Yet more High Court absurdity

In the latest Section 44 news, it’s being suggested that three more MPs or candidates may be ineligible, two because they are doctors and one because they hold shares in a pharmacy business which is a partner in a Linkage project with the Australian Research Council.

For those who aren’t in the research business, the Linkage program involves research which is jointly funded by the ARC, a University and an industry this case the pharmacy business. That is, the crime allegedly committed by this MP consists of (indirectly) giving money (or support in kind) to a government program, in the hope that the resulting research will be useful to their industry in general or to society as a whole. (Work done for the private benefit of a particular business would not normally be eligible; it would be undertaken as a consultancy). On this basis, a volunteer at (say) the Commonwealth could be disqualified for using government resources.

Doubtless, the defenders of the High Court will rush to say that no such nonsensical inference can be drawn. But, if they had a shred of intellectual honesty, they will admit that, before this nonsense began, no one had ever contemplated the absurdities we have already seen.

The other defence that used to be offered was that MPs with s44 problems should have checked the rules. It ought to be obvious by now (but probably won’t be, given the human propensity for bloody-minded adherence to a fixed position) that no-one can check on the rules. Suppose you are, say, a bank clerk, and the local council banks at your branch. On a literal reading, which is the only kind on offer from this High Court, you would seem to be doing business with the government, and would be forced to quit your job rather than taking leave. Your case is even worse if your employer converts you into a contractor with a business that might continue while you served in Parliament.  Perhaps, based on past precedent, the court would let you off, but perhaps not.

There’s no easy way to fix this. Perhaps people will get sufficiently tired of this nonsense that the massive obstacles to a referendum might be overcome, but I doubt it. The only encouraging sign is that, so far, every member disqualified by the mischief-makers on the Court has been re-elected. Perhaps a few more pointless by-elections will produce some popular resistance.

In any case, the real problem is with the High Court’s entire approach to constitutional interpretation, based on the same kind of literalism that Garfield Barwick used to subvert the taxation system in the 1970s. Barwick was slapped down by changes to the Acts Interpretation Act, but Parliament can’t, I think, tell the Court how to interpret the constitution.  The only solution would be to replace existing justices as they retire, with followers of Lionel Murphy who would start from the commitment to a democratic government and strike down any interpretation (such as the disqualification of most of the population from election) that is inconsistent with that.

24 thoughts on “Yet more High Court absurdity

  1. The only solution would be to replace existing justices as they retire, with followers of Lionel Murphy

    Good luck with that. There is a reason that there have been no Lionel Murphy types not named Lionel Murphy* on the HC, and that is that governments of either stripe appoint conservative** members of the legal establishment.

    * Mary Gaudron was not a Lionel Murphy type.
    ** Not necessarily political conservatives, but legal conservatives who won’t say the constitution says white when the words say black.

    A referendum is the only way to change s.44. The job of the political class is to convince the voters. Good luck with that too.

  2. In his own way Murphy was a bad as Barwick.
    Only way to change this is to open up the selection of high court judges. At present the AG nominates and the PM either concurs or gets him (always a him) to find someone else.

    If only we could simply excise s44 from the constitution.

  3. Are pensioners eligible, or Newstart recipients? Or are those “offices for profit under the crown”? At least with citizenship, absurd as the HC rulings are, a literal reading is possible: either a person does hold another citizenship, or not. (It might be very hard to figure out which obtains, but it’s fundamentally a yes-or-no question.) This part of s44 is impossible to interpret clearly in the context of the modern state, where almost every citizen arguably has a business relationship with the government in some manner.

  4. The constitution excludes those holding pensions at the pleasure of the Crown, which would seem to rule out any benefit recipient. So, they would have to go off benefit to stand for office, and would then be starving for months if they lost.

    Despite the appeal of literalism to those with literal minds, it’s inevitably proved unworkable. Even our current, absurd High Court has drawn back from the most extreme consequence of a literal interpretation, which is, as you say, that no one can legitimately sit in the Australian Parliament, since everyone has some kind of dealing with the government. So, what we get is picking and choosing either to achieve favoured outcomes (as with Barwick) or to make gratuitous mischief, as with current HC.

