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Dr Gillespie and the substitute statute

October 5, 2017 - 14:59 -- Admin

Last week any media attention not focused on same-sex marriage was soaked up by the latest reports about the seven parliamentarians whose possible disqualification (under section 44(i) of the Constitution) will be argued before the High Court on 10–12 October. Meanwhile, though, the possible disqualification of David Gillespie (under section 44(v)) struck two new and significant hurdles.

Gillespie’s family company has a shopping centre in Port Macquarie, one of whose tenants has a licence from Australia Post to operate a post office. This, it has been claimed, contravenes section 44(v) by giving Gillespie a “direct or indirect pecuniary interest” in an agreement “with the Public Service of the Commonwealth.” I have suggested that section 44(v) will probably not apply — in part because, under the Australian Postal Corporation Act 1989, Australia Post is not “the Commonwealth” and its employees do not belong to the Commonwealth public service.

Now, it appears, the question may never be reached. Instead, two preliminary questions of principle will be referred to a full High Court before the case can proceed. They ask whether it is possible for the question of disqualification to be raised in the present proceedings at all, and whether the court should refuse to issue subpoenas by which to establish the relevant facts.

Procedural possibilities

Questions under section 44 of the Constitution can be resolved in four different ways. Two were set out in sections 46 and 47 of the Constitution itself, though in each case they applied only “[u]ntil the parliament otherwise provides.”

Under the original wording of section 46, 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 who sues for it in any court of competent jurisdiction.” Moreover, it could apparently be claimed by any number of persons, so that the same multiples of £100 could be claimed again by each plaintiff.

This provision, like section 44 itself, lay dormant till 1975, when Senator James Webster was challenged (unsuccessfully) under section 44(v). Even before that challenge was heard, it brought a bipartisan reaction. The drastic penalties envisaged by section 46 of the Constitution 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 could now be claimed only once, and must be claimed in the High Court. It is this provision that has now been used in the challenge to Dr Gillespie by Peter Alley, the Labor candidate he defeated at the 2016 election.

Under section 47 of the Constitution (again, until the parliament “otherwise provides”) any question of disqualification under section 44 (as well as “any question of a disputed election”) “shall be determined by the house in which the question arises.” In this instance, parliament “otherwise provided” in two separate provisions in the Commonwealth Electoral Act 1918. Yet it seems that these provisions, while providing alternatives, did not exclude the continuing power of each house of parliament to decide for itself, at least as to disqualification. In 1999 the House of Representatives assumed that it still had that power when it chose to decide that Warren Entsch, at that time the parliamentary secretary to the industry minister, was not disqualified under section 44(v). Whatever the merits of that decision, the assumption that the power still existed was probably correct.

The two provisions in the Electoral Act are sections 353 and 376. Section 376 provides that questions about qualifications “may be referred… to the Court of Disputed Returns by the House in which the question arises”; section 353 provides that “[t]he validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise.” The addition of the words “and not otherwise” to section 353, but not to section 376, is apparently intended to indicate that the statutory provisions extinguish the power of the houses under section 47 of the Constitution as to “[t]he validity of any election or return,” but not as to disqualifications.

It is, of course, under section 376 that the current controversies about dual nationality have been referred to the High Court (sitting as the Court of Disputed Returns).

In the 1999 case of Sue v Hill, it was argued that a petition under section 353 disputing “the validity of any election” could not be used to raise questions of disqualification under section 44, and could only be used for allegations of electoral irregularities: sections 353 and 376 were said to be mutually exclusive. The High Court rejected that argument, though only by a 4–3 majority: Justices McHugh, Kirby and Callinan considered the argument convincing. The present position — that questions of disqualification can be dealt with under either of sections 353 or 376 — depends on the majority decision in Sue v Hill.

