BY GABRIELLE APPLEBY

In those final days of August, when we watched, once again, an Australian political party overthrow the leader who led it to its last electoral victory, serious questions were raised about the eligibility of the protagonist, Mr Peter Dutton MP, to even hold his seat as an MP. The purpose of this post is not to return to the substantive legal questions around Mr Dutton’s eligibility, or whether, if he were found to be ineligible, this would give rise to a cause of action to challenge his decisions.

Rather, the purpose of my post is to move from the substantive to the procedural. I will outline the current process for determining questions of eligibility, and argue that there are serious flaws with it. While moves have been made towards depoliticisation of the process, the resolution of qualification disputes remains a highly – and inappropriately – partisan-influenced issue. Two key reforms are needed: the removal of the Houses’ remaining concurrent jurisdiction to determine eligibility of parliamentarians, and the introduction of a more general right for a petitioner to bring a challenge in the Court of Disputed Returns, subject to the Court’s leave.

I finish the post by referring to the role that the Solicitor-General was asked to play in resolving the dispute by then Prime Minister Malcolm Turnbull. I will explain that seeking definitive resolution from the Solicitor-General misunderstands the role of the office, and gives rise to suspicions that it is being deployed for basic partisan objectives.

Background

As has been well documented in an earlier post from Professor Anne Twomey, the cause for concern over Mr Dutton’s eligibility lay in the interest he held as a beneficiary of a discretionary trust in two childcare centres in his home state of Queensland. This gave rise to serious legal questions as to whether he was ineligible under s 44(v) of the Constitution, for holding a pecuniary interest in an agreement with the Public Service of the Commonwealth, due to the various benefit and subsidy payments that the centres received from the federal government.

The question over Mr Dutton’s eligibility had been known by Mr Dutton himself at least as early as December last year, when he requested legal advice from Mr Guy Reynolds SC on the question. He received, albeit in brief and rather perfunctory form, an advice from Mr Reynolds that he was in the clear.

The Labor Party then itself received advice on Mr Dutton’s eligibility in April this year. This was given by Mr Brett Walker SC and James Mack. This advice, given in far greater detail and relating to an amended version of the scheme, came to the conclusion that the better view was that Mr Dutton was not in the clear.

So, before the issue leached into the newspapers in the lead up to the final leadership spill, there were dueling advices, although neither had been made public, and it is unclear as to whether Mr Dutton’s advice had been provided to the Liberal Party.

From doubt to ineligibility

Determinations of eligibility under s 44 of the Constitution can be made by two bodies: first, by the House in which the member is sitting, or second, by the High Court sitting as the Court of Disputed Returns (although the High Court may remit the matter to the Federal Court), which may obtain jurisdiction through a petition brought by a relevant elector within 40 days of the return of the writs, or through a referral by the relevant House.

Under the Constitution, the jurisdiction to determine these matters is left with the Parliament pursuant to s 47. However, the Court may ‘otherwise provide’, and it has: s 376 of the Commonwealth Electoral Act allows for a referral to be made by the House and petitions can be brought challenging qualifications as part of disputing an election or return under ss 353 and 355 of the Commonwealth Electoral Act. The referral to the Court of these matters, and taking them out of the House’s hands, was anticipated by the framers of the Constitution. It was generally considered desirable that these matters be taken out of partisan influence and turned over to impartial judicial arbiters. (A third avenue for challenging eligibility of parliamentarians in the Court, through a common informer action, was dismissed by the High Court in Alley v Gillespie (2018). Whether this case precludes other collateral challenges to eligibility, for instance through judicial review challenges of the decisions made by Ministers not eligible to be in Parliament and therefore in breach of s 64 of the Constitution has not been decided by the Court. Although comments by Gageler J, and Nettle and Gordon JJ, around the need for certainty, institutional disharmony and the undesirability of dueling jurisdictions may suggest that this potential would be closed down.)

The High Court in Sue v Hill (1999) held that the provision in the Commonwealth Electoral Act for the Court to take jurisdiction in these circumstances does not remove the House’s jurisdiction, and thus they may exist concurrently. This itself raises awkward questions of conflict and possibly contempt that might arise if Parliament were to attempt to resolve a matter after a petition has already been brought in the Court. There is some indication as to how this potential institutional conflict might be resolved in the scheme of the Electoral Act itself: ss 368 and 381 of the Act provide, where the High Court is asked to determine a question of disqualification either on a petition or a referral of one of the Houses, the decision of the Court ‘shall be final and conclusive and without appeal, and shall not be questioned in any way.’ This might indicate that the Parliament, in otherwise providing under s 47 of the Constitution, accepts that where a matter is brought before the Court of Disputed Returns, it will be the Court’s decision that has final force and effect.

