BY TONY BLACKSHIELD

Section 44 of the Constitution – which provides that various categories of persons are incapable of being chosen to sit in the federal Parliament – has been the subject of extraordinary controversy since 2017. In this post, Professor Tony Blackshield provides an in-depth analysis of one of the most recent events in this unfolding saga: the decision of the High Court in Alley v Gillespie. Professor Blackshield argues that the High Court’s interpretation of the constitutional and statutory provisions in issue in this case is mistaken, and explores the broader constitutional and political issues surrounding this law and the concept of “common informer” proceedings.

Section 44 of the Constitution – now only too notorious – is one of a series (ss 43 to 47) dealing with eligibility to sit in the federal Parliament. The relationship among those sections and their statutory progeny has always been controversial. Last week’s decision in Alley v Gillespie is unlikely to settle the controversy.

The immediate controversy concerned the effect of the statutory provision substituted in 1975 for s 46 of the Constitution. According to the original effect of that section, anyone sitting in Parliament while disqualified faced a cumulative penalty, increasing by another £100 “for every day on which he so sits”. The penalty could be claimed by “any person” – and thus apparently by any number of persons, so that the same multiples of £100 could be claimed again by each new plaintiff.

However, both s 46 and s 47 were expressed to operate only “[u]ntil the Parliament otherwise provides”, and in 1975 s 46 was effectively made obsolete when the Parliament did “otherwise provide”. The drastic penalties it had envisaged were replaced by a statutory substitute, limiting the penalty to one amount of $200 for all sittings before the claim was made, plus additional amounts of $200 for each day of sitting thereafter. The penalty can now be claimed only once, and only in the High Court.

On 7 July 2017 Peter Alley, the unsuccessful candidate for the federal seat of Lyne, brought an action using the 1975 Act to challenge the successful candidate Dr David Gillespie, alleging that at the time of the election twelve months earlier Gillespie had been “incapable of being chosen” by reason of s 44(v) of the Constitution (having a potential pecuniary interest in an agreement “with the Public Service of the Commonwealth”). To raise such a challenge immediately after the election – as Alley could have done by petition under s 353 of the Commonwealth Electoral Act 1918 (Cth) – would have seemed pointless, since at that stage s 44(v) was thought to be subject to the narrow interpretation accorded to it by Barwick CJ in Re Webster. But in April 2017 Re Webster was unanimously overruled in Re Day (No 2), and Alley’s argument treats the new understanding of s 44(v) as extending to Gillespie’s indirect interest in an agreement (entered into by a tenant) with Australia Post.

I have elsewhere suggested that in any event Alley’s action was doomed to failure, since under the Australian Postal Corporation Act 1989 (Cth), Australia Post is not “the Commonwealth” and its employees are clearly not part of the Commonwealth Public Service. But as a result of last week’s decision, that question will never be reached. Instead, the Court has unanimously decided that the 1975 Act cannot be used to raise such an issue.

Reasons for judgment

The reasons for the decision are not particularly clear, in part because the leading judgment delivered by Kiefel CJ (on behalf of herself and Bell, Keane and Edelman JJ) is mainly directed to the exclusion of possible alternative arguments. In particular, the plurality sought to exclude an argument on Alley’s behalf which had sought to establish a special relationship between ss 44 and 46 of the Constitution (in part because both these sections use the words “incapable … of sitting” and s 47 does not). At least in the version of it depicted in last week’s judgment, the argument was clearly untenable and need not be further pursued. The positive reasons for the Court’s decision are more clearly explained in the concurring judgments delivered respectively by Gageler J and by Nettle and Gordon JJ, though even there sometimes elliptically.

The conclusion that the 1975 Act cannot be used to obtain a decision on questions of disqualification rests fundamentally on an assumption that s 46 itself, as it operated in its original form before 1975, could never have been used for that purpose. Essentially, the Court has held that, as the constitutional provisions stood in 1901, s 47 meant that “any question respecting … qualification” was to be determined exclusively “by the House in which the question arises”. The concurring judgments repeatedly stress the use of the words “any question”.

