At the heart of the High Court challenge to Bob Day’s qualification to contest the Double Dissolution election of 2016 lies the case of Senator James Webster in 1975. Contentious at the time in the midst of wider political controversy, and thought potentially capable of opening up to scrutiny all manner of contractual arrangements, including residential leases, held between MPs and the Commonwealth, the relevant clause was narrowly interpreted by a single judge of the High Court and benefit of the legal doubt given to the Senator.
Since then, it has been the subject of criticism, and may well be overturned in the course of current proceedings. In its submissions in the current case, the Commonwealth has argued that, while Bob Day would fall foul even if the case were applied, Re Webster was too narrowly decided. Herewith the background to the original case, and its aftermath.
James Webster had been a Country Party senator for Victoria since he had filled a casual vacancy in 1964. According to the Senate Biographical Dictionary (from which this and other details of his life and career is taken), prior to joining the Senate, he had worked on the wharves and in the timber industry, before joining the timber, hardware and plumbing firm, JJ Webster Pty Ltd, founded by his grandfather. With the post-war boom in building and construction, the firm had become a substantial enterprise, with contracts with the Commonwealth and State governments.
By the time of his re-election in 1974, Webster was a shareholder in the firm, as well as its managing director, company secretary and manager. As manager, he was paid a salary and was provided with access to a company car, but received no further remuneration from his other responsibilities.
Ahead of a normal half-Senate election in 1974, Webster was in a vulnerable position – pre-selected for the third place on the Coalition ticket, when a total of five senators were to be elected, and the Democratic Labour Party was still an electoral force.
However, with the Double Dissolution of 1974, and an election for the full Senate, Webster was easily re-elected. Following the election, he was elected Chairman of Committees (effectively the Senate Deputy President) and was Deputy Leader of the Country Party in the Senate.
Along with the former Liberal President of the Senate, Magnus Cormack, Webster unsuccessfully initiated High Court action to prevent the Whitlam Government from proceeding with a Joint Sitting to consider and pass the bills that had been the trigger for the Double Dissolution election.
The Joint Select Committee on Pecuniary Interests
In October 1974, a Joint Select Committee on Pecuniary Interests was established to inquire into the need and possible options for declaring and registering pecuniary interests held by Members of Parliament. The Committee included such then and future notables as Peter Nixon, Senator Jim McClelland, Paul Keating – and Senator Webster. The terms of reference also required the Committee to examine whether a register should apply to non-Members, such as the public service and the media. Public hearings started in early 1975, and included a range of MPs, experts and editors and journalists.
On Wednesday March 19, 1975, journalist Ben Hills wrote a feature article in The Age on the Committee and its deliberations. Hills had appeared as a witness before the Committee the week before, and had advocated for a public register of interests. His March 19 article was a general discussion of the issues facing the Committee, and posited a number of “hypothetical” situations in which Members and Ministers might have a conflict or convergence of public and private interests.
The “hypotheticals”, couched in terms of Senator X, MP Y and Minister Z, dealt with scenarios where members with shareholding interests might campaign on mining issues, other members with landholdings might benefit from government decisions or a Minister might make representations on behalf of associates engaged in an immigration scheme. In later evidence to the Committee, Hills nominated particular Senators and Members and a then former Minister who he had in mind when formulating these scenarios
Almost in passing, Hills’ article noted Senator Webster’s opposition to the creation of a register of interests.
On the same day as Hills’ article was published, the Committee received a letter from a retired Commonwealth public servant, Peter Brown, who wanted to alert the Committee to the fact that “a Senator, probably unwittingly” had breached section 44 of the Constitution by “contracts with the Crown”. In the material on the public record, there is no specific reference to Webster, but there is sufficient to indicate that the connection was made.
Two days later, on 21 March, Hills followed up his piece with another, “Senator’s Firm Dealt with PMG”. In the article, Hills reported that JJ Webster Pty Ltd had a series of contracts with the Post-Master General’s Department between 1964 and 1966. An editorial on the same day claimed the news as vindication of The Age’s campaign for a register of interests.