In Re Day [No 2] (2017), Kiefel CJ, Bell and Edelmann JJ have described s 44 as having a special status, one that is “protective of matters which are fundamental to the Constitution, namely representative and responsible government in a democracy.” In such circumstances, there is a particular need to remove jurisdiction from partisan influences. As Justice Gageler has argued, where representative and responsible government are threatened, the courts’ role in oversight and enforcement becomes of particular importance. Following this reasoning, it would seem highly undesirable to return to the time when the House decided for itself these questions.

Further, as a number of international human rights decisions have found, the engagement by political institutions in judicial or quasi-judicial roles, including the determination of electoral matters such as qualification to run for public office, raises serious fair trial concerns for those involved in the process. Such determinations lack many of the procedural safeguards of a court. Indeed, this line of jurisprudence has given precedence to human rights concerns over separation of powers imperatives that directed such matters be determined by the legislatures themselves.

However, as recently as 1999, the House of Representatives has exercised its own jurisdiction (in relation to an interest held by Warren Entsch). Such a recent example provides us with at least some concern for the Houses’ ongoing role in the determination of questions around qualification.

These three issues – the fair trial rights of individuals involved in these disputes, the ongoing partisan influence of the Houses’ jurisdiction, the possibility of creating a conflict with the jurisdiction of the Court of Disputed Returns – give rise to serious questions as to whether the procedure is in need of reform, and, more particularly, whether the Houses’ continuing and concurrent jurisdiction to determine these questions should be removed so as to leave the Court of Disputed Returns as the only body with competence to determine these questions.

However, outside of the window to bring a petition within 40 days of the return of the writs, this would still leave the situation at the whim of the House, as in this period, the Court of Disputed Returns’ jurisdiction is engaged on its referral. This appears to be a wholly inadequate safeguard for ensuing the enforcement of s 44. The intention behind limiting the period for bringing petitions to the Court was to bring some certainty to the composition of the House. However, outside of that period, the current system then leaves questions over eligibility within the partisan influence of the House.

With my colleagues Professor Rosalind Dixon and Lachlan Peake, I have submitted that a new procedure should be instigated. The imperative for certainty that limiting a petitioner’s window should be balanced against another rule of law imperative: the need for all persons to be subject to the law. Under the current system, the question of whether a parliamentarian will be subject to a referral is very likely to be influenced by partisan considerations, thus the rule of law is subject to partisan considerations in its enforcement.

Indeed, we saw this manifest in the case of Mr Dutton. Despite the government eventually acknowledging the seriousness of the doubts over Mr Dutton’s eligibility, as demonstrated by the Prime Minister’s eventual referral of the question to the Solicitor-General for advice, government members refused to join a motion to refer Mr Dutton to the Court of Disputed Returns for final resolution of the issue. The motion was lost 69-68.

If we take both the need for certainty and the imperative that enforcement of the law should be removed from partisan considerations seriously, there is clearly a need for reform of the current system. Dixon, Peake and I have suggested amendment of s 355 of the Commonwealth Electoral Act, to allow for petitions to be brought outside the period of 40 days after the return of the writs, but only in circumstances where the Court has itself given leave. The provision should direct the Court that this discretion should be exercised only where it would otherwise bring the Parliament into disrepute. This, of course, is likely to arise whenever a serious legal doubt arises as to the eligibility of a member.

Enter the Solicitor-General

During a heated question time in the lead-up to the party-room meeting that would spell his demise, Prime Minister Turnbull engaged in a raucous debate with the Opposition, during which he appeared to concede the need for the question of Mr Dutton’s eligibility to be referred to the Solicitor-General for his opinion. At a press conference that afternoon, Turnbull stated that he wanted to delay the party room meeting until after that advice had been received. He said:

This issue of eligibility is critically important. You can imagine the consequences of having a Prime Minister whose actions and decisions are questionable because of the issue of eligibility.

At this stage in the debate, however, it was unclear what the Solicitor-General’s opinion would add. It would not resolve the dispute definitively: only a resolution of the House or a decision of the Court of Disputed Returns could do that.

It is said, and indeed I have said it in my book on the Solicitor-General, that the Solicitor-General’s advice is treated as ‘final’ within government. This is different, however, from saying that it is determinative in the sense that a Court’s decision is determinative. This is for a number of reasons.

The Solicitor-General’s advice is treated as final within government as a matter of general practice because of the desirability for the government of having an officer whose opinion resolves disputes about the correct legal position that arise from time to time across government (for example between departments or statutory bodies). In this sense, the Solicitor-General is used as a type of internal government ‘arbiter’, and indeed in a number of jurisdictions there have been Cabinet directions to this effect. In some jurisdictions briefing protocols for the Solicitor-General have been developed that direct government to seek the Solicitor-General’s advice where there is conflicting legal advice.