Nettle and Gordon JJ are especially emphatic in reading s 47 as incorporating “the common law principle of exclusive cognisance”. They explain that this principle reserves to each House “the exclusive right … to manage its own affairs without interference from the other or from outside Parliament”. The quotation is from the 2010 decision in R v Chaytor, where the same words were used (at 712) to explain the “exclusive cognisance” of the Parliament at Westminster. What is said to follow in the Australian context is that, when s 46 allowed “any person” to claim a penalty for sitting while disqualified, this could not mean that the court hearing such a claim was permitted or required to determine whether the defendant was a “person declared by this Constitution to be incapable of sitting” — since that is a question “respecting … qualification”, and under s 47 such questions “shall be determined by the House in which the question arises”.

Both s 46 and s 47 are preceded by the words “[u]ntil the Parliament otherwise provides”; and here as elsewhere the effect of those words is to trigger the legislative power of the Parliament under s 51(xxxvi) with respect to “matters in respect of which this Constitution makes provision until the Parliament otherwise provides”. As to s 47, the power thus triggered has been exercised twice: in 1902 through what is now s 353 of the Electoral Act, and in 1907 through what is now s 376 of that Act. The latter was a response to the judgment of Barton J in R v Governor for South Australia, expressing doubt as to whether the questions referred to in s 47 could be dealt with by the High Court, and therefore declining (at 1513) to answer such a question until it was “regularly raised for decision”. In Alley v Gillespie the leading judgment appears to attach great significance to Barton’s doubts, but none to the Parliament’s reaction.

In any event, it is now common ground that, first through s 353 and then through s 376, the two Houses of Parliament have surrendered their claim to “exclusive cognisance”, since the questions referred to in s 47 (including “any question respecting … qualification”) can now be decided by the High Court (as a Court of Disputed Returns), either in response to a petition under s 353 or on a referral under s 376. The effect of s 376 is explicit; the effect of s 353 was settled in Sue v Hill. Neither provision excludes the continuing power of each House under s 47 to determine such questions for itself; each of them simply offers an alternative pathway coexisting with that continuing power.

“Until the Parliament otherwise provides”

What the latest judgments insist on, however, is that the Acts of 1902 and 1907, which introduced the original versions of ss 353 and 376 respectively, were able thereby to limit the operation of s 47 because, on each occasion, the legislative power in s 51(xxxvi) was triggered by the words “[u]ntil the Parliament otherwise provides” as they appear at the beginning of s 47 itself. But the 1975 legislation is unable to have any similar effect on s 47 because, although it relies on the same words, it relies on them as they appear at the beginning of s 46. The assumption is that, although the words “[u]ntil the Parliament otherwise provides” appear in the Constitution 22 times, they appear in 22 different senses. When the legislative power in s 51(xxxvi) is triggered by the words “[u]ntil the Parliament otherwise provides” as used in s 30 of the Constitution, for example, it is triggered only in respect of the specific provisions in s 30 itself: any law dependent on s 51(xxxvi) as enlivened by the prefatory words of s 30 could amend or vary the qualifications of voters as set out in s 30, but could not directly or indirectly affect the qualifications of members as set out in s 34.

In the absence of any specific declaration of reliance on the prefatory words of s 30 (and on those words only), a law appearing to affect the operation of both ss 30 and 34 would presumably be accepted as valid because both sections are declared to operate “[u]ntil the Parliament otherwise provides”. That is, at least in such a case it would be assumed that the prefatory words in both sections are intended merely to indicate that the provisions which follow are potentially subject to amendment or repeal by validly enacted legislation. As French CJ, Kiefel and Bell JJ suggested in Cunningham v Commonwealth (at 457), the use of those words, wherever appearing, means simply that in respect of the provisions to which they are attached “the Commonwealth Parliament is free to legislate from time to time as may appear appropriate”. It is difficult to understand why, even if legislation did declare its reliance on the prefatory words of s 30, that declaration should artificially narrow the natural meaning of those prefatory words in s 30 – let alone why it should narrow the natural meaning of the same words in s 34.