  5. That’s pretty unfair to Barwick, John, since he wrote the judgement in *Webster* that gave a narrow interpretation to s. 44(v). The court then broadened that in *Day*, but it’s still pretty narrow. It certainly doesn’t cover any instance of “doing business with the government”: it’s about transactions that create a conflict of interest.

  6. nottrampis

    At present the AG nominates and the PM either concurs or gets him (always a him) to find someone else.

    Nicola Roxon says hi. So does Stephen Gageler, who has appointed to the HC when Roxon was AG.

  7. @Charles “It certainly doesn’t cover any instance of “doing business with the government”: it’s about transactions that create a conflict of interest.” If that were the case, then the MPs mentioned in the OP would have nothing to worry about. But, clearly, lots of people think they do.

    On Barwick, his approach in Webster has been correctly described as “most unBarwickian”
    I assume that he saw no benefit in creating random chaos, by contrast with the clear political benefit he got from his tortured interpetations of Section 92, the Tax Act and so on. I suppose we should be thankful for small mercies.

  8. Maybe, unlikely as this may sound, Barwick wrote his judgments according to how he saw the law, rather than being motivated by politics.

  9. It does rather make a nonsense of the theory that “ignorance of the law is no excuse”.

    Well, even more pointedly than the mere existence of the high court does (a court to correct misinterpretation of the law by lower courts? But everyone knows the law, it can’t possibly be misinterpreted…).

  10. I think a Section 44 referendum would pass easily You’d replace the weird involuntary citizenship rules with a tajes a foreign citizenship by voluntary act rule like India and every other Commonwealth country with an equivalent of Section 44. You’d replace the contracts rule with a modern conflict of interest rule like the ACT. After all, Section 44 as is probably disqualifies a majority of Australians and there is no constituency for that.

  11. I have a saying. Every rule created to correct an anomaly in reality creates at least two more. The high court is making rulings in an attempt to correct or clarify anomalies in Section 44 (and possibly in other sections). The need is to correct section 44 itself. Section 44 needs to be re-drafted and taken to a referendum. I know this has been said more than once above. The big question is how to re-draft it.

    I don’t recall anyone here suggesting a re-drafting or a referendum wording but then I haven’t followed the discussion here all that closely.

    What do people suggest? Highlighting the High Court absurdity on this matter is valid enough but it does not bring forward any concrete proposals.Citizenship and parliamentary qualification rules are linked issues. We have to decide citizenship rules first and then parliamentary qualification rules.

    My proposal would be as follows.

    All persons born in Australia and Australian dependencies get Australian citizenship. All persons born overseas of Australian citizens (at least one parent) get Australian citizenship. Dual citizenship should be permitted.

    Qualification for any Parliament in Australia should depend on these points;

    (1) You must be an Australian citizen;
    (2) You must have been domiciled in Australia for at least two years continuously at some time or other or for four years if it is made up of periods each less than two years;
    (3) You will be disqualified from standing for election or sitting in Parliament if you are;

    (a) a member of any foreign government;
    (b) in the employ or service of any foreign nation’s government;
    (c) or found guilty in an Australian Court of any major indictable offense (meaning it is heard in a District or High Court with a jury). (The disqualification will be for the period of any custodial sentence and/or for the period of any good behaviour bond if released on own recognizance.

    (4) A person elected to any Parliament must relinquish any and all other paid employment for the duration of the terms(s). Any person so relinquishing employment must receive an open-ended promise of reinstatement in the same or like position, after any term(s) of Parliament, if the business is still operational. Where this promise fails for various reasons, the Federal Govt will pay the person one years minimum wage, means tested, after they leave Parliament (for readjustment purposes).

    I would prefer stricter rules than these but these are probably the most practicable and reasonable. I see it as important to encourage low wage Australians to enter Parliament (if possible) with less financial burden and risk.

  12. Suppose you are, say, a bank clerk, and the local council banks at your branch. On a literal reading, which is the only kind on offer from this High Court, you would seem to be doing business with the government, and would be forced to quit your job rather than taking leave.

    Not so! For historical reasons — origin of local government in the english tradition as chartered corporations, ie ontologically distinct from crown and in certain real senses “private” — local government is not and has never been “crown”, only state and federal. Which is why councils act in lawsuits under their own name rather than as “crown in right of city of brisbane”, &c.

    A reasonable person might argue that this distinction is too nice to hold, yes.