On 4 April, Hills and Brown appeared separately before the Committee to give evidence. Hills was accompanied to the hearing by Gareth Evans, then a law lecturer at the University of Melbourne, who was not allowed to give evidence or advise Hills directly. Evans had given advice to Hills on the constitutional issues affecting Webster.
While Hills had published the story on Webster, the Committee spent more time with him examining the issues raised in the X, Y and Z scenarios than with the Webster case – citing their lack of jurisdiction to investigate the particulars of Webster’s arrangements. However, in written evidence to the Committee, Hills advised that further research had indicated that JJ Webster had at least 9 contracts with four government departments between 1964 and 1974, totalling over $100,000 ($777,440 in 2015 dollars).
The identification of a contract having effect in 1974 meant that Webster’s qualification and eligibility as a Senator at the most recent election was in question.
Hills’ submission argued that Webster was in “blatant breach of the Australian Constitution”, and in particular section 44(v), which disqualified from election to the Parliament any person having a direct or indirect pecuniary interest in any agreement with the Commonwealth Public Service.
Similarly, Brown was not pressed on the Webster matter, but instead canvassed a range of matters relating to post-separation employment and the constitutionality of pensions. Towards the end of his evidence, however, Brown obliquely referenced the fact that he had become aware in 1967 of the matter to which he had alerted the Committee, from his time as a public servant, and had made this known to a trade union official, but nothing had come from it. He had been reluctant to pursue the matter through official channels at the time out of concern for his career.
Referral to the Senate
On 15 April, without reaching a finding on Webster’s situation, the Committee’s chair, Labor’s Joe Riordan, wrote to the Senate President, advising of the matters raised by Brown and Hills.
On 16 April, the Leader of the Government in the Senate moved that the questions of Webster’s eligibility to be chosen and to sit as a Senator be referred to the Court of Disputed Returns for determination. Under the Electoral Act, then as now, the Senate could refer matters concerning the qualification of its members to the Court for determination.
Malcolm Fraser had taken over the Liberal Leadership just three weeks earlier, and in one of the first challenges of his leadership, he and Country Party leader, Doug Anthony, announced that they would support the referral to the High Court. While debating the Government’s motives in pursuing the matter, members of the Opposition taking part in the Senate debate recognised that a cloud had been raised over Webster’s eligibility to sit in the Senate, and had to be resolved. The Opposition moved an amendment so that while Webster’s matter would be referred to the Court of Disputed Returns, a judicial inquiry would also be held into the broader question of eligibility and the pecuniary interest provisions, including whether any other Members fell foul of the pecuniary interests provision.
With the uncertainty around Webster’s position, Senators argued that any contractual or “fee for service” arrangement with the Commonwealth, such as the purchase of a stamp or having a telephone service, might see MPs breach the Constitution. More seriously, questions were raised about rental agreements which saw senior Government figures rent flats and units from the Commonwealth, such as the arrangement where Deputy Prime Minister Jim Cairns paid $10.40 a week to the Commonwealth for a Canberra flat.
A further amendment was moved by the independent Liberal Movement’s Steele Hall that would have had the judicial inquiry conducted first, and then Webster referred to the Court. With only a sprinkling of support from Coalition members, Hall’s amendment was defeated 11-43. The Opposition’s amendment for a subsequent judicial inquiry, and the motion as amended, were then passed on the voices.
The Senate Numbers
As a member had not been disqualified under section 44(v) to this point, it was unclear how a Senate seat would be filled were it to be vacated in these circumstances. Some of the commentary at the time assumed that any vacancy would be treated as a casual vacancy, with the Victorian (Coalition) Government selecting the replacement. However, Hills’ piece (presumably relying on advice from Gareth Evans) noted that it was possible that the seat could be filled by the next placed candidate, or that it might even be necessary to run a fresh election for the seat.
At the 1974 Double Dissolution, there were 48 candidates for the Senate in Victoria. As this was prior to the system of group voting tickets, introduced in 1984, candidates on a party ticket were grouped together but not identified by party, and a voter was required to number all 48 squares in order of preference to cast a valid vote. Being a double dissolution, ten senators were elected, with Labor and the Coalition getting five seats each. The DLP’s Frank McManus came in at 11th.