 

For example, s 3 of the Constitution fixes the Governor-General’s annual salary, “until the Parliament otherwise provides”, at £10,000. That amount was increased by the Governor-General Act 1974 (Cth) — but with no specific reference to s 3 of the Constitution, and only as part of a comprehensive set of provisions relating to present and future Governors-General, their spouses and their staff. The Act as a whole is best understood as an exercise of the power in s 51(xxxix) of the Constitution (the “incidental” power); and that would seem to include the increase to vice-regal salary as well.

In short, the more natural assumption is that the words “[u]ntil the Parliament otherwise provides” have the same meaning and effect in each of the 22 contexts where they are used throughout the Constitution. As Hodges J put it in Craig Williamson Pty Ltd v Barrowcliff (at 452):

[I]t is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document.

On that basis, the fact that 22 sections of the Constitution do include those words, while the other 106 sections do not, means only that the 106 sections not containing those words can be amended or repealed only by nationwide referendum, while the 22 sections containing those words can be amended (or in most cases repealed) by validly enacted legislation – that is, by any legislation validly enacted under any head of power. In Sue v Hill, McHugh J expressed a preference for the view of the 1975 Act now unanimously chosen. However, he recognised (at 555) the possibility of an alternative view asserting:

that the Parliament has otherwise provided within the meaning of s 47 of the Constitution so that … the High Court can determine at any time the eligibility of a member of Parliament [emphasis added].

That is, although he preferred a different conclusion, he took it for granted that the 1975 Act, while “providing otherwise” for the purposes of s 46, might also affect the operation of s 47 – merely because s 47 had asserted that it might be affected in that way by validly enacted legislation.

Exclusive cognisance

The most persuasive aspect of the Court’s decision is its starting point in the postulate that, simply as a textual matter, s 47 (except as modified by validly enacted legislation) entrusts questions “respecting … qualification” exclusively to “the House in which the question arises”. The text does not say that such questions shall be determined “exclusively” by the relevant House; but it does say that “any question” of that kind “shall be determined” in that way. It is notorious that “may” can sometimes mean “shall”; but the idea that “shall” might only mean “may” is (to say the least) less probable. So far, so good.

Yet, “shall” is often used (or misused) to mean “will”, and “any” is ambiguous. When a TV show is called “Any Questions?” that does not mean “All Questions”. Moreover, as to the reference in s 47 to “any question of a disputed election”, when the members of the very first Parliament – many of them veterans of the 1897 Convention – decided in 1902 that such questions should rather be dealt with by the Court of Disputed Returns, they added the words “and not otherwise”. When that was what they meant, they knew how to say it.

The leading judgment pays close attention to what was said in 1897 in the Convention debates. The extent to which those discussions should control the operation of constitutional provisions in 2018 is, of course, controversial. But in this instance, what the debates make clear is that the questions dealt with in s 47 had not yet been resolved: the purpose of s 47 was not to resolve the problem, but simply to park it for later attention.

In any event, in a context where ss 46 and 47 must be read together in a way that makes acceptable sense of both, reliance merely on a textual inference from one of the two interrelated provisions is an insufficient guide to decision. Precisely because the provisions are interrelated, there is need to resort to considerations that bear directly on their interrelation. It is no doubt for this reason that the Court found it necessary to reinforce its textual reading of s 47 by invoking “the common law principle of exclusive cognisance”.

In an earlier historical period, that might have been a sufficient answer. Sir William Blackstone was presumably right when he found it sufficient, in his Commentaries on the Laws of England,

to observe, that the whole of the law and custom of parliament has its original from this one maxim; “that whatever matter arises concerning either house of parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere”.

Yet even Blackstone acknowledged that the precise effect of this maxim could not be “defined and ascertained by any particular stated laws”; and since he wrote, its effect has been progressively watered down.

