Alley v Gillespie

[2017] HCATrans 257

[2017] HCATrans 257

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S190 of 2017

B e t w e e n -

PETER ALLEY

Plaintiff

and

DAVID GILLESPIE

Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 12 DECEMBER 2017, AT 10.15 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR J.E. MACK, for the plaintiff.  (instructed by Maurice Blackburn Lawyers)

MR G.O’L REYNOLDS, SC:  If the Court pleases, I appear for the defendant with my learned friend, Mr D.P. HUME.  (instructed by Colin Biggers & Paisley Solicitors) 

MR S.P. DONAGHUE, QC, Solicitor–General of the Commonwealth of Australia:   If the Court pleases, I appear with my learned friends, MR C.L. LENEHAN and MS J.D. WATSON, for the Commonwealth Attorney‑General intervening.  (instructed by the Australian Government Solicitor).

Your Honours, with the Court’s permission, the parties have agreed that I will address the Court first, followed by Mr Reynolds, followed by Mr Walker.

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE:   Your Honours, could I ask you to turn immediately to the question reserved book and go to page 2.  There you will see the order made by your Honour Justice Bell reserving two questions for the consideration of the Full Court under section 18 of the Judiciary Act.  The Attorney‑General intervenes to make submissions only in relation to the first of those two questions, the text of which your Honours there see set out.  It asks:

Can and should the High Court decide whether the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives –

that language declared by the Constitution, picking up both section 46 of the Constitution and section 3 of the Common Informers Act.

The Attorney submits that the answer to that question is the Court cannot so decide, the question whether it should not do so does not arise.  I should say immediately in case it is not obvious that we do not, of course, contend that the Court is incapable of answering a question as to whether a person is incapable of sitting in a proceeding under the Commonwealth Electoral Act.

Obviously, the Court can answer a question of that kind in a proceeding constituted in that way.  The question reserved should therefore be read as asking whether the Court can decide the identified question in this proceeding, that is, in a proceeding under the Common Informers Act and it is read in that way that we submit the answer is that the Court cannot decide the question.

While your Honours have the question reserved book, if you could turn to page 6 you will see there are some facts that were agreed between the plaintiff and the defendant and they include at paragraph 5 agreement that:

The House of Representatives . . . has not determined or declared that the defendant was not capable of being chosen as a Member of the House . . . is not incapable of sitting –

And in paragraph 6 that there has been:

No proceedings . . . under Pt XXII of the Commonwealth Electoral Act ‑

In paragraph 7, there has been no reference to this Court from the House of Representatives raising the question of the defendant’s qualification and, in paragraph 8, that this Court has not determined “sitting as the Court of Disputed Returns” that Dr Gillespie is not disqualified.

Those facts have the consequence that question 1 squarely raises the issue, the potential significance of which is highlighted by events in the Parliament over the last four or five months, whether any person at any time in the life of the Parliament can obtain a ruling on the qualification of a parliamentarian by the simple expedient of commencing a proceeding under the Common Informers Act.  That is the issue that is raised by question 1.

To date, this Court has never ruled on a question of qualification in a proceeding constituted in that way, although of course it has often done so in proceedings under the Electoral Act.

In our submission, the legal issue that underlies the answer to question 1 is an issue that depends upon the proper construction and interaction of section 46 and 47 of the Constitution. We say that it turns principally on the interaction of those sections rather than on the interaction of legislation enacted under those sections because it is agreed between all of the parties that the Common Informers Act is not an Act that otherwise provides for the purpose of section 47. It only otherwise provides for the purpose of section 46.

If your Honours have the plaintiff’s submission to hand, if you could turn to paragraph 22 in those submissions, which is on page 7, the plaintiff accurately records:

Neither the defendant nor the Commonwealth assert that the Electoral Act was an Act which otherwise provided for the purposes of s 46. The plaintiff also does not assert this. Conversely, no party asserts that Common Informers Act was an Act that otherwise provided for s 47.

So, the position of all of the parties before the Court is that you have a Common Informers Act otherwise providing under section 46 and you have the Commonwealth Electoral Act otherwise providing for the purposes of section 47 but that is how both of those Acts should be understood. In those circumstances we contend that once one accurately identifies the interaction of the constitutional provisions, that powerfully informs the way the provisions that otherwise provide for the purpose of those provisions should be construed.

Before coming to our argument, can we make our best attempt to identify the proposition that we are meeting.  The plaintiff’s argument is, we respectfully contend, a little difficult to pin down but doing the best we can, we submit that there are four propositions that underlie the case that the plaintiff is putting.  If your Honours still have my friend’s submissions there, I will endeavour to identify the paragraphs from which we extract these propositions as I go. 