  13. How many justices were appointed under Rudd/Gillard? Certainly Gaegler and French. I think perhaps another one. In other words, the Rudd/Gillard Government has the opportunity to reshape the court along Murphian lines for a whole generation, but wanted to appease the opposition benches and the mainly right wing media (recall appointing “sensible” read “establishment figures to the Future Fund (Costello) and reviewing higher education (Gonsky)). In other words, Labor doubts its own legitimacy by appointing right-wing establishment figures to prominent positions. The LNP shows no such compunction. I recall they appointed Callinan to the bench based on his credentials as, to quote Tim Fisher, a capital C conservative and the right wing firebrand that Abbott appointed to chair his commission of audit. It was the same thing in the US with kavenaugh and Obama’s attempts to appoint a “centrist” (read right wing) judge. Aside from some positive sounds about human rights, the Aussie judiciary is fairly right wing. It’s hard to think of a legal innovator of Murphy’s calibre.

  14. The constitution excludes those holding pensions at the pleasure of the Crown, which would seem to rule out any benefit recipient. So, they would have to go off benefit to stand for office, and would then be starving for months if they lost.

    It’s not so clear-cut. If the point were ever litigated, it would depend largely or wholly on how the Court interpreted the expression ‘at the pleasure of the Crown’. If I were asked for advice by a pensioner/beneficiary who didn’t want to be disqualified, I would suggest arguing that ‘at the pleasure of the Crown’ means ‘at the discretion of the executive government’, and that therefore pensions and benefits which are entitlements under an Act of Parliament are not included. Obviously I don’t know how the Court would view that argument.

    What do people suggest?

    My suggestion, using the official format, is as follows:

    A Bill for an Act to alter the Constitution so as to omit certain words relating to the disqualification of members of the Parliament and Parliamentary candidates

    The Parliament of Australia enacts, with the consent of the electors, as required by the Constitution:

    1. Short title
    This Act may be cited as the Constitution Alteration (Right to Stand for Parliament–Disqualification of Members and Candidates) 2019.

    2. Repeal of section 44
    The Constitution is altered by repealing section 44.

  15. Repealing Section 44 is both a bad idea and not electorally viable. My attempt, as part of a larger project, would run:

    Section 44 Disqualifications
    (1) Anyone is disqualified from serving as a representative or senator if they:

    a. are appointed by, or are in the service of, the Republic, other than-

    i. the members of the Executive; and

    ii. other officers whose functions are compatible with the functions of a representative or senator, and are declared compatible with those functions by law.

    b. have been a member of an independent monitory agency within the preceding 10 years;

    c. are officers in the service of the Republic that are directly responsible to the Executive;

    d. have been a parliamentary provost within the preceding 10 years;

    e. are found to be mentally or physically incapable of fulfilling the functions of a representative or senator by a competent court or tribunal;

    f. are found to have engaged in conduct that contravenes subsection (5) by a competent court or tribunal;

    g. stop being an Australian citizen;

    h. voluntarily acknowledge allegiance, obedience or adherence to a foreign state; or

    i. become an agent of a foreign state or interest.

    (2) A representative or senator who is a party to, or has a direct or indirect interest in, a contract made by or on behalf of the Republic or an authority of the Republic must not take part in a discussion of a matter, or vote on a question, in a meeting of the Parliament or the Executive where the matter or question relates directly or indirectly to that contract.

    (3) A person who holds a disqualifying office or appointment in terms of this section is deemed to vacate that office at the time at which they consent to be nominated as a candidate for the Parliament.

    (4) A disqualification contemplated by this section does not apply unless all possibility of appeal or review of the relevant decision or finding is exhausted.

    (5) Anyone who is disqualified in terms of this section is incapable of sitting as a representative or senator.

  16. Repealing Section 44 is both a bad idea …

    Alan, I am dumbfounded and flabbergasted to find that you like your idea better than mine! How could it possibly be?

    And yet, despite being provided with that additional information, I find that, somehow, I still like my idea better than yours! Can you credit it?

  17. Section 44 does have some purposes, which is why almost all Commonwealth constitutions have something like it. Donald Trump, for example, would not survive section 44 as it now stands because of his constant use of the presidency as a source of profit for himself and his family. Many groups would be eligible for parliament under your scheme who should not be.

