Penalty for sitting in parliament while disqualified
Imposing financial penalties on parliamentarians who sit in parliament whilst disqualified appeals to many of us, but I suspect that few are aware that it is a viable option.
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 46
Penalty for sitting when disqualified
Until the Parliament otherwise provides, any person declared by this 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 one hundred pounds to any person who sues for it in any court of competent jurisdiction.
Suggesting that the framers of the Constitution viewed this transgression as very serious indeed, the penalty imposed by the Constitution for each day of sitting while disqualified amounted to 1/4 of the annual parliamentary salary of £400. (s48) The common informant stood to gain a significant windfall, as the penalty was to be paid to the informant.
It would appear that the High Court never made an order under this section.
Section 46 begins with the words, ‘Until the Parliament otherwise provides.’ Parliament did eventually legislate, and the provisions (especially s3) of the Common Informers (Parliamentary Disqualifications) Act 1975 have replaced s46. The provisions largely mirror s46, with the penalty converted from pound to dollar, meaning that the penalty now recoverable from a disqualified member is $200 per day, and appears to be capped at 12 months. This tiny Act is worth a look.
COMMON INFORMERS (PARLIAMENTARY DISQUALIFICATIONS) ACT 1975 – SECT 3
Penalty for sitting when disqualified
(1) Any person who, whether before or after the commencement of this Act, has sat as a senator or as a member of the House of Representatives while he or she was a person declared by the Constitution to be incapable of so sitting shall be liable to pay to any person who sues for it in the High Court a sum equal to the total of:
(a) $200 in respect of his or her having so sat on or before the day on which the originating process in the suit is served on him or her; and
(b) $200 for every day, subsequent to that day, on which he or she is proved in the suit to have so sat.
(2) A suit under this section shall not relate to any sitting of a person as a senator or as a member of the House of Representatives at a time earlier than 12 months before the day on which the suit is instituted.
(3) The High Court shall refuse to make an order in a suit under this Act that would, in the opinion of the Court, cause the person against whom it was made to be penalized more than once in respect of any period or day of sitting as a senator or as a member of the House of Representatives.
The glaring (and in my view regretable) distinction between s46 of the Constitution and s3 of the 1975 Act is that whereas the Constitutional penalty was huge – 1/4 of parliamentarians annual salary, the current $200 per day penalty in contrast is insignificant in view of the $200,000 plus parliamentary salaries. Imagine how careful our parliamentarians would be if they risked paying informers more than $50,000 of their annual salary for each day they sat in parliament whilst disqualified.
However, even with the low penalties, the High Court has been asked to consider whether David Gillespie, alleged to have sat in the House of Representatives whilst disqualified by having a pecuniary interest in an agreement with Public Service of the Commonwealth, falls within the ambit of s3 of the 1975 Act. Alley v Gillespie is set down for 12 December 2017.