The argument now raised against Peter Alley’s use of the 1975 legislation to challenge David Gillespie is essentially the same as that raised unsuccessfully in 1999 against Henry Sue’s use of section 353 to challenge Heather Hill: that because questions of disqualification are expressly provided for elsewhere, the 1975 legislation must be understood as not providing an avenue for raising them. Indeed, in his dissenting judgement in Sue v Hill itself, Justice McHugh saw “a real question” whether any claim for a penalty under the 1975 Act might be possible only after a finding of disqualification by the parliament (under section 47 of the Constitution) or by the High Court (under section 376 of the Electoral Act). But that was a dissenting judgement.

Justice McHugh conceded that the speeches introducing the 1975 Act had assumed that it would enable the High Court to decide on disqualification “even if the matter was not referred to the Court of Disputed Returns.” But he argued that “[because] the bill seems to have been drafted and debated hastily…, the debates may be regarded as less persuasive than usual.”

In fact the assumption that the Act would provide an alternative means of asserting disqualification was explicit. The attorney-general of the time, Kep Enderby, acknowledged that “in normal circumstances… the House itself would refer the question to the High Court and have the matter properly judicially determined,” but explained that “[t]he purpose of the provision is to allow alleged disqualifications to be independently tested.” Later he spelled the point out in more detail. The monetary penalty had been scaled down so that the informer

would not be unjustly enriched, he would not reap a windfall but, at the same time, in a proper case he 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… He should not be enriched. He should not benefit from it unjustly. But he should be entitled to put the matter to the test in the court.

The majority judgements in Sue v Hill seemed to accept this assumption. For example, the joint judgement delivered by chief justice Murray Gleeson (for himself and Justices Gummow and Hayne) explained that the use of petitions under section 353 to determine issues of disqualification would make sense because it would reduce the risk that members or senators might otherwise be exposed to the “hazard” of being sued for penalties under the 1975 legislation.

In any event, much of the reasoning used in the majority judgements in Sue v Hill to conclude that claims of disqualification could be raised by petition under section 353 would support the making of such claims under the 1975 Act as well. For example, as the joint judgement put it,“[t]he incapacity specified in s 44 is imposed by the Constitution itself,” and the relevant legislative provision should therefore be seen as “a law for the judicial determination of a matter arising under the Constitution or involving its interpretation.” The 1975 Act should be seen in just the same way.

On the other hand, the decision in Sue v Hill may itself have raised a new problem, because of the words “and not otherwise” at the end of section 353. If the questions referred to in that section include questions of disqualification, does that mean that such questions must now be dealt with under section 353 “and not otherwise”? Clearly it does not mean that, since that would directly contradict the explicit provision for parliamentary referrals in section 376. But in that event, what does it mean?

The answer seems to be that in 1918 (when the present sections 353 and 376 were enacted), the drafter was looking at their effect on section 47 of the Constitution, but not at their effect on section 46 (which at that stage was left intact). As to the validity of elections, the parliament was excluding any continuing role of the houses themselves (and hence the words “and not otherwise”); as to disqualification, it was not excluding that role. And if section 46 was left intact, any legislation later substituted for it would also be left intact.

Besides, section 355 provides that petitions under section 353 must be filed no later than forty days after return of the writs. If the words “and not otherwise” are construed as applicable only within that forty-day period, that might mean that within that period the only permissible procedure is a petition under section 353, but questions arising thereafter may be dealt with either through parliamentary referrals under section 376 or through suits by “any person” under the 1975 legislation. Since section 376 applies only to members or senators who have already taken their seats, and since penalties under the 1975 Act are only for sitting while disqualified, their exclusion within the first forty days after an election would not be a problem.

Alternatively, even if the exclusivity of section 353 is assumed to extend beyond the forty-day period, it is limited to cases where the validity of an election is at stake. That might mean that the case against Dr Gillespie could validly be pursued insofar as it seeks to establish that he is currently “incapable… of sitting,” but not if it sought to establish that on 2 July 2016 he was “incapable of being chosen.”

Common informers

Although the original provision in section 46 of the Constitution referred simply to the recovery of a monetary penalty by “any person,” the debate in 1975 on the statutory substitute consistently referred to it as authorising recovery by “common informers.” The new legislation was given what a former prime minister, Billy McMahon, referred to as “the very odious title” of “the Common Informers (Parliamentary Disqualifications) Act”; it is nowadays commonly referred to as “the Common Informers Act.”

