The High Court has answered questions in a stated case brought by a common informer challenge to the capacity of a member of the House of Representatives elected at the July 2016 federal election. Section 3 of the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) provides that any person who has sat in Parliament ‘while he or she was a person declared by the Constitution to be incapable of so sitting’ is liable to pay ‘any person who sues for it in the High Court’ a sum of money. The defendant was declared elected as a member of the House of Representatives on 20 July 2016. On 7 July 2017, the plaintiff commenced proceedings under the Common Informers Act, contending that the defendant was incapable of sitting as an MP because he holds shares in a company that leased premises to Australia Post, contrary to s 44(v) of the Constitution. After a query about whether the High Court has jurisdiction to decide the anterior question of the defendant’s eligibility to sit as an MP, Bell J formulated the questions for the Full Court as follows:

(1) Can and should the High Court decide [in this proceeding] whether the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of section 3 of the [Common Informers Act]?

(2) If the answer to question (1) is yes, is it the policy of the law that the High Court should not issue subpoenas in this proceeding directed to a forensic purpose of assisting the plaintiff in his attempt to demonstrate that the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of section 3 of the Common Informers Act?

The Court unanimously answered Question 1 ‘no’, and consequently it was not necessary to answer Question 2.

The joint judges (Kiefel CJ, Bell, Keane and Edelman JJ) held that whether the defendant is incapable of sitting as an MP is a question to be determined by the House of Representatives, unless it resolves to refer the matter to the Court of Disputed Returns. This answer to Question 1 is determined by ss 46 and 47, and their relation to s 44, of the Constitution. Section 46 provides that ‘[u]ntil the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting [in Parliament] shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction’, which the joint judges note has been ‘otherwise provided’ for by the enactment of the Common Informers Act, which mirrors the liability requirements of s 46 (at [8]). Section 47 provides that ‘[u]ntil the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises’. The joint judges noted that Parliament has otherwise provided for this, namely in s 376 of the Electoral Act 1918 (Cth), which enables, but does not require, the House to refer questions of qualification for election to the Court of Disputed Returns (at [12]).

After covering the parties’ arguments (at [14]ff), the historical background to ss 46 (at [19]ff) and 47 (at [25]ff), the joint judges emphasised that s 47 expressly gives the authority to determine questions of qualification to the Houses of Parliament, a reading confirmed by the Convention debates and later judicial decisions (at [30], and see [31]ff). Turning to the Common Informers Act, the joint judges rejected the plaintiff’s contention that the Act should be read as authorising the High Court to determine all elements of liability necessary for imposing the penalty (at [38]), an argument based on an analogy with Sue v Hill [1999] HCA 40 (see [38]ff). The provisions of the Electoral Act considered in Sue v Hill  were made under s 47, whereas the Common Informers Act is a law made under s 46, and ‘does not share the characteristics of a law made under s 47 … Whether it does so is to be resolved by a process of construction, not by analogy with a law of a different kind. Sue v Hill is not authority for the proposition for which the plaintiff contends. It is authority for the proposition that the context for questions as to qualification arising under s 47 is s 44. This is a proposition which the plaintiff’s argument largely denies.’ (at [42]–[43]).

The joint judges noted that in the absence of any express provision in s 46 conferring the authority to decide on disqualification raises the question of whether an implication of power is necessary, which depends on whether provision for determining it exists elsewhere in the Constitution (at [45]). The breadth of the operation of s 47, indicated by the use of the words ‘any’ and ‘respecting’, shows that it could be used to determine a disqualification for the purposes of liability under s 46 (at [46]–[49]). Section 46 itself does not expressly authorise a court to determine questions of disqualification, and the phrase ‘any person declared by this Constitution to be incapable of sitting’ suggest that the circumstances of incapacity to sit are found elsewhere in the Constitution (at [51] and [52]):

Whilst the question posed by these words in s 46 is one necessary to be determined before a person is liable to the imposition of a penalty, it is not necessary that the answer to that question be determined by the court hearing a common informer action. Indeed, there may be good reason to conclude that the question should not be determined in that proceeding, given that the same question is to be dealt with under s 47 and that it may be part only of the overlapping questions which may there arise.

The joint judges then turned to the plaintiffs’ contention that s 44 involves a ‘singular condition’, namely that it applies to ‘a person who is incapable of being chosen and sits’: it should be construed in this way because s 46 does not impose a penalty to a person who is chosen but does not sit (at [58]), and a person who was duly elected but later becomes subject to a s 44 disability is not a person ‘incapable of being chosen’, and instead the incapacity follows from s 45‘s provision that the place ‘shall thereupon become vacant’ (at [59]). After examining the plaintiff’s submissions in detail and noting a number of unclear or confusing elements in the argument (at [60]ff), the joint judges held that s 44 does not contain any singular condition, and that the argument is based on a misconception about the interaction of ss 44 and 45 (at [64]–[67]):

The plaintiff’s argument that s 44 does not itself render a person who becomes subject to a disability during his or her term incapable of sitting, but s 45 does so, cannot be accepted. It is plainly inconsistent with what was said in Re Nash (No 2). It was there explained that if a person, after becoming a senator or member of the House of Representatives, becomes subject to a disability mentioned in s 44, ‘not only does s 44 operate to prevent the person from sitting but s 45(i) operates to vacate his or her place. Section 45(i) has that operation even if the person has not yet taken his or her seat for the place for which he or she was chosen and, by reason of becoming subject to the disability, is prevented by s 44 from ever doing so.’