At this time, the seeds of the constitutional crisis that would result in the dismissal of the Whitlam Government were not yet obvious, but were being laid. In February, Lionel Murphy had resigned his Senate seat to take up a seat on the High Court. The NSW Coalition Government had nominated an independent to fill the casual vacancy, in breach of a convention that a replacement come from the same party.
Yet, under all the likely scenarios for filling any vacancy if Webster was ruled ineligible, the likely replacement would be either a Coalition member or the DLP’s McManus. If the Labor Government had thought there was any political advantage to the proceedings, it nevertheless advanced them in a relatively even handed way – undertaking to pay Webster’s costs ahead of the proceedings, and briefing former Liberal Attorney-General, Tom Hughes, QC, to make the Commonwealth’s case.
From the distance of some forty years, and without evidence on the public record, one does not discern much enthusiasm from the Whitlam Government for pursuing the matter. It presented little or no political advantage, other than removing a long standing and senior Coalition figure in the Senate, who had been ready to use the courts to frustrate the Government’s legislative program. Indeed, the Government funded Webster’s defence, and by legislation, greatly reduced his exposure to potential financial penalties if he were found to be disqualified (see “Section 46 and Common Informers”).
The Government’s even handedness may not have been entirely born of altruism. As an Alan Moir cartoon in The Bulletin of the time had it, while Webster was in immediate danger, all MPs were at risk from a broad reading of s.44(v).
The High Court
The matter was referred to the High Court sitting as the Court of Disputed Returns, under the then applicable provisions of the Electoral Act (the present day equivalent provisions were used in the cases of Senators Day and Culleton).
On 19 May 1975, Sir Garfield Barwick, sitting as the Court of Disputed Returns, granted leave to Hughes, QC, to represent the Commonwealth; future High Court Justice and Governor-General, William Deane, QC to represent Webster; and John Traill, QC, to represent Frank McManus, the unsuccessful DLP Senate candidate at the 1974 election, but only in the event the matter progressed to the stage of needing to consider the filling of a vacancy.
Peter Brown, the retired public servant who, along with Ben Hills, had brought Webster’s affairs to the attention of the Parliament, sought leave to appear to have the matter extended so as to challenge Webster’s earlier elections to the Senate. However, Barwick denied him leave. Leave was also refused to a persistent electoral litigant from Queensland, who among other things, challenged Barwick’s authority to hear the case.
Section 46 and Common Informers
Aside from leaving a cloud over the entirety of Webster’s Parliamentary service, and any effect this might have on an entitlement to a post-Parliamentary pension (a topic of much interest to Brown), the only practical effect of Brown’s challenge might have been to open the question of section 46 of the Constitution regarding the monetary penalty imposed on a MP found to have been disqualified.
As matters stood before the whole Webster affair, section 46 provided that a MP was liable for a fine of 100 pounds ($200) for each day that they sat in Parliament while disqualified, payable to any member of the public (known in the parlance as a “common informer”) who sued in a court of competent jurisdiction. However, in the midst of the controversy, on 21 April, the Opposition raised the question of the potential financial impact on Webster were members of the public to make use of this provision. At a minimum, 286 days had passed from the first sitting of the Parliament after the 1974 Double Dissolution to the day this matter was raised, leaving Webster already liable to a penalty of $57,200 were anyone to sue. If a suit could be opened up to cover the entirety of Webster’s Senate career, the penalty might exceed this at least tenfold.
The following day, the Government introduced the Common Informers (Parliamentary Disqualifications) Bill to ameliorate the effect of section 46. (The section permits effective amendment without referendum by being one of the sections of the Constitution that commences with “Until the Parliament otherwise provides”.)
Under the Bill, a common informer would only be able to claim $200 a day for every day a member sat while disqualified from the day immediately preceding the day the informer originated the suit, and every day thereafter, rather than being backdated to the start of the member’s term. The Government’s rationale was that once a member was on notice that a common informer was suing then it was their judgement call as to whether they should continue to sit. The Bill provided that it applied to all matters, whether or not they were in question before or after passage of the legislation, so it afforded protection to Webster. The Bill also provided that suits had to be commenced in the High Court, thereby narrowing the fora in which proceedings could be initiated. The Bill passed through both Houses by the following day. With minor statutory revisions in 2008 (providing for gender neutrality), it remains the law.