The use of the term in the 1975 debates was often pejorative; Doug Anthony, the leader of the Country Party, complained that “any smart alec or pimp can take the common informer action.” (He also suggested that “if the letter of the law as it is written in sections 44 and 45 of the Constitution were to be followed we would possible [sic] have a very thin parliament.”)

The tradition of contempt for “common informers” is almost as old as that of dependence on them for law enforcement (as was frequently the case before the existence of an organised police force). In 1644, Sir Edward Coke included in his catalogue of “viperous vermin” 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 suggestion that Peter Alley should not be allowed to rely on subpoenas to establish a link between David Gillespie and the licensed post office is based on an argument that, at any rate by the late nineteenth century, the dislike of common informers had become so intense that they would not be permitted to use the fact-finding procedures of the courts in any way. The suggestion depends primarily on two decisions of the English Court of Appeal, one in 1886 and one in 1897, both presided over by Lord Esher as Master of the Rolls.

In the 1886 decision, Martin v Treacher, a common informer had sued for a penalty from a member of a public health board who in his opinion was not duly qualified. He had sought to rely on interrogatories to prove the allegation, but the order for interrogatories had been struck out and the Court of Appeal affirmed that decision.

It was clear that the decision was not based on the privilege against self-incrimination, since Lord Esher rejected any general rule against interrogatories that might “lay the person interrogated open to a criminal charge or to an action for penalties.” But he held that:

as a general rule, and in the absence at any rate of any very exceptional circumstances…, a common informer cannot be permitted to administer interrogatories in an action for penalties in order to enable himself to maintain such action.

In the 1897 decision, Earl of Mexborough v Whitwood Urban District Council, the plaintiff, as a landlord, was not allowed to rely on orders for discovery or interrogatories to prove the tenant guilty of a breach of covenant which would justify forfeiture of the lease. The refusal to assist a landlord in forfeiture had nothing to do with refusal to assist a common informer; but Lord Esher linked the two together as “two rules of law which have always existed as part of the common law of England”:

There has been a great searching for reasons for these rules; but it does not signify what the reasons for them are, if they are well recognised rules which have existed from time immemorial.

He referred to Martin v Treacher as affirming “a rule of law which prevents the application of any of the procedure with regard to discovery in an action for a penalty by a common informer”: “where a common informer sues for a penalty, the courts will not assist him by their procedure in any way.”

Whether this “rule of law” exists, and if so whether it prevents the use of subpoenas in the Gillespie case, is the second question now referred to the full High Court for decision.

At the hearings on 27 and 29 September the precise wording of this question was argued over at length. Lord Esher had spoken of a “rule of law,” but if such a rule existed was it actually a “rule,” or rather a more general “principle”? Or possibly only a “practice”? Could it be an amalgam of both of these — a “sort of principle/practice”? Did it go to the existence of jurisdiction, or only discretion as to its exercise? Was it protective of the persons accused, or prejudiced towards their accusers? Should it be asked whether courts “can” refuse their assistance in such a case, or whether they “should” do so? “Is there such a thing as a power that exists, but should not (ever) be exercised?”

In the end Justice Bell was moved to ask: “We are into a degree of hair-splitting, are we not?” It was she who finally framed the question as one about “policy”: “is it the policy of the law that the High Court should not issue subpoenas in this proceeding?”

The precise question about subpoenas has not been previously raised. Earlier cases in the High Court which might be regarded as relevant have usually focused on the making of orders for discovery; on the privilege against self-incrimination; or on the related privilege against exposure to a penalty. Yet both in Martin v Treacher and in Earl of Mexborough, Lord Esher insisted that the privilege against self-incrimination “has really nothing to do with” the rule upon which he insisted.