When Nettle and Gordon JJ explained the effect of “exclusive cognisance” by invoking the decision of the Supreme Court of the United Kingdom in R v Chaytor, they were treading on dangerous ground. The question to be determined in that case was whether members of Parliament could be prosecuted in an ordinary criminal court on charges relating to fraudulent claims for parliamentary expenses and allowances, and the Supreme Court held that they could be. The defendants had sought to infer from the concept of “exclusive cognisance” a degree of absolute protection equivalent to that accorded to participation in parliamentary debates, but were singularly unsuccessful.

Ironically, two days after the decision in Alley v Gillespie, the High Court effectively took a similarly limited view of “exclusive cognisance” by refusing leave to appeal from the decision of the NSW Court of Criminal Appeal in Obeid v The Queen, denying that the “exclusive cognisance” of the NSW Parliament could protect the former NSW Minister Eddie Obeid either against investigation by the Independent Commission Against Corruption, or against a criminal prosecution for misconduct in public office. Both for Chaytor and for Obeid, the analogy between investigation of criminal guilt, and investigation of whether a person is sitting in Parliament though “incapable of being chosen”, is obviously not exact. Yet nor is it entirely vacuous.

In R v Chaytor (at 712) parliamentary privilege was confined primarily to Parliament’s “core or essential business”, while “exclusive cognisance” was confined to areas “where the courts have ruled” that the issues should be resolved by Parliament “rather than determined judicially” – thus assigning the ultimate drawing of boundaries not to Parliament, but to the courts. The Supreme Court emphasised that exclusive cognisance “can be waived or relinquished by Parliament” and that its scope has “very significantly changed, in part as a result of primary legislation”. It is “always open to Parliament by legislation to provide for the courts to encroach” on that scope; and even where a statute “does not specifically address” an encroachment, it is “necessary as a matter of statutory interpretation to decide a number of overlapping questions” (at 712-13).

In short, the question whether an Act should be understood “to provide for the courts to encroach on … exclusive cognisance” cannot be answered simply by preemptive assertion of “exclusive cognisance”, but only by attention to “a number of overlapping questions”.

Of course, an exposition of what is meant by “exclusive cognisance” in the United Kingdom in 2010 cannot control its meaning in Australia in 1897 or in 1901 (though it may not be wholly irrelevant, either). In any event, the scope of the principle had already been significantly narrowed before 1897. Specifically, as Gaudron J pointed out in Sue v Hill (at 508-09), the traditional claim of the House of Commons to “exclusive authority” to determine its members’ qualifications was abandoned by the Parliamentary Elections Act 1868 (UK), which provided – three decades before the text of the Australian Constitution was settled – that such questions would thenceforth be determined by petitions to “Her Majesty’s Superior Courts at Common Law”.

The leading judgment in Alley v Gillespie referred to some aspects of the historical summary given by Gaudron J in Sue v Hill, but not to the Parliamentary Elections Act 1868. Instead, having noted “the long-standing tradition” by which the House of Commons “reserved to itself” the questions of disputed elections and qualifications of members, the judgment asserted that it was “not necessary” to consider “what changes were made to those arrangements … in the period leading up to Federation” – because it was not necessary, in interpreting ss 46 and 47 of the Constitution, to refer to the adoption by s 49 of the powers and privileges of the House of Commons “at the establishment of the Commonwealth”. But dismissal of the nineteenth century history in its relevance to the content of s 49 is by no means a sufficient reason to dismiss its relevance to an understanding of the relationship between ss 46 and 47. On the contrary, the intentions of the Australian framers as to that relationship must almost certainly have depended on their understanding of the relationship between courts and Parliament in Britain at that time.

Legislative intention

Perhaps the most serious objection to the decision in Alley v Gillespie is that it defeats the expressed purpose for which the 1975 legislation was enacted. The leading judgment asserts (correctly) that “the principal purpose” of the legislation was to substitute, for the exorbitant and multiple penalties envisaged by s 46, a single and more modest penalty. Yet if that had been the only purpose, it could have been achieved more readily by simply abolishing the liability to any pecuniary penalty at all. The Attorney-General of the time, Kep Enderby, explained in his second reading speech that although it was “not the intention of the Government to encourage” such proceedings, “it feels that this procedure should be kept open”. “The purpose of the provision is to allow alleged disqualifications to be independently tested.” For that reason, although “in normal circumstances it would seem to the Government that the House itself would refer the question to the High Court and have the matter properly judicially determined”, it had been decided to “preserve” the procedure in s 46, “while modifying its application”.

