Alley v Gillespie [2018] HCA 11: Parliamentary Eligibility and the Common Informers Act
Wednesday 21 March 2018 @ 12.07 p.m. | Legal Research
Today, 21 March 2018, the High Court of Australia released its judgment in the case of Alley v Gillespie [2018] HCA 11. In this case, the full court of the High Court held that the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) ("the Common Informers Act") does not confer jurisdiction upon the Court to decide whether a person is a person declared by the Constitution to be incapable of sitting as a senator or as a member of the House of Representatives.
Background
Dr David Gillespie was elected to the House of Representatives on 7 September 2013, as a representative for the Nationals party. He was subsequently re-elected on 20 July 2016. Dr Gillespie’s family company, Goldenboot Pty Ltd, owns a shopping centre complex in Port Macquarie. One of the tenants in this shopping centre has a licensing agreement with Australia Post to operate as an Australia Post outlet.
On 7 July 2017, Mr Peter Alley, the unsuccessful Labor candidate for the seat held by Dr Gillespie, applied to the High Court under section 3 of the Common Informers Act. Mr Alley claimed that, by reason of section 44(v) of the Constitution, Dr Gillespie was incapable of sitting as a member of the House of Representatives. Mr Alley argued that, by way of the agreement with Australia Post, Dr Gillespie had a direct or indirect pecuniary interest “with the Public Service of the Commonwealth”.
On 29 September 2017, Justice Bell referred the question of jurisdiction to the Full Court of the High Court. The question referred to the Full Court was (at paragraph [3]):
“Can and should the High Court decide [in this proceeding] 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 Act]?”
The Legislative Scheme
Section 46 of the Constitution of Australia provides that:
“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.”
The Parliament has "otherwise provided" by introducing the Common Informers Act which significantly reduced the quantum of damages which may be recovered by this provision in the relevant jurisdiction. Section 3 of the Common Informers Act says that:
(1) Any person who, whether before or after the commencement of this Act, has sat as a senator or as a member of the House of Representatives while he or she was a person declared by the Constitution to be incapable of so sitting shall be liable to pay to any person who sues for it in the High Court a sum equal to the total of:
(a) $200 in respect of his or her having so sat on or before the day on which the originating process in the suit is served on him or her; and
(b) $200 for every day, subsequent to that day, on which he or she is proved in the suit to have so sat.
(2) A suit under this section shall not relate to any sitting of a person as a senator or as a member of the House of Representatives at a time earlier than 12 months before the day on which the suit is instituted.
(3) The High Court shall refuse to make an order in a suit under this Act that would, in the opinion of the Court, cause the person against whom it was made to be penalized more than once in respect of any period or day of sitting as a senator or as a member of the House of Representatives.
Reasoning
The Full Court of the High Court unanimously held that, in this present case, the Court did not have jurisdiction to decide the question of Dr Gillespie’s eligibility to sit as a member of the House of Representatives.
The High Court found that the responsibility for determining or referring the question of eligibility rested with the House of Representatives. The High Court found that:
“Properly understood, the place of s 46 in the scheme of Ch I Pt IV is to allow for the imposition and recovery of a penalty in a common informer action. It is the role of the Court to determine the quantum of the penalty under the Common Informers Act. It may do so when the anterior question of liability is determined by the means provided by s 47“ [at 67]
As Justice Gageler outlined in his judgment [at 80]:
"The consequence... is that the element of the statutory cause of action spelt out in s 3 of the Act which requires that the person against whom suit is brought be "a person declared by the Constitution to be incapable of so sitting" as a senator or member can be established only by a separate determination of that question by the Senate or the House or by this Court sitting as the Court of Disputed Returns under Pt XXII of the Electoral Act. The High Court cannot determine the question for itself in the exercise of the jurisdiction conferred by s 5 of the Common Informers Act."
The plaintiff's proceeding was thus stayed until the question of eligibility could be dealt with.
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Sources:
Alley v Gillespie [2018] HCA 11.
Common Informers (Parliamentary Disqualifications) Act 1975 (Cth), available from Timebase's LawOne service.
Constitution (Commonwealth of Australia Constitution Act) (Cth), available from Timebase's LawOne service.
