed, there may be good reason to conclude that the question should not be determined in that proceeding, given that the same question is to be dealt with under s 47 and that it may be part only of the overlapping questions which may there arise.[8]:para 52

Gageler J provided separate reasoning:

The question posed by s 46 of whether a senator or member against whom a suit is brought is a “person declared by this Constitution to be incapable of sitting” answers the description of a “question respecting the qualification” of that senator or member within the meaning of s 47. The consequence is that, unless the Parliament otherwise provides for the purpose of s 47, that element of the cause of action created by s 46 or by a law enacted under s 51(xxxvi) for the purpose of s 46 can only be established by a prior determination of the Senate or the House.[8]:para 74

The result of the decision is that the operation of s 46 of the Constitution (and by extension the Common Informers Act) requires a prior finding of ineligibility by the House of Representatives or the Senate (depending on which house the affected person is a member of), or the Court of Disputed Returns exercising its jurisdiction under the Commonwealth Electoral Act 1918 (Cth) (through either the petition or referral mechanism in Part XXII). The penalty provided for under the Common Informers Act may only thereafter be pursued once a finding on liability has been made.

See also

References

  1. 1 2 Constitution (Cth) s 46 Penalty for sitting when disqualified.
  2. ↑ "Introducing the New Decimal Banknotes". Reserve Bank of Australia Museum. Reserve Bank of Australia. Retrieved 1 March 2017.
  3. ↑ Re Webster [1975] HCA 22, (1975) 132 CLR 270 (24 June 1975), High Court
  4. ↑ Harris, I. C. (2005). House of Representatives Practice (PDF). Canberra: Department of the House of Representatives. p. 154. ISBN 0 642 78510 4.
  5. ↑ Common Informers (Parliamentary Disqualifications) Act 1975 (Cth)
  6. ↑ Murray, S. "Re Webster: Members of Parliament, Pecuniary Interests and Disqualification – A Background". Retrieved 3 March 2017.
  7. ↑ Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) s 3.
  8. 1 2 3 4 Alley v Gillespie [2018] HCA 11 (21 March 2018), High Court.
  9. ↑ Gartrell, Adam (2017-07-07). "Labor launches High Court action against Turnbull MP in bid to topple government". The Sydney Morning Herald. Retrieved 2017-11-11.
  10. ↑ "Alley v Gillespie case S190/2017". High Court.
  11. ↑ Alley v Gillespie [2017] HCATrans 196 (29 September 2017).
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