The High Court Proceedings
Barwick adjourned the proceedings to 2 June so that findings of fact could be presented to the Court. In doing so, he indicated that he would be likely to constitute the Court with the full bench of the High Court.
However, when the Court resumed, Barwick was again sitting alone. Hughes, on behalf of the Commonwealth, sought a referral to the full High Court bench, while Deane opposed the application, noting that Webster had taken leave of absence from the Senate pending the outcome of the case, and wanted it resolved as soon as possible.
Barwick refused the Commonwealth’s application, saying that the case
“might involve some consideration of general law but not any constitutional questions of great moment really. I think the most convenient course is for me to decide it, and that I will do.”
A reading of the transcripts of proceedings show Hughes playing the straightest of straight bats with regards to the proceedings. Much of his “argument” consisted of reading affidavits, agreements and contracts on to the record to establish the business relationship between the Commonwealth and JJ Webster. For instance, he read on to record an affidavit from Commonwealth public servants that JJ Webster had undertaken to supply timber products to Commonwealth departments between December 1973 and March 1975.
As the transcript truncates those materials read out but also submitted, it’s not clear what the particular terms were in any given contract, but it appears that JJ Webster was in effect a pre-approved tenderer for some Departments, such as the Post Master General’s Department (for which it supplied timber logs for telephone wiring poles) wherein it was approved as a supplier and the Commonwealth undertook to go to it first before going to the broader market. Hughes completed this recitation of affidavits by making it clear that there was no suggestion that Webster had acted other than with complete integrity.
In an affidavit submitted by Deane, on behalf of Webster, it was submitted that the value of the company’s dealings with the Commonwealth was relatively small, and did not constitute the sort of arrangement that was covered by the Constitution. Webster told the Court that the sales to the Commonwealth in the year ending June 30, 1974, had not been in excess of $35,000 (nearly $275,000 in 2016 terms), whereas the company’s total sales had been $874,000 ($6.86 million in 2016 terms).
In 1974, Webster had drawn a salary of $4076 from the firm ($32,000 in 2016 terms). By way of comparison, the basic salary of a Member of Parliament in early 1973 had been $9500, increasing to $14,500 by 1974.
Deane submitted that even if Barwick could find that there was a relevant agreement between the Commonwealth and JJ Webster, Webster himself did not hold a pecuniary interest as he was only a minority shareholder and did not hold a controlling interest in the company.
On 24 June, Barwick delivered his judgment. He found that Webster had not breached the Constitution, and was not disqualified from holding his seat in the Senate. In doing so, he said that the “the questions turn largely on technical concepts of the law of contracts.”
This, Barwick said, was:
a matter for great regret that the composition of a House of the Parliament should depend upon such highly technical differentia as I shall need to consider in order to resolve the questions submitted by the Senate to the Court on this occasion.
In reaching his decision, he had taken a most un-Barwick approach to the decision, considering extrinsic materials, such as the Constitutional Convention debates, and taking a purposive approach to section 44: asking why it had been adopted. Indeed, during the case, Barwick noted that he had consulted the debates saying:
One ought not to do it, but I did it; I went and looked at the original debates.
Essentially, Barwick took the view that the purpose of section 44(v) was to deny the Crown a hold over a Member by force of a contractual arrangement that might be managed to the advantage or disadvantage of the Member during the term of their service and the life of the contract. Further, he held, the arrangement needed to be in place for a substantial period of time for such an undue hold to have any purpose or effect:
It seems to me that, upon the proper construction of the paragraph, bearing in mind the purpose of its presence in the Constitution, the agreement to fall within the scope of s. 44(v.) must have a currency for a substantial period of time, and must be one under which the Crown could conceivably influence the contractor in relation to parliamentary affairs by the very existence of the agreement, or by something done or refrained from being done in relation to the contract or to its subject matter, whether or not that act or omission is within the terms of the contract.
He dismissed any notion that it was to prevent Members from taking advantage of their office, in the way that pecuniary interest provisions covered elected local government officials:
The protection of the independence of the parliament is a completely different purpose which is not directly concerned with possible conflicts of interest and duty, though of course, to yield for personal gain to the pressure of the Crown in the performance of the parliamentary function could be said to indicate a preference of interest over duty. But the obligations of a member of parliament cannot be compared to the duties of local government or statutory officials. The member is in a significantly different situation.
