Another High Court disaster

The High Court has done a great job in messing up Australian democracy with its absurdly literalistic reading of the Constitutional provisions on dual citizenship. It’s now added another layer of disaster with its refusal to hear Labor’s attempt to have Liberal MP David Gillespie disqualified on the basis that he rented space to an Australia Post outlet.

Of course, this case is utterly lacking in merit. Had the High Court heard it, and thrown it out without retiring for consideration, I’d be cheering them on.

In fact, however, they refused to hear the case because Labor couldn’t get the Parliament to refer the case, relying instead on a “common informer”.

So, we are now in the position where a Parliamentary majority can move to disqualify anyone on the opposing side, and the High Court will assess whether they have breached any of the byzantine rules they have constructed, rules that might potentially disqualify anyone who has ever taken money from the government, or had foreign born parents, or is Jewish, or can’t document every aspect of their ancestry back to the Paelolithic era. But if there is no such majority, it seems that there is no recourse.

What’s worse is my total confidence that there will be lots of comments explaining how the High Court has protected us from the risk that someone might serve in Parliament despite getting their paperwork wrong.

16 thoughts on “Another High Court disaster

  1. Nah. If the High Court had heard this case it would have opened the door for every crackpot, paranoiac and malcontent to challenge anybody and everybody. The parliament in contrast will act with restraint. If a parliamentary majority acts opportunistically and refers their opponents they can be sure that when the wheel turns and they are the minority the favour will be returned, with interest. The threat of mutually assured destruction will keep everybody in line.
    You will notice that despite much bluster from the likes of the Belgian waffle the government has not forced the issue with the two Labor members who look very shaky indeed on citizenship.

    And needless to say a fairly relevant consideration in this case is whether the High Court got this decision right in law. Has any constitutional lawyer said they got it wrong?

  2. This ruling neuters the common informers provision. It is now a potential after the fact punishment, unless they are otherwise punished. My (non-lawyer) interpretation of what it was designed for is so that someone not ruled on by Parliament or in a case referred by Parliament to the High Court would be under serious financial pressure (The $200 was originally 100 pounds, a quarter of the original annual Commonwealth parliamentary salary but was eroded by inflation (while a parliamentary base salary is now around 250 times the 1901 currency amount) and the 1 year statute of limitations imposed in 1975).

    The High Court`s rulings on dual citizenship have not been “absurdly legalistic”. The Constitution clearly and unambiguously says no to people with foreign citizenships being members of the Commonwealth Parliament. To rule significantly contrary to that would be changing the Constitution without a referendum, which would be wrong. The High court has even made lenient noises in the direction of people unable to renounce their foreign citizenship, people that the framers of the Constitution may well have intended to keep out.

    The Constitution should, in my opinion, be amended by referendum to allow dual citizens to sit in Parliament. But absent a referendum result in favour of such a change, it should be enforced.

  3. Very provocative John.

    I thought Alley would win as he was represented by Bret Walker SC. I had underestimated section 47 which mandates the parliament to make the “anterior decision” prior to referral to the High Court for determining eligibility under section 44.
    Parliament intended in April 1975 to enable the Alley-type litigation but apparently failed to effectively legislate to do so.
    The High Court has invited the referral in its judgement.
    Personally I can see conflicts where an MP eg. owns or has an interest in an AustPost outlet. Looking at the Act setting up AustPost it effectively is run by the government of the day which can determine issues like postal fees and other fiscal matters. Gillespie is a Minister.
    Other parliamentarians have close family members directly or indirectly contracting with the
    Commonwealth which should be a no no. Remember the dodgy deal the Coalition had with Bob Day for him to secure effectively a debt to him to be paid by the Commonwealth. Current sitting members and senators were party to this which appears to have secured his votes until the High Court binned him. Corrupting parliament ?
    As an example of the need for section 44 look at the possible criminal corruption in Queensland “Liberal” councils in accepting huge developers’ donations for no apparent legitimate reasons.

  4. Their ruling on why the liberal candidate could not be in the senate thus allowing Jim Molan in was Trumpian in logic.
    this is no better. Surely the Court of Disputed Returns can determine whether a claim has merit or not and so should hear the complaint or not.

  5. Tom the first and best :

    The Constitution should, in my opinion, be amended by referendum to allow dual citizens to sit in Parliament. But absent a referendum result in favour of such a change, it should be enforced.