The first proposition which we draw from paragraph 8 and also from paragraph 5, is that – particularly paragraph 8 – is that section 44 creates what is called a “singular condition” such that it disqualifies only a person who has never been validly chosen to sit in the Parliament because once the person is validly chosen then, as we understand it, they would no longer engage with the singular condition.  Your Honours will see in paragraph 8 it:

is a singular condition.  The “or of sitting” does not provide an alternative path to liability to that of “incapable of being chosen” –

As we understand it, therefore, one can only contravene section 44 if it be construed in that way; if one is both incapable of being chosen and of sitting.  Therefore, it must follow that the person is never validly elected to the Parliament.

The second proposition, which builds on the first, is that it is section 45 of the Constitution, not section 44, that applies to a person who has been validly chosen but who then subsequently becomes incapable of sitting. One sees that idea expressed in paragraph 6, as we read our friend’s submissions.

The third proposition is that section 47 of the Constitution is concerned only with people who have been validly chosen. It is with respect to those people that the three categories of question identified in section 47 are within the exclusive cognisance of the Parliament. If your Honours look at paragraph 12 of our friend’s submissions, there is an acceptance there that the framers of the Constitution did intend that the questions identified in section 47 would:

not be questions for a body exercising judicial power, initially unless and until Parliament otherwise provides.

It is accepted that was within the exclusive jurisdiction of the House. But if your Honours then read the balance of that paragraph, you will see a number of provisions identified that do not include section 44 but do include section 45. So it appears that the plaintiff is putting that section 47 intersects with section 45, but not with section 44. One sees, jumping forward a little, if you go on to paragraph 24, our friends contend that:

s 47 is not the exclusive source, or even a source, of a court’s authority to decide a matter arising under s 44.

They contend that it is just outside of section 47 entirely, as we understand it. The fourth and final proposition is the qualification of a person who has not been validly chosen and therefore of what our friends call the superintendence of section 44 in respect of such a person, a person not validly chosen, is assigned by the Constitution to the judicial power by reason of section 46. You see that in paragraph 21 in particular.

There basically, as we understand it, appears to be a pairing, 46 being the mechanism via judicial power to determine section 44 questions in relation to a person who has never been validly chosen. That is one pair: 44 and 46. The other pair, relevantly, is 45 and 47, section 47 questions not being for the exercise of judicial power in relation to people who are already in the Parliament.

Our friends explain that at paragraph 15 by suggesting that the Constitution was less concerned with people who had been duly elected, but who then became subject to a disability during their term. So if we have mischaracterised the case against us, we will have to revert to it in reply. But we think that that is a fair reading of the way our friends put their case.

Dealing with that then, if we could start with section 44, now well familiar to your Honours, we submit that the proposition that this section creates the singular condition, which we think is the whole foundation for the argument that section 47 does not engage with the section 44 disqualifications, is not sustainable both textually and as a matter of authority. Textually, one sees, following the five numbered paragraphs:

incapable of being chosen or of sitting –

It is plainly a disjunction, the “or”.  One can be incapable of being chosen, in which case one is never validly elected ‑ and that is then the effect of many of the Court’s recent rulings on the references in relation to the dual citizenship matters ‑ or, having been capable of being chosen, if a person then becomes subject to any of the disabilities identified in the five numbered paragraphs, one becomes validly chosen but incapable of sitting – and it is at the point where the person becomes incapable of sitting that they are then subject to the disabilities mentioned, which is what engages 45(i) and the vacancy of the seat.

Section 45(i), in our submission, would not be engaged unless it is possible to have been validly chosen but then to become incapable of sitting. So the interaction of those two provisions in that way is inconsistent with reading the provisions as a singular condition. That is how your Honours very recently interpreted the interaction of 44 and 45 in Re Nash (No. 2) [2017] HCA 52, which I hope has been given to your Honours. If your Honours go to paragraph 33, the point is made:

Whatever the end‑point of the process of being chosen . . . a person has become a senator or member of the House . . . within the meaning of s 45 once that end‑point is reached. If the person thereafter becomes subject –

so that must mean validly chosen as a member –

to a disability mentioned in s 44, not only does s 44 operate –

That, in our submission, clearly indicates that 44 does operate in relation to a person who has been validly chosen.  Not only does 44 operate to prevent the person from sitting but 45 operates.  In other words, they both operate, which, we submit, is irreconcilable with the way that our friends invite your Honours to view the interaction of these two provisions.

If that be correct, then once it is recognised that a person who is already a Member of the Parliament can be the subject of the operation of section 44, as Nash at 33 expressly holds, the attempt to create a dichotomy along the lines that I have summarised between the operation of 46, reserving some matters for judicial power, and 47, leaving some matters to the exclusive cognisance of the Parliament breaks down. Once the person is within the Parliament but becomes incapable of sitting, that would, on our friends’ concession as to the matters within the exclusive cognisance, engage section 47 and it would be not for the judicial power but for the Parliament unless and until it otherwise provides to resolve the question of the capacity to sit.

Furthermore, the suggested singular condition generates a range of anomalies in our submission. In particular, it would be difficult to see why a failure to comply with section 34 of the Constitution – which is the qualifications rather than disqualifications – would be a matter that falls within matters within the exclusive cognisance of the Parliament under section 47.