Later, at the end of the ensuing debate, Enderby explained the point further. While emphasising that possible disqualifications would usually with undoubted propriety be referred for judicial decision, he stressed that the Government was “anxious to avoid” the impression that such issues were manipulated for partisan advantage, in a way which might be seen as “not very different from a conspiracy”:

The Government took the view that there must be preserved an independent right to challenge a person’s right to sit in this House … [T]he Government thought it better not to abolish the right altogether but to upgrade it or modernise it so that the citizen … could bring an action where he saw the politicians not doing so … The Government believes it is a healthy measure to allow a citizen outside Parliament … to take action if he thinks that the politicians … have not done the right thing by him. He should not be enriched … But he should be entitled to put the matter to the test in the court.

In Alley v Gillespie, the leading judgment acknowledged these latter explanations, but dismissed them as irrelevant: they were merely “remarks … at the conclusion of debate”, which “do not form any part of the materials which may be used as an aid to construction”. The judgment did not, however, refer to the earlier comments on the need for disqualifications to be “independently tested”, though those comments did form part of the second reading speech and were therefore “part of the materials which may be used as an aid to construction” under s 15AB(2)(f) of the Acts Interpretation Act 1901 (Cth). And the judgment certainly did not refer to s 15AA of the Act, preferring “the interpretation that would best achieve the purpose or object of the Act … to each other interpretation”.

By contrast, Gageler J did acknowledge that the Court’s decision would defeat “the central concern identified” in the second reading speech, but concluded that Enderby had based his speech “on a considered view of the constitutional structure which the High Court now unanimously rejects”. The leading judgment, too, acknowledged that the speech revealed “something of an assumption” that proceedings under the Act could elicit a decision on the question of disqualification. But that assumption, too, was dismissed: “Assumptions of this kind are not useful to determine questions of the construction of the Constitution.”

Yet if Enderby’s remarks rested on a mistaken “assumption”, that assumption appears to have been extraordinarily widespread. Twenty years earlier, in the House of Commons, the Home Secretary, Gwilym Lloyd-George, had given the second reading speech for the first attempt to consolidate and modernize the British law on the subject: the House of Commons Disqualification Act 1955 (UK). The Act gave “any member of the public” the right to apply to the Judicial Committee of the Privy Council for a declaration that a member was disqualified; and Lloyd-George explained that this was important because it:

enables any member of the public to challenge the title of a person claiming to be a Member of this House, and to do so by public proceedings in the courts. If the jurisdiction … had been left exclusively to the House of Commons itself, it would have been possible for a Member, who was known to be disqualified, to continue to sit as a result of a conspiracy of silence on the part of his fellow Members. I do not think that that is likely to happen today, but that is hardly a sufficient reason for making it possible.

He did foreshadow an amendment to exclude any possibility of “conflict between this House and the Judicial Committee”, and this reflects a similar concern now expressed by Gageler J. But it also makes it clear that the purpose of allowing a suit by “any member of the public” was to ensure that there could be a judicial determination of the substantive issue involved.

Indeed, as Gaudron J had partly demonstrated in Sue v Hill, a similar assumption had been made in British legislation dating back to s 29 of the Succession to the Crown Act 1707. A typical example, dating from 1782, is Clerke’s Act – ironically the original precursor of the Australian s 44(v). That Act provided that any person directly or indirectly entering into any contract “made for the public service” was  “incapable of being elected, or of sitting or voting”, and “shall forfeit the Sum of five hundred Pounds for every Day in which he shall sit or vote in the said House, to any Person or Persons who shall sue for the same in any of His Majesty’s Courts at Westminster”. There appears to be no room for doubt that such provisions were intended to ensure that the person who sued for the penalty would thereby secure an authoritative judicial decision on the question of disqualification. Indeed, the short title typically assigned to such statutes by the Short Titles Act 1896 (UK) was “House of Commons (Disqualification) Act”.