His view of what constituted a “pecuniary” interest for a Member of Parliament was that:
Further, it seems to me that the interest in the agreement of the person said to be disqualified must be pecuniary in the sense that through the possibility of financial gain by the existence or the performance of the agreement, that person could conceivably be influenced by the Crown in relation to Parliamentary affairs.
Barwick noted that there was nothing in the case law to support this point, but equally, there was nothing to deny this interpretation:
Whilst I am bound to say that I can point to no authoritative decision interpreting this section or its progenitors in this particular sense, I can say that, having carefully examined the decisions which have been given, I do not find any which would deny that interpretation.
Barwick then turned to consider the nature of the transactions between the Commonwealth and the company. While there were arrangements for JJ Webster to be approached to fill orders as required, Barwick did not consider these to be contracts that fell within the remit of the disqualification provisions. When individual orders were made, filled and paid for pursuant to the arrangement, Barwick considered these to be “separate and distinct” and “casual and transient”, and that he could not “conceive that, in these days, the Crown could exert any influence in Parliamentary affairs by anything it could do, properly or improperly, in relation to such an agreement.”
While dismissing the notion that the agreements between the Commonwealth and the company disqualified Webster, Barwick did go on to consider whether his shareholding in JJ Webster constituted a “pecuniary interest” such as to disqualify him. Again, Barwick found this difficult to sustain:
it is in my opinion more than difficult to conclude that the shareholder does have a pecuniary interest in each and every of the day to day transactions of the company, whether they be strictly “over the counter” transactions or arise out of orders given for the immediate supply of goods pursuant to a standing offer of supply. Under the general law, plainly he does not: in my opinion, there is good reason to conclude that the same is true in relation to s. 44 (v.).
Further, bearing in mind the purpose of the disqualification, it is difficult to see that the shareholder in this instance has any such pecuniary interest in the particular agreement arising from the giving of a specific order as would conceivably place him in any respect under the influence of the Crown in relation to Parliamentary activities, or in any wise enable the Crown through him to “sap” the freedom and independence of Parliament.
This argument is a highly technical one, founded on the proposition that shareholders do not at law acquire a pecuniary interest in a contract entered into by a firm of which they are merely a member.
Barwick summed up by saying:
In my opinion, such an agreement is not within the scope of the terms of s. 44 (v.), and did not constitute a relevant agreement with the Public Service of the Commonwealth. Further, in my opinion, it is at least doubtful whether Senator Webster had any relevant pecuniary interest in any such agreement.
I conclude that Senator Webster was not ineligible to be chosen on 18th May 1974 as a Senator, and did not at any time become incapable of sitting as a Senator. Both questions posed by the Senate are answered in the negative.
On 9 July, the decision was tabled in the Senate, with Senator Webster resuming his place. On the same day, the Senate noted the death of Queensland ALP Senator, Bert Milliner on 30 June. It was his death, and the subsequent nomination of an ALP renegade by the Bjelke-Petersen Government to fill the vacant Senate seat that put in place the Senate numbers that led to the dismissal of the Whitlam Government four months later.
With the election of the Fraser Government in December 1975, Webster was appointed Minister for Science, and took on the expanded Science and Environment portfolio in 1978. In 1979, he was again preselected third on the Coalition ticket for the Senate election that would take place in 1980. With a likely half Senate election for five places, he was again vulnerable to defeat, and resigned from the Senate in January 1980 to become High Commissioner to New Zealand, where he served for four years.
With Webster’s victory, and Barwick’s narrow reading of section 44(v) to exclude the ordinary transactions (“casual and transient”) between Members and the Crown, the threat hanging over other Members seemed to immediately dissipate.
After the Senate’s resolution that there be a judicial inquiry to determine if other Members fell foul of the provision, the Attorney-General, Kep Enderby, had taken a proposal to Cabinet to establish such an inquiry.
