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Tuesday, 22 April 1975
Page: 1978


Mr ENDERBY (CanberraAttorneyGeneral) (Attorney-General) - I move:

That the Bill be now read a second time.

The purpose of this Bill is to modify the provision at present made by section 46 of the Constitution in relation to disqualifications of members and senators by virtue of sections 43, 44 and 45 of the Constitution. Section 46 provides- I am sure honourable members would be familiar with itthat, until the Parliament otherwise provides, any person declared by the Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of £ 100 to any person who sues for it in any court of competent jurisdiction. This provision has not been availed of since Federation by any common informer, the name usually given to applicants in suits of that kind. It has its origin in old United Kingdom legislation which has, so far as concerns recovery of penalties by common informers, been repealed in more recent times. For reasons which I will explain later, the Government does not intend to repeal it in its entirety but to modify it.

There is one matter that I think I should make absolutely clear to honourable members. This is that the provisions made by the Bill before the House will not affect the reference of any question affecting disqualification to the High Court by the House in relation to which a question arises in pursuance of section 203 of the Commonwealth Electoral Act. It is my understanding that a matter concerning section 203 is before the Senate at this time. That procedure will still be open and will no doubt be followed in appropriate cases.

It seems to the Government that the penalty provided by section 46 is archaic and out of proportion to the kinds of breaches of the disqualifying provisions that can occur in the complexities of modern life. I might mention that the penalty of f 100 per day provided for by the section is a fixed penalty, and not a maximum one, so that the total penalty that could be incurred by a member or senator could amount to enormous sums where the infringement does not become apparent until years after it has occurred. The Government does not believe that a breach of the Constitution should be condoned, no matter how the breach occurred. The Bill now before the House will result, in the Government's view, in an equitable solution to this difficult question. The Bill provides for the recovery of a penalty of $200 in respect of a past breach at the suit of any person. It provides an adequate sanction in enabling a further $200 per day to be recovered for each day the member or senator sits when disqualified after he has been served with the originating process. Thus if a serious allegation is made and proceedings issued, the member or senator will be at risk if he continues to sit.

The power to make provision repealing or modifying the common informer provision in section 46 of the Constitution is provided by section 5 1 (xxxvi) of the Constitution in conjunction with the words 'Until the Parliament otherwise provides' in section 46 itself. This Bill is an exercise of that power. It is not the intention of the Government to encourage common informer proceedings. But it feels that this procedure should be kept open notwithstanding its disuse during the twentieth century in relation to the Australian Constitution. However, we do not think it should be a vehicle by which a private citizen should be put in a position to enrich himself unjustly. The purpose of the provision is to allow alleged disqualifications to be independently tested. There is already another procedure for this and in normal circumstances it would seem to the Government that the House itself would refer the question to the High Court and have the matter properly judicially determined. One significant change that the Bill will make is that common informer proceedings, if brought, are to be brought in the High Court.

The Bill will apply to disqualifications that have occurred before the date on which it becomes law as well as those that occur after that date. However, a provision has been included in clause 3 that a suit under the Bill is not to relate to any sitting of a person as a senator or member at a time earlier than 12 months before the day on which the suit is instituted. It does not appear to the Government to be in the public interest that the Bill should be used as the means of raising matters long since past. The Bill also makes it clear that in any common informer proceedings a senator or member at fault is not to be penalised more than once in respect of the same wrongful sitting. There is some judicial authority to the effect that that enactment would not be necessary, but there is doubt about it, and for greater caution the Government believes it is proper to insert this provision in the Bill.

It will be seen that the Bill will thus preserve the common informer procedure provided for by the Constitution, while modifying its application in a way that will be more in keeping with modern times and justice. The Houses' power to refer questions of disqualification to the High Court will remain unaffected. I commend the Bill to the House.

Leave granted for debate to continue forthwith.







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