Historical considerations

Less formally, such statutes were often referred to as “common informer” statutes, since they were enforceable at the instance of “any person” suing for a penalty. They were therefore assimilated to even older statutes relying on that means of enforcement. Perhaps unfortunately, Enderby or his advisers chose to use the term “common informer” in the title of the 1975 legislation, calling it the Common Informers (Parliamentary Disqualifications) Act, and thereby exposing it to the kind of disdain and outright disapproval with which “common informers” were traditionally viewed. In 1644, for example, Sir Edward Coke had included in a catalogue of the “viperous vermin” whom he condemned as besmirching the image of the law:

the Vexatious Informer… who under the reverend Mantle of Law and Justice, instituted for protection of the innocent, and the good of the Common-wealth, did vex and depauperise the Subject… for malice or private ends, and never for love of Justice.

The leading judgment in Alley v Gillespie recalls that traditional history without ever pausing to explore the deep division running through the last century between divergent High Court reactions to “common informer” provisions, with some judges routinely accepting the traditional pejoratives and some seeking to resist or refute them. Reactions of the latter kind extend (for example) from that of Isaacs J in the Coal Vend Case at 747 (adopting the view of the Privy Council in Huntington v Attrill that an action brought by a common informer “is regarded as an actio popularis pursued, not in his individual interest, but in the interest of the whole community”) to that of Kirby J in Rich v Australian Securities and Investments Commission at 168 (insisting that the history of “prosecutions by common informers” should not divert us from the primary need to interpret “Australian federal statute law” in a way that achieves “the important objectives of the federal parliament”).

In Sue v Hill, Gaudron J was led by “historical considerations” to conclude that it was “impossible” to read s 47 as preserving the Parliament’s “exclusive authority” – especially when “the practice … developed in England by the late nineteenth century” was compared with “the clear words of s 46”. In Alley v Gillespie, only Gageler J acknowledges her conclusion.

Gageler J dismisses such an approach for three reasons. The most powerful, of course, is simply that it “departs from the language of s 47”. Yet this is question-begging: like all of the judgments in Alley v Gillespie, it first assumes that s 47 enshrines “exclusive cognisance”, and then assumes that s 46 must be read narrowly in order to accommodate that assumption. Gageler J’s corollary reason is question-begging as well: he insists that Gaudron J “treats s 46 as addressed to the topic of authority to decide, when that section is not”. Yet whether s 46 is or is not addressed to that topic is precisely what has to be decided. Gaudron J did not simply assume an a priori affirmative answer; she explained that she was giving that answer because:

constitutional provisions are to be read broadly and according to their terms: more significantly …, they are not to be read as subject to limitations which their terms do not require.

The final objection, relied on both by Gageler J and by Nettle and Gordon JJ, is that, if it were true that a court could decide on disqualifications under s 46 but also that the relevant House can still do so under s 47, there might be “contradictory yet equally authoritative answers to the same constitutional question”. The result would be “legal uncertainty and institutional disharmony”. Yet the same potential for conflicting responses is created by the decision in Sue v Hill that such questions can be resolved in response to petitions under s 353 of the Electoral Act. When that was suggested in Sue v Hill as an argument against the majority view, Gleeson CJ, Gummow and Hayne JJ had no hesitation (at 480) in rejecting the suggestion:

[Q]uestions respecting the exercise by the chambers of the Parliament of their constitutional authority bestowed by s 47 of the Constitution are not to be approached by reference to some distorting possibility.

“Declared by the Constitution”

Throughout the judgments there are scattered observations appearing to contrast the word “declared” (as originally used in s 46 and now in its statutory substitute) with the word “determined” in s 47. The intention appears to be to suggest that while the Houses of Parliament are authorised by s 47 to make a “determination” of whether a particular member or senator was “incapable of being chosen”, the courts referred to in s 46 (now limited by the 1975 Act to the High Court itself) are given no such authority. Accordingly, their award of a penalty must be based on what has already been “declared”.

In fact, however, the significance of the word “declared” is precisely the opposite.