    I don’t know why they don’t make it simple: if you’re eligible to vote, you should be eligible to stand for office.

  6. The latest decisions have been consistent with the approach the High Court has taken since its establishment, so it’s unsurprising that Australian constitutional lawyers endorse it.

    Taken as a whole, i’d say the decisions of the High Court demonstrate the total wrongness of its approach. Among the worst examples: the bank nationalisation case, the subsequent wriggling on Section 92 and the ban on state fuel taxes.

    That’s true of both constitutional and statute cases, though the Parliament killed off the worst excesses of Barwickian literalism with changes to the Acts Interpretation Act in the 1980s. Unfortunately, Parliament can’t (AFAICT) pass a law telling the Court how to interpret the Constitution.

    Most of the few good things came, AFAICT, from Murphy and Kirby, but their influence has now dissipated. I notice that Kirby has opposed the ban on dual citizens and hinted that a different interpretation might have been possible. Murphy would, I’m sure, have concluded that the requirement for a democratic form of government precluded these nonsensical bans.

  7. @John Quiggin

    “It’s unsurprising that Australian constitutional lawyers endorse it”.

    Are you saying they are all in some kind of group-think club, like the Freemasons?


    Murphy’s influence was slight when he was on the Court and non-existent now because few of his judgments were based on legal reasoning. Going down the American road and stacking the High Court with political hacks might get you what you want in the short term but will bite you in the bum eventually, with permanent bad consequences.


    Potentially more interesting. Did he say what the elements of this different interpretation might be?

  8. @John Quiggin

    “Wrongness of its approach”

    What is the standard which determines whether a Court’s approach to constitutional interpretation is right or wrong? Common sense (as defined by me)? Policy outcomes I like?

  9. bjb :
    make it simple: if you’re eligible to vote, you should be eligible to stand for office.

    How about removing that restriction.

    IMO anyone should be able to nominate and be elected. If the voters of Batman decide they want Trump as their MP let them vote accordingly. If Trump declines to be sworn in they’ll just have to try someone else (or not, the opposition in Northern Ireland are elected but refuse to swear allegiance to the occupying power and as such IIRC can’t actually sit in English parliament – after EVEL it’s not really a UK parliament any more).

    It’s been too tempting for some other countries where they combine selective law enforcement (which Australia has) with selective disenfranchisement (which Australia has) to disqualify 10% of more of otherwise-eligible voters (Australia does that but to less than 1%). Given the stupidity we see in Parliament I can easily imagine them looking at Bob Brown’s replacement and saying “hmm, that conviction for Refusing Lawful Instruction could be used to get rid of her” and whaddayano, law tweak and goodbye. The increasingly criminalisation of protest could actually have the same effect thanks to the punitive fines leading to bankruptcy.

  10. We have a capitalist constitution. We’ll have to change more than interpretations to change things.

  11. How about removing that restriction.

    Sure. I’m in favour of that. But:
    + it plainly needs a constitutional amendment [the text and the history of the constitution leaves no ambiguity: dual citizens were always intended to be excluded, for reasons that seemed wise to the framers but not to us]
    + the current government includes peter dutton, who plainly has difficulty with the concepts behind “legal frameworks”; I’d rather wait a few years than let him write the amendment.

  12. John, I agree with you on most things, but not this time. The High Court the high court is supposed to apply the rule of law, you know. I know it often “makes” or ” creates” law, but it does so within a particular envelope (usually legislation). It is not there to just go on frolics of its own (no matter how wise those frolics may be in isolation). If the High Court turns into a legislative body, we are doomed.

  13. @Collin Street

    Those are good points that I find it hard to disagree with (I’m trying, but the mental image of Dutton is distracting (also distressing)

  14. @Smith
    I believe smith is on the money concerning Murphy. A highly overrated politician and Judge

  15. @I am and will always be Not Trampis

    Is Murphy here to defend himself when the straighteners come riding upon their lame great man of history hobbyhorse slinging dull opinions as if sharpened barbs? Murphy was a great supporter of the common man in his story who in turn gave him great support. From a bench of benighted reactionary QEII one-eyed brown nosing types Murphy’s perspicacity, sagacity, and integrity shines, a guiding light to what is right.

  16. @Svante

    Lots of people have those qualities, but that doesn’t mean they should be High Court judges. Also, as the Age tapes revealed, Murphy lacked judgement, which is quite a disadvantage for a judge.

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