Section 46 of the Constitution of Australia

Last updated

Section 46 of the Constitution of Australia provides a penalty for a Senator or member of the House of Representatives who sits while constitutionally ineligible or disqualified from holding that position.

Contents

The text specifies that, until the Parliament specifies otherwise, the ineligible member 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, 10 shillings converted to A$1, [2] meaning that the penalty became A$200 per day. In 1975, Parliament passed the Common Informers (Parliamentary Disqualifications) Act 1975, which modified the penalty.

The Constitution

Section 46 of the Constitution states:

46. 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. [1]

Common Informers (Parliamentary Disqualifications) Act 1975

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 penalised twice for the same sitting. [7]

David Gillespie

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 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.

Malcolm Roberts

In September 2017, before the High Court ruling on the eligibility of Malcolm Roberts, blogger Tony Magrathea initiated a High Court action alleging that Roberts had sat in the Senate while disqualified, contrary to the Common Informers Act. On 24 June 2019, the High Court found the allegation proved and ordered Roberts to pay a penalty of $6,000 to Magrathea. [12]

See also

Related Research Articles

In the Parliament of Australia, a casual vacancy arises when a member of either the Senate or the House of Representatives:

A double dissolution is a procedure permitted under the Australian Constitution to resolve deadlocks in the bicameral Parliament of Australia between the House of Representatives and the Senate. A double dissolution is the only circumstance in which the entire Senate can be dissolved.

<span class="mw-page-title-main">1967 Australian referendum (Parliament)</span>

The first part of the 1967 Australian referendum to change the Constitution was the Parliament question, which related to the relative number of members in each house of the Australian Parliament − the so-called "nexus". The 1967 Australian referendum called by the Holt government on 27 May 1967 consisted of two parts, with the second question relating to Aboriginal Australians.

The Constitution Alteration Bill 1977, was a successful proposal to alter the Australian Constitution concerning the filling of casual vacancies in the Senate. It was put to voters for approval in a referendum held on 21 May 1977. After being approved in the referendum, it received the royal assent and became law on 29 July 1977.

<span class="mw-page-title-main">Politics of Australia</span> Political system of Australia

The politics of Australia operates under the written Australian Constitution, which sets out Australia as a constitutional monarchy, governed via a parliamentary democracy in the Westminster tradition. Australia is also a federation, where power is divided between the federal government and the states and territories. The monarch, currently King Charles III, is the head of state and is represented locally by the Governor-General of Australia, while the head of government is the Prime Minister of Australia, currently Anthony Albanese.

<i>Sue v Hill</i> Australian High Court case

Sue v Hill was an Australian court case decided in the High Court of Australia on 23 June 1999. It concerned a dispute over the apparent return of a candidate, Heather Hill, to the Australian Senate in the 1998 federal election. The result was challenged on the basis that Hill was a dual citizen of the United Kingdom and Australia, and that section 44(i) of the Constitution of Australia prevents any person who is the citizen of a "foreign power" from being elected to the Parliament of Australia. The High Court found that, at least for the purposes of section 44(i), the United Kingdom is a foreign power to Australia.

An office of profit means a position that brings to the person holding it some financial gain, or advantage, or benefit. It may be an office or place of profit if it carries some remuneration, financial advantage, benefit etc.

<span class="mw-page-title-main">James Webster (Australian politician)</span> Australian politician (1925–2022)

James Joseph Webster was an Australian politician. He was a Senator for Victoria from 1964 to 1980, representing the National Country Party (NCP). He served as Minister for Science (1975–1978) and Science and the Environment (1978–1979) in the Fraser government. He left politics to become High Commissioner to New Zealand, serving from 1980 to 1983.

<span class="mw-page-title-main">Court of Disputed Returns (Australia)</span> Special electoral jurisdiction of the High Court of Australia

The Court of Disputed Returns is a special jurisdiction of the High Court of Australia. The High Court, sitting as the Court of Disputed Returns, hears challenges regarding the validity of federal elections. The jurisdiction is twofold: (1) on a petition to the Court by an individual with a relevant interest or by the Australian Electoral Commission, or (2) on a reference by either house of the Commonwealth Parliament. This jurisdiction was initially established by Part XVI of the Commonwealth Electoral Act 1902 and is now contained in Part XXII of the Commonwealth Electoral Act 1918. Challenges regarding the validity of state elections are heard by the supreme court of that state, sitting as that state's court of disputed returns.

William Robert Wood is a British-born Australian who has campaigned on peace and justice issues. He was elected to the Australian Parliament in the 1987 elections as Senator for New South Wales, however the High Court subsequently declared his election was invalid as he was not an Australian citizen at the time.