Both s 46 and its statutory substitute refer to “any person [who has been] declared … to be incapable of sitting”. The words in square brackets, which one intuitively assumes to be necessarily implied, are in the perfect tense (or rather in what the linguist M.A.K. Halliday calls “past in present”). Superficially they might therefore seem to suggest that the court is asked not to reach a legal conclusion, but simply to attach a penalty to a legal conclusion already arrived at elsewhere.

Yet, in the first place, if the Constitution is conceived of as constantly speaking, it may be that the words should be understood as referring not to what “has been” declared by the Constitution, but to what “is” thereby declared. More importantly, what has been (or is) declared by the Constitution is not that David Gillespie or Rodney Culleton is or is not “incapable of sitting”. What has been (or is) declared is that there is a class of persons (or more precisely, under s 44, five classes of persons) who are “incapable of sitting”. To invoke that declaration in the case of an individual person is necessarily to require a decision as to whether or not that person is a member of the relevant class, and thus necessarily to require the Court to interpret the constitutional declaration and determine whether it applies to that person.

In short, the real significance of the words “declared by this Constitution” (which occur in s 46 but not in s 47) is that they raise the question of what it is that the Constitution has “declared” – thus not only directing attention to the text of s 44, but necessarily requiring an interpretation of that text. Accordingly, the use of these words in s 46, and their repetition in the 1975 Act, necessarily means that both s 46 itself and its statutory substitute are laws of the kind referred to in s 76(i) of the Constitution, and thus within High Court jurisdiction under s 30(a) of the Judiciary Act 1903 (Cth): they give rise to matters “arising under the Constitution” and “involving its interpretation”. What was said in Sue v Hill (at 472-73) about the petition procedure under s 353 of the Electoral Act is equally applicable to the 1975 Act, and for that matter to s 46 of the Constitution itself:

The incapacity specified in s 44 is imposed by the Constitution itself. However, that is not to deny that a dispute as to the engagement of the constitutional provision may be entertained [by a Court] … [Section 353] is a law for the judicial determination of a matter arising under the Constitution or involving its interpretation, within the meaning of s 76(i) of the Constitution.

Harmonious construction

The only attempt to ensure coherence not only in the operation of ss 46 and 47 of the Constitution, but also in their interaction with ss 76 and 77, is that of Gageler J. He agrees that both s 353 of the Electoral Act and s 5 of the 1975 Act confer jurisdiction on the High Court under s 76 (i) and (ii). He insists, however, that in the former case the conferral of jurisdiction establishes a further exception to the Houses’ “exclusive cognisance” under s 47, whereas in the latter case the conferral of jurisdiction is “circumscribed to the extent of the continuing exclusive operation of s 47 of the Constitution”. Yet the only reason given for this differentiation is that the enactments in 1902 and 1907 “otherwise provided for the purpose of s 47”, whereas the enactment in 1975 has “otherwise provided” only for the purpose of s 46.

Yet, even if that reason for differentiation be accepted, it is at least clear that the 1975 Act has “otherwise provided” for the purpose of s 46. And if, as might reasonably be assumed, it is the presence of the words “declared by [this] Constitution” that necessarily requires the Court to interpret the constitutional declaration and determine whether it applies in a particular case, it is important that those words occur not only in the 1975 Act but in s 46 itself. On that reading it is s 46 that creates a procedure through which questions of disqualification can be determined by a Court, and the variation of that procedure by the 1975 Act, even if it is thought to have “otherwise provided” only for the purposes of s 46, should be given the same effect.

It would, of course, be wrong to approach the problem by first deciding that the power to deal with questions of disqualification is entrusted to judicial determination by s 46 (and hence by the 1975 Act), and then concluding that s 47 must be read down accordingly. But it may seem equally wrong to proceed by first deciding that s 47 establishes a rigid initial premise of “exclusive cognisance”, and then concluding that s 46 and its statutory substitute must be read down accordingly. The original unadulterated texts of ss 46 and 47 stand side by side in the Constitution, and the problem is one of how both provisions should best be construed together.