On 23 May 1975, Cabinet agreed to a Royal Commission to inquire into the disqualification of Members of Parliament, consisting of three judges. The decision was to be announced in the House by the Prime Minister and in the Senate by the Leader of the Government. Further consideration within Government was given in May and June, but as far as I can tell no such announcement was ever made, and the Royal Commission never took place.
Webster’s victory was soon overtaken by the tumult and drama of the revelations of the Loans Affair and the sequence of events leading to the dismissal of the Whitlam Government. However, Barwick’s judgment did not escape scrutiny and criticism.
In August 1975, Gareth Evans, writing for the Australian Law Journal, noted that Barwick’s decision was “narrow in scope” and “based very much on the particular facts before him”. As for Barwick’s reading of the constitutional convention debates to divine that the purpose of s.44(v) was solely to prevent undue influence by the Crown and not undue gain by a Member, Evans noted:
Though casting a sideways glance at the Convention Debates which … emphasise the misuse of influence by the member himself rather than the Crown, Barwick CJ felt able to hold that the sole purpose of the clause was that indicated on the face of its 1782 United Kingdom progenitor, ie the eighteenth century one of protecting Parliamentary independence from being undermined through financial seduction of its members by the Crown.
Indeed, Barwick’s reading of the Convention debates was in contrast to that of Webster’s own Coalition colleague, Senator Reg Withers, the Leader of the Opposition in Senate, who had noted at the outset of the controversy around Webster, that the debates established that a purpose of the clause was to prevent the undue enrichment of Members:
Anyone who has read the constitutional debates will have seen what its framers desired. These sections came about because abuses, both apparent and real, were taking place in the colonial parliaments in the 1890s. The federationists were determined to end such practices. They were determined to ensure that this Parliament was composed not only of men of probity but also of men who were obviously of the highest moral character.
Evans argued that Barwick’s:
emphasis on the almost archaic “Crown influence” purpose will, if carried through to other contexts, go some distance toward allaying the fears of Parliamentarians. Whether it will satisfy those citizens who see the section playing a role in preserving both the appearance and reality of Parliamentarians’ integrity is of course another question.
Further criticism of Barwick’s reading of the purpose of s.44(v) came in 1976, with the publication of a compelling case note in the Monash University Law Review, by Jack D. Hammond, then a law student and later a member of the Victorian Bar and QC. In it, Hammond cast a critical eye on Barwick’s reading of the English precursors to the disqualification clause:
Regrettably, however, the somewhat narrow view of s. 44(v) as adopted by Barwick C.J. appears to rob the section of most of its efficacy … Barwick C.J. trod an unnecessarily narrow path to reach his conclusion as to purpose.
Hammond concluded by asserting that:
the decision in Webster’s case has rendered it almost useless as a check upon would-be fraudulent politicians.
In 1981, the Senate Committee on Legal and Constitutional Affairs considered the constitutional qualifications of Members. A line up of notable Senators, including Alan Missen, Michael Tate, David Hamer, Chris Puplick, John Wheeldon – and Gareth Evans, now a Senator, gave consideration to the constitutional issues as to who could and could not stand for election and serve in Parliament. On the question of the Webster case, the Committee adopted the criticisms (and indeed, in several instances. the language) expressed by Evans in his 1975 article, and noted Hammond’s criticisms as well as those of other subsequent commentators.
The Committee noted that inquiries into the regulation of Members’ pecuniary interests subsequent to Re Webster had argued that the case had “denuded” s.44(v) of any effect in preventing Members from abusing their position for gain. The Committee itself was not so sure that this was the case, but offered it as evidence of concern. It recommended changes along the lines proposed by Evans in his 1975 article that would have had the effect of giving the provision its ordinary meaning, subject to exemptions for day-to-day transactions and the like.
With the effluxion of time, and dissipating enthusiasm for (and likelihood of success of) minor “technical” constitutional amendments, proposals for reform of this clause fell by the wayside.
But periodic references to the judgment continued to occur by way of criticism or application. In his 1985 record of his Government, The Whitlam Government, Whitlam himself criticised the judgment saying that a prominent QC had advised him that “if Webster’s case had been decided by the Full Court, Barwick would have been in a minority, probably of one.” His criticism a decade on from the case stands at some odds with the relative even handedness with which it was pursued at the time, coloured perhaps by subsequent events.