Section 44 of the Australian Constitution lists the grounds for disqualification on who may become a candidate for election to the Parliament of Australia. It has generally arisen for consideration by the High Court sitting in its capacity as the Court of Disputed Returns.

This is a list of members of the Australian Senate from 1974 to 1975. The 18 May 1974 election was a double dissolution of both Houses, with all 127 seats in the House of Representatives, and all 60 seats in the Senate up for election. The incumbent Labor Party led by Prime Minister Gough Whitlam defeated the opposition Liberal Party led by Billy Snedden and their Coalition partner the Country Party led by Doug Anthony.

<span class="mw-page-title-main">Members of the Australian Senate, 2016–2019</span>

This is a list of members of the Australian Senate following the 2016 Australian federal election held on 2 July 2016. The election was held as a consequence of a double dissolution in which both houses of parliament were dissolved. Ordinarily, only half of the senators terms end at each election. In this case, all 76 senators were elected. At the first sitting following the election, half of the senators representing each of the six states of Australia were allocated six-year terms to end on 30 June 2022, with the remainder allocated three-year terms to end on 30 June 2019. The terms of senators from the Australian Capital Territory and the Northern Territory end on the day of the next federal election.

Rodney Norman Culleton is an Australian politician who was sworn in and sat as a Senator for Western Australia following the 2016 federal election. At that time he was a member of the Pauline Hanson's One Nation party, but on 18 December 2016 he resigned from the party to sit as an independent.

<i>Blundell v Vardon</i> Judgement of the High Court of Australia

Blundell v Vardon, was the first of three decisions of the High Court of Australia concerning the 1906 election for senators for South Australia. Sitting as the Court of Disputed Returns, Barton J held that the election of Anti-Socialist Party candidate Joseph Vardon as the third senator for South Australia was void due to irregularities in the way the returning officers marked some votes. The Parliament of South Australia appointed James O'Loghlin. Vardon sought to have the High Court compel the governor of South Australia to hold a supplementary election, however the High Court held in R v Governor of South Australia; Ex parte Vardon that it had no power to do so. Vardon then petitioned the Senate seeking to remove O'Loghlin and rather than decide the issue, the Senate referred the matter to the High Court. The High Court held in Vardon v O'Loghlin that O'Loghlin had been invalidly appointed and ordered a supplementary election. Vardon and O'Loghlin both contested the supplementary election, with Vardon winning with 54% of the vote.

<i>Re Culleton</i> (No 2) Judgement of the High Court of Australia

Re Culleton was a significant Australian court case, decided in the High Court of Australia sitting as the Court of Disputed Returns on 3 February 2017. The case was an influential decision concerning the construction of Section 44(ii) of the Constitution, which held that Rod Culleton's conviction for larceny meant that he was incapable of being chosen as a senator and the subsequent annulment of that conviction did not operate retroactively to deny the legal effect to the conviction from the time that it was recorded.

<span class="mw-page-title-main">2017–18 Australian parliamentary eligibility crisis</span> Crisis over the eligibility of members of the Parliament of Australia over citizenship

Starting in July 2017, the eligibility of several members of the Parliament of Australia was questioned. Referred to by some as a "constitutional crisis", fifteen sitting politicians were ruled ineligible by the High Court of Australia or resigned pre-emptively. The situation arose from section 44(i) of the Australian Constitution, which prohibits parliamentarians from having allegiance to a foreign power, especially citizenship. On that basis, the High Court had previously held that dual citizens are ineligible for election unless they have taken "reasonable steps" to renounce the foreign citizenship before nomination.

<i>Alley v Gillespie</i> Judgement of the High Court of Australia

Alley v Gillespie, was a significant decision of the High Court of Australia that considered the purpose and scope of s 46 of the Australian Constitution. It was the first application brought under the Common Informers Act 1975 (Cth).

Hollie Alexandra Hughes is an Australian politician who was elected as a Senator for New South Wales at the 2019 federal election. She is a member of the Liberal Party.

References

  1. 1 2 3 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 (26 January 2017). "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 (7 July 2017). "Labor launches High Court action against Turnbull MP in bid to topple government". The Sydney Morning Herald. Retrieved 11 November 2017.
  10. ↑ "Alley v Gillespie case S190/2017". High Court.
  11. ↑ Alley v Gillespie [2017] HCATrans 196 (29 September 2017).
  12. ↑ Karp, Paul (12 July 2019). "Malcolm Roberts forced to pay $6,000 to blogger over dual citizenship breach". The Guardian. Retrieved 12 July 2019.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.