Judicial power

Gageler J contends that, even if we conclude that s 46 and its statutory substitute have “merely established machinery for enforcing by penalties” a decision made elsewhere, that does not rob them altogether of “meaningful practical operation”. But the automatic imposition of a penalty for reasons already determined elsewhere does raise uncomfortable questions. The case of Palling v Corfield, decided during the Vietnam War, makes it clear that a statutory provision can validly reduce a court to a mere rubber stamp, automatically imposing a predetermined sentence for a predetermined offence. But the case remains unsatisfactory.

The case involved a challenge to the procedure for sentencing young men for refusing to register for national service. The procedure was challenged partly on the ground of objection to automatic imposition of a predetermined mandatory sentence, but primarily on the ground that the procedure was not automatic, but was conditioned on preliminary negotiations which the prosecution might choose to request.

The immediate problem was whether the role thus assigned to the prosecution was a “usurpation” of judicial power; and much of what was said by the Court in rejecting that possibility would appear to support the decision in Alley v Gillespie. Yet what the case leaves unresolved (at least for other contexts) is the nature of the function left to the court after what Barwick CJ (at 59) referred to as the “determinative … formation” of an opinion “by some person or body other than a court”. The question is not so much whether such an opinion “usurps” judicial power, but whether the function then left to the court can itself still be regarded as an exercise of judicial power. That power, as Kitto J had put it ten months earlier in the Tasmanian Breweries Case, will typically involve

an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined (at 374).

The more that process is curtailed, the greater the departure from the normal understanding of what is meant by “judicial power”. In the case of a power which can be exercised only after and because the “application of the law as determined to the facts as determined” has already been conclusively effected by some other body, it is difficult to see what element of judicial power is left.

Representative and responsible government

Recent High Court decisions have spoken strongly of the constitutional commitment to representative and responsible government – not only as a foundation for freedom of political communication, but also as a key to the flood of decisions on s 44 of the Constitution itself. In particular, in Re Canavan, the Court has insisted that, in principle and so far as possible, every Australian citizen should have the right to seek participation in Parliament. Yet an equal corollary (again in principle and so far as possible) might be that every Australian citizen should have the right to challenge the qualifications of those who seek such participation.

The second reading speeches of Gwilym Lloyd-George in 1955, and Kep Enderby twenty years later, were reflections of that belief. In part, both speeches treated it as simply a matter of avoiding what might be unfavourable public impressions – conceding that even if the responsibility were left solely to the Parliament, it would of course be discharged responsibly. But in today’s era of unrepresentative and irresponsible government, that can no longer be said with confidence. The need for an avenue through which individual citizens can test such issues may be more important than ever.

Whether the Court’s denial of such an avenue has in fact undermined the system of representative and responsible government may well be open to debate. As Gageler J rightly points out in his judgment, the British reliance on “common informer” provisions to deal with such issues lasted for 250 years – from 1707 until their final repeal in 1957 – and in all that time, there does not appear to have ever been a single instance of such an action being brought. Equally, there seems never to have been such an action under s 46 of the Constitution in the 75 years until its replacement in 1975. And, apart from an inartistic attempt by Rodney Culleton’s former colleague Bruce Bell, coming to an inglorious end only three weeks before the Alley decision, there appears to have been no such action in the years since 1975. Accordingly, even if the 1975 Act had been construed as allowing citizens to test the qualifications of those claiming to represent them in Parliament, the effect might have been merely symbolic.

Yet whether last week’s decision achieves the most fitting adjustment between ss 46 and 47 when the question is approached in the light of representative and responsible government may also be open to debate.

 

Tony Blackshield is an Emeritus Professor of Law at Macquarie University, a Visiting Professorial Fellow at the University of New South Wales, and an Honorary Professor of the Indian Law Institute in New Delhi.

Suggested citation:  Tony Blackshield, ‘”Exclusive Cognisance” and Cognitive Dissonance: Alley v Gillespie’ on AUSPUBLAW (3 April 2018) <https://auspublaw.org/2018/04/alley-v-gillespie/>