My research revealed that the general practice of government is to treat the Solicitor-General’s decisions as determinative of legal issues for the government. Former Tasmanian Solicitor-General William Bale indicated that following the Solicitor-General’s advice in Australia was a ‘constitutional given’ or a ‘constitutional convention’. Former Queensland Attorney-General Rodney Welford said that the opinions of the Solicitor-General were ‘holy writ’ and ‘utterly unquestioned’.

However, that doesn’t mean that even within government this convention is always followed. I detail in my book a number of occasions where a ‘second opinion’ was sought from other counsel on the Solicitor-General’s opinion. Indeed both the current Attorney-General, Christian Porter, and former Attorney-General/current Shadow Attorney-General Mark Dreyfus QC told me that they would generally treat the Solicitor-General’s advice as final; but that that a second opinion might be sought over certain issues. Porter explained:

[I]f you get three top silks giving advice on an issue, there will sometimes be substantive differences in the nature of that advice. If that weren’t the case, there would be no such thing as litigation.

Dreyfus’ position was similar, he said he still might seek another opinion on particularly important political issues:

Or two. Or three. Perhaps I might feel I needed two to outweigh the Solicitor-General’s advice, and I would go and get very senior advice. And I’ve done that. And I would do it again. Because, despite the fact that I say that the Solicitor-General has got higher status, she or he is still just a barrister. And, most difficult legal problems are capable of another outcome. I mean, if I’ve learnt [anything] in my legal career, I’ve learnt that.

In the case of Mr Dutton, the Solicitor-General’s opinion was being sought on exactly the type of legal problem that Porter and Dreyfus are referring to: a difficult one over which there was likelihood of disagreement between barristers. Indeed, the night before the Solicitor-General ultimately delivered his own opinion, Mr Dutton delivered a further opinion that supported his position by the former Commonwealth Solicitor-General David Bennett QC.

In such a case, it is highly unlikely for a Solicitor-General to issue a definitive position on the law. Indeed, to do so, I have argued, would be in breach of his or her obligations to provide the government with a true assessment of the legal position. Where the legal position is genuinely unclear – such as in the case of Mr Dutton, the Solicitor-General must indicate his or her assessment of the better legal position, but also an indicate the level of ambiguity in that that position. As former Queensland Solicitor-General Walter Sofronoff, now President of the Court of Appeal, told me:

Sometimes, more rarely than you would think, it is not possible to give definitive advice, it is only possible to give advice, that this would be the more probable outcome … That the legislation, for example, could be read this way or that way, there are factors going each way, but in my view, this particular way is the preferable way of looking at it because the legal logic is more compelling … in that direction.

So, given the status of the Solicitor-General’s advice, and the high likelihood that he would not resolve the issue definitively one way or the other (which, when the advice was delivered, he did not), why did Turnbull insist on seeking it before the party room meeting? As I have previously documented in my book, it is not unprecedented for the government of the day to use the Solicitor-General’s opinions for political purposes. This often occurs when the government attempts to rely upon the Solicitor-General’s status, independence and integrity to deflect political and public attacks, or concerns, for instance, around the legality of their actions. Sometimes in these cases, such as when the Solicitor-General was asked to advise in relation to the government’s citizenship stripping proposal, this advice is referred to but is not released publicly. This is particularly problematic because the parliament and the public are expected to rely upon a reassurance around the Solicitor-General’s advice, without themselves seeing it, and the terms in which it is framed. Other times, although more rarely, the government will release the advice.

In the case of Mr Dutton and Mr Turnbull, the Solicitor-General’s advice was released almost immediately. It was deployed by Turnbull not in public and parliamentary debate to advance the government’s agenda, but as a tool in an internal party dispute. That is not to say that it didn’t fall within the Solicitor-General’s functions to provide the advice, and nor is it to question the bona fides of the Solicitor-General in doing so; but it is to question the legitimacy, although not the legality, of the intended use of that advice.

 

Dr Gabrielle Appleby is an Associate Professor at UNSW and the Co-Director of The Judiciary Project, Gilbert + Tobin Centre of Public Law. Her book, The Role of the Solicitor-General: Negotiating Law, Politics and the Public Interest was published with Hart in 2016.

Suggested citation:  Gabrielle Appleby, ‘The Parliament, the Court of Disputed Returns, and the Solicitor-General’ on AUSPUBLAW (12  September 2018) <https://auspublaw.org/2018/09/the-parliament-the-court-of-disputed-returns-and-the-solicitor-general/>.