    Leaving everything to parliament is never going to pass a referendum, and even if it did would lead to constant silly buggers by governments trying to disadvantage the opposition. Canada, India and New Zealand (among others) all have equivalents to Section 44, as does South Africa which has a constitution that is both contemporary and robust enough to have survived the Zuma presidency.

  18. Suppose Their Worships or whatever the title is get free tea in court breaks served by a tea lady in government employ. Suppose further that biscuits aren’t included, but she makes them available against payment into an honesty tin. Aren’t the judges then doing business with the government, and should recuse themselves from their jobs?

  19. Their Honours are not subject to Section 44. If they were, perhaps they would give it a more rational interpretation.

  20. Don’t we have a circular problem that MPs are given benefits at the whim of the crown but there mere fact that those exist could disqualify them from being eligible to remain MPs? The discussion seems to be veering dangerously into that territory. Or doMPs very carefully legislate their various “entitlements” so as to work around this?

  21. MPs don’t receive benefits at the pleasure of the Crown. Their benefits are fixed by law, if far too loosely. Their salaries are specifically mentioned in the constitution. Even this high court is not quite capable of finding that the constitution mandates unpaid MPs despite mentioning their payment. I think… Maybe… Perhaps…

  22. Section 44 does have some purposes

    Not any good ones.

    Many groups would be eligible for parliament under your scheme who should not be.

    If the people you are referring to are people that the voters do not want to elect to Parliament, then the voters won’t elect them and there’s no need to make them ineligible, and if they are people the voters do want to elect then that’s good reason not to make them ineligible. The voters should be able to elect whomever they want, and there’s no good reason to fetter their choice with constitutional restrictions.

    Leaving everything to parliament is never going to pass a referendum …

    I’m afraid I don’t have a functioning crystal ball. Can you tell me where you got yours?

  23. There is no crystal ball. The political class does not enjoy very high standing among Australians and they have almost always rejected referendums that could be represented as increasing the power of the political class.

    The ban on electing people who hold an office of profit was to prevent the executive bribing members of parliament by appointing them to lucrative offices. The ban on people who have contracts with the public service had the same motivation. Almost all democratic constitutions contain similar disqualification for exactly these reasons. Section 44 has become irrational because the emergence of a large public sector means that career public hospital doctors, teachers, police, and so forth exist in huge numbers compared with when Section 44 was drafted. And the emergence of Australian citizenship, as opposed to a common citizenship of the British empire, has excluded people that Barton could never have envisaged when he drafted the section.

    Australian parliaments are quite weak by world standards, and granting the executive open slather to suborn MPs with appointments and contracts would only make them weaker. A recent example is Mal Colston, who was not made deputy president of the senate for his skills in the chair. Real Section 44 and you coulee expect both suborning appointments not only to gain votes in the parliament but also to control other institutions. I prefer not to see Peter Dutton or Tony Abbot appointed to the human rights commission or Matthias Corman appointed electoral commissioner. But that could just be me.

    It does not take a crystal ball to suspect that a country with a consistent record of rejecting referendums that can be misrepresented as increasing the power of politicians as a class might react the same way to an open slather amendment to Section 44. To a certain extent you confirm this unhappy history by crudely misrepresenting my motives for writing a proposal.

  24. Despite the tentacles of S44 apparently reaching further into a persons private and business life than perhaps would have once been thought possible. I am comfortable with what has happened in terms of the recent disqualifications.

    The High Court drew a line under the ownership of a building in which a post office was a tenant. It shows that the current cohort of judges are not necessarily narrow in the application of the section. I, of course do not know, but suspect that Ms Phelps will be safe to continue to her medical practice as her revenue via Medicare is a rebate. She has not negotiated the a revenue contract and the situation is not covered by an award which comes under the Fair Work Commission’s function. The contract is not between her and her patients.

    As for dual citizenship the law is explicit. It is up to prospective MPs to undertake the necessary steps to for renunciation – otherwise we will be left with a revolving door of Malcolm Roberts – “did you get my email” renunciations. The current ructions regarding Mr Dutton are simple to solve – he should be referred but stays on in parliament until the matter is determined. There is precedent for this approach. If he is eligible he has nothing to fear, just the inconvenience to put up with.

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