Properly understood, the place of s 46 in the scheme of Ch I Pt IV is to allow for the imposition and recovery of a penalty in a common informer action. It is the role of the Court to determine the quantum of the penalty under the Common Informers Act. It may do so when the anterior question of liability is determined by the means provided by s 47.

The joint judges concluded that the questions be answered ‘no’ and ‘unnecessary to answer’ respectively, and ordered that the plaintiff’s proceeding under the Common Informers Act should be stayed until the question of whether the defendant is incapable of sitting is determined (at [68]–[69]).

Gageler J agreed with the answers given by the joint judges. His Honour’s reasons for concluding that the High Court lacks jurisdiction to determine constitutional incapacity to sit amounted to an ‘overriding concern to ensure coherence in the operation of ss 46, 47, 76 and 77 of the Constitution‘ (at [70]). For Gageler J, s 46 only creates a cause of action, and does not confer on any court the authority to decide the elements of that cause of action, though another source of jurisdiction might be a Commonwealth law conferring federal jurisdiction through ss 76 or 77 (at [71], and see [73]). Section 47, in contrast, does clearly confer authority to decide the question of constitutional qualifications, specifically to the relevant Houses of Parliament, and ‘nothing other than authority to decide’ (at [72]). For Gageler J, the relation between ss 46 and 47 operates as follows (at [74]):

The question posed by s 46 of whether a senator or member against whom a suit is brought is a “person declared by this Constitution to be incapable of sitting” answers the description of a “question respecting the qualification” of that senator or member within the meaning of s 47. The consequence is that, unless the Parliament otherwise provides for the purpose of s 47, that element of the cause of action created by s 46 or by a law enacted under s 51(xxxvi) for the purpose of s 46 can only be established by a prior determination of the Senate or the House.

After considering and rejecting the ‘alternative view’ (see [75]–[77]), Gageler J noted that the Parliament has otherwise provided for the purpose of s 47 by a law enacted under s 76(i) and (ii), namely pt XXII of the Electoral Act 1918 (Cth) (at [78]). The Common Informers Act replaces the constitutional cause of action in s 46 with a statutory one, but the jurisdiction conferred by s 5 of that Act is still ‘circumscribed to the extent of the continuing exclusive operation of s 47’ (at [79]), meaning that the elements in s 3 cannot be determined by the High Court itself, but only by the Senate or House or the Court of Disputed Returns following a referral (at [80]).

Nettle and Gordon JJ likewise agreed with the answers given by the joint judges, holding that whether a member or senator is incapable of being chosen or is ineligible to sit is to be decided in accordance with s 47 and legislation made under it: it is not open for the High Court in a proceeding under the Common Informers Act to decide whether the defendant was declared by the Constitution to be incapable of sitting (at [90]). Rejecting the plaintiff’s submissions on ss 46 and 47, Nettle and Gordon JJ noted, at [104], that

Section 46 does not expressly or by necessary implication empower the Parliament to provide for means of determining any question concerning the qualification of a senator or member of the House of Representatives. Section 47 does. That difference, and the considerations mentioned in what follows, signify that the determination of who is disqualified is left to the processes fixed under s 47.

Section 47’s use of ‘any’ makes it clear that it deals entirely with qualification questions (at [105]). Prior to any legislation made under s 47, the determination of qualifications, including those relevant to s 46, was within the exclusive cognisance of the relevant House, meaning that absent such a determination no liability under s 46 would arise (at [106]). That exclusive cognisance is altered by the mechanisms under pt XXII of the Electoral Act 1918 (Cth) for referrals to the Court of Disputed Returns (at [107]–[109]), although those provisions do not mean that s 47 is the ‘source’ of the Court’s jurisdiction: ‘the long-standing institutional arrangement was for such questions to be determined by the relevant House’ (at [110]). Finally, the plaintiff’s arguments failed to address the uncertainty that would be created, including different time limits on the bringing of actions, and the possibility of inconsistent determinations of qualifications between a House of Parliament and the High Court (at [112]). Consequently, qualification questions may only be determined by the House in which it arises or by the processes under the Electoral Act, and may not be determined by the High Court under the Common Informers Act (at [113]).

ORDER

1. The questions referred to the Full Court under s 18 of the Judiciary Act 1903 (Cth) be amended and answered as follows:

Question (1)

Can and should the High Court decide in this proceeding whether the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of section 3 of the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) (“Common Informers Act”)?

Answer

No.

Question (2)

If the answer to question (1) is yes, is it the policy of the law that the High Court should not issue subpoenas in this proceeding directed to a forensic purpose of assisting the plaintiff in his attempt to demonstrate that the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of section 3 of the Common Informers Act?

Answer

Unnecessary to answer.

2. The plaintiff’s proceeding under the Common Informers Act be stayed until the question whether the defendant is incapable of sitting is determined.