In 1996, retiring Labor Senator Peter Walsh used his valedictory speech to relate that a Liberal Senator at the time of Barwick’s judgment had told Walsh that it had caused him to lose all faith in justice.
During the Howard Government, the question again became one of live application, as concerns arose about contracts entered into with the Commonwealth by companies owned by Members of Parliament.
In June 1999, the Opposition raised concerns about Warren Entsch, the Member for Leichhardt and a Parliamentary Secretary, and a cementing contract with the Department of Defence.
The acting Solicitor-General at the time produced an opinion, replete with qualification, that, as the Opposition noted at the time, in the space of 10 paragraphs offered criticisms of Barwick’s judgment in Re Webster five times, and noted a reasonable person may well come to a different interpretation.
The Opposition had its own opinion on the matter, and the validity of Barwick’s interpretation, from Stephen Gageler, then at the private bar, but later a Solicitor-General and subsequently (and presently) a High Court justice, who may well sit on Bob Day’s case.
From excerpts of his opinion read on to the record, Gageler advised the Opposition:
I consider that:
. on the material with which I have been briefed it is unclear whether Mr Entsch would be found to have come under the disability referred to in section 44(v) of the Constitution if the approach in Barwick CJ in re Webster were adopted;
. there is a substantial prospect that the approach of Barwick CJ in re Webster would not be adopted if the matter were to come before the High Court; and
. on the better construction of section 44(v) Mr Entsch would be found to have come under the disability for which the section provides and his seat will have been vacated …
In the result, there is in my opinion a substantial prospect that the High Court would, if it were called upon to consider the matter, depart from the construction of section 44(v) adopted by Barwick CJ in In Re Webster in favour of a construction which:
. treats the word “agreement” as encompassing any contract whether executory or executed within a short period of time and whether or not it is capable of leading to executive influence over a member of Parliament;
. treats a senator or member of Parliament as having a “direct or indirect pecuniary interest” in an agreement where the senator or member has a real (as distinct from remote) expectation of making some monetary gain or avoiding some monetary loss as a result of the performance or non-performance of the agreement; and
. includes within the expression “direct or indirect pecuniary interest” the interest of a shareholder as shareholder.
On the basis of Gageler’s advice, the Opposition moved that Entsch’s election be referred to the Court of Disputed Returns for determination. However, with the weight of numbers in the House of Representatives, the Government refused to do this. It was open to the Opposition to attempt to have the question decided in the High Court by use of the 1975 common informer law, but for reasons publicly unstated (but presumed to relate to the cost of litigating an uncertain prospect) declined to do so.
The Government not only declined to refer the matter to the Court of Disputed Returns, but used the power in section 47, that enables each House to itself determine questions of eligibility, to declare that Entsch was not disqualified from sitting.
In 2002, Coalition Senator Nigel Scullion was the subject of reports concerning commercial arrangements between a company in which he had an interest and various Government departments. Scullion wrote to the then Senate President in May 2002 detailing the arrangements, and seeking to have the Senate determine the matter by way of section 47, as in the Entsch matter.
The matter was subject to, shall we say, a dilatory approach by the Senate. Notwithstanding Scullion’s initiative, it took the Senate 16 months to resolve even to obtain legal advice on the question. When the advice was received in December 2003, counsel submitted that on the reasoning in Re Webster, Scullion did not have a direct or indirect pecuniary interest in any agreement with the Commonwealth, and hence was not disqualified. With the advice not tabled until February 2004, and two years having passed since it was raised, the controversy had ebbed away, and Scullion’s position was unchallenged.
There Re Webster stands – until now, with it central to determining the case against Bob Day. In its submissions the Commonwealth argues:
The reasoning of Barwick CJ in Re Webster (Webster) was, with respect, incorrect insofar as his Honour suggested that the purpose of s 44(v) was only to secure the independence of the Parliament from the executive. A proper understanding of s 44(v) in light of the place of s 44(v) in the constitutional scheme, and the text, purpose, and history of the provision, is that it protects the body politic from the influence that may arise more generally from such arrangements, whether that influence be from the executive itself or whether it arises from a conflict between a Parliamentarian’s duty and his or her financial interests.