In Environmental Protection Authority v Caltex Refining Co Pty Ltd, the High Court held by a 4–3 majority that the privilege against self-incrimination cannot be claimed by a corporation, but also by a different 4–3 majority that Caltex need not comply with a notice requiring the production of documents. On the latter issue, Justices Deane, Dawson and Gaudron held that Caltex could rely on the privilege of self-incrimination; Justice Brennan disagreed with that, but held that Caltex could rely on the separate privilege against exposing itself to a penalty. His reasoning relied on what Lord Esher had said in Martin v Treacher and Earl of Mexborough. Yet although the language he quoted supported his view that “the court refuses to lend its process to compel discovery on the application of a plaintiff whose action is brought merely to recover a penalty,” it had nothing to do with common informers. In any event, the prosecutor in the Caltex case was not a common informer, but the State Pollution Control Commission (and later its successor body, the Environment Protection Authority). And it did not seek “merely” to recover a penalty, but to do so in an attempt to enforce the NSW Clean Waters Act 1970.

The joint judgement of Justices Deane, Dawson and Gaudron saw the privilege against self-incrimination as historically a reaction, not against common informers, but “against procedures of the Courts of Star Chamber and High Commission, and in particular their use of the ex officio, or inquisitorial, oath.” Beyond that, the emergence of “other inter-related rights or immunities” was “to be explained by the principle, fundamental in our criminal law, that the onus of proving a criminal offence lies upon the prosecution and that in discharging that onus it cannot compel the accused to assist it in any way.” Justice McHugh made similar points.

The response to these issues in the High Court has sometimes been contradictory, in part because of conflicting judgements by Justices Isaac Isaacs and H.V. Evatt. In 1910, in a preliminary judgement in the Coal Vend Case, Justice Isaacs refused to make an order for discovery adverse to the defendants. He insisted that the principles to be applied were exactly the same regardless of whether such an order was sought by a common informer or by the Crown. He expressly rejected the attempt to draw such a distinction on the basis of what Lord Esher had said in the Earl of Mexborough case, relying instead on a comment by the Privy Council 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.”

In 1935, in Heimann v Commonwealth, Justice Evatt apparently misunderstood Isaacs as having accepted that the rule related specifically to actions by common informers. He quoted what Lord Esher had said in the Earl of Mexborough case, and added that Isaacs in the Coal Vend Case had spoken “[t]o the same effect.” In any event, having treated the rule as specifically targeting common informers, Evatt went on to dismiss it as irrelevant. The plaintiff J.H. Heimann had in fact acted as a common informer in relation to customs offences, supposedly in exchange for a promised share of the fines; but in suing now to enforce that promise he was acting not as a common informer, but as an ordinary plaintiff seeking to enforce a contract.

In 1953, in Naismith v McGovern, a unanimous High Court appeared to agree with Isaacs’s rejection of the idea that the protective constraints should be characterised by any particular association with common informers; and more recent cases have generally appeared to have taken a similar view. But in 2015 Justice Nettle again relied on Earl of Mexborough and other cases to say:

The privilege against self-exposure to penalty… developed in Chancery from the equitable precept that it would be “monstrous” for a common informer to be able to bring a civil action for penalty without evidence to support it and then require the defendant to supply the evidence out of his own mouth.

Yet these last words are themselves significant. Even if there is such a rule, and even if it is distinct from the privilege against self-incrimination, it is still (like that privilege) directed to self-incrimination — so that even if we assume that Gillespie himself cannot be required to incriminate himself in answer to a subpoena, there would still be no reason why subpoenas should not be directed, for example, to Australia Post or its licensee.

In any event, the issue needs to be considered in the light of the warning given by Justice Kirby in 2004, that however interesting “the history of the penalty privilege” and of “prosecutions by common informers,” it 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.” A suitor under the 1975 Act is not suing “merely” for a penalty, but is seeking to enforce the Constitution; and what Enderby said in his second reading speech makes it clear that the Act was intended for precisely this purpose. Ironically, the Act would be stripped of this purpose only if the first question now referred to the Court were answered by saying that it cannot be used to raise issues of disqualification. Then, and only then, would actions under this Act be brought “merely to recover a penalty.” •

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