Yet, in paragraph 12 of our friend’s submissions, they accept that one of the matters that falls within 47 is the section 34 question. So, section 34 qualifications are within the exclusive cognisance but section 44 disqualifications are not. It is, in our submission, not at all apparent why such a division of responsibility to determine and enforce those provisions of the Constitution would be created.

If your Honours could turn then to section 46, we make five points about this section. First, it is quite plain, textually, that the people who can bring a proceeding under this provision are any person who sues for it – in the last line and a half of the section:

any person who sues for it in any court of competent jurisdiction –

Our friends emphasise the words “any person” in the first line of the section and draw a parallel between “any person” in section 44 and “any person” in section 46 in an attempt to create some nexus between these two sections. In our submission, there is nothing in that point.

“Any person” is used in section 44 because it needs to apply not just to a Member of the House or a senator but also to a person who seeks to become a Member of the House or senator because unless persons in that second category are caught the “incapable being chosen” words do not have any sensible operation.  So, the words are used to accommodate the need to capture both persons seeking election and persons who obtain election but they do not have any other constructional significance.

The next point to point to make – second point about section 46 – is, your Honours will note there is no time limit. So, an action can be commenced by any person in a court of competent jurisdiction and we have identified in our written submissions what those courts would have been. There are quite a number of them at any time.

One might contrast that with the long history – going back to the middle of the 19th century in the United Kingdom when Parliament first allowed questions on electoral disputes to move out of its exclusive competence by creating the precursors to the current electoral petition provisions which uniformly impose tight time limits within the time when an electoral petition can be commenced.  It is normally a matter of weeks only for the purpose of ensuring that the composition of the Parliament is rapidly settled so that there cannot be ongoing uncertainty as to who is and who is not entitled to sit in the House.

One sees that and has always seen that in the Electoral Act provisions but there is nothing equivalent in section 47. Indeed, as that provision was first enacted, the incentive to bring a Common Informer action got larger the longer the delay because it was a fixed penalty of £100 per day for every day, so that the potential for uncertainty was actually magnified by the way the reward worked for the person who commenced a proceeding in the exercise of that jurisdiction.

Third, your Honours will note that the section opens with the words “Until the Parliament otherwise provides”. In our submission, that is a very powerful indicator against the idea that your Honour should read 46 and 47 as creating a dichotomy where questions of qualification under 44 are reserved to the judicial power and all other questions of qualification, vacancy and disputed elections are reserved to the Parliament because if the Constitution intended to enact a vote dichotomy dividing functions between the judicial and the legislature in that way, it would be more than passing strange for that dichotomy to be able to be destroyed by legislation that otherwise provides under section 46.

Indeed, not only would it be strange but if our friends are right that section 47 does not extend to the section 44 questions, then if Parliament otherwise provided under section 46 there would be no form where anyone could decide the section 44 issues. Parliament could not do it because it falls outside 47 and a court could not do it because Parliament is otherwise provided under section 46. That is, we submit, a strong indicator against the suggested division of function.

GAGELER J:   Mr Solicitor, this may be covered in your written submissions, but do you need to find a conferral of jurisdiction under section 76(1) or section 77 to be able to have a court of competent jurisdiction within the meaning of section 46?

MR DONAGHUE: Your Honour, I do not think we have covered that question. I think we have covered the equivalent question in relation to section 47 where the answer seems to be yes and one reads the Electoral Act provisions as also conferring jurisdiction under 76(1). In relation to 46, the provision appears to operate in its terms to allow such an action to be commenced in any court of competent jurisdiction without anyone taking any further step under sections 76 or 77.

GAGELER J:   You would have to first catch your hare, in a sense. You have to find a court of competent jurisdiction which, on one view, assumes or requires as a prerequisite really to the operation of the section the existence of a conferral of jurisdiction under sections 76 and 77.

MR DONAGHUE:   That may be right, your Honour.  If that is right, then it reveals that the great rush to enact the Common Informers Act was even more mistaken than it might have appeared.  As your Honours may know, it happened very fast.  It happened from the idea being raised to being enacted in less than one day out of the thought that Senator Webster was about to be exposed to an extremely large penalty under the provisions.  But if what your Honour just put to me is right – and I accept the force of it – it would have been impossible to bring a proceeding under this provision unless one could find a conferral of jurisdiction somewhere.  Now, I suppose it might be said section 39(i) or 39(ii) was the conferral of jurisdiction.  I would need to give some thought to that.

GAGELER J:   Or section 30(a) of the Judiciary Act which would give ‑ ‑ ‑

MR DONAGHUE: With matters arising under the Constitution, yes.

GAGELER J:   Yes.

MR DONAGHUE:   Well, that may be so.  Can I come back to that, your Honour?  That may be so.

GAGELER J:   Yes.

MR DONAGHUE: Certainly I think the point your Honour puts to me gives added weight to the idea that the bifurcation and the idea that section 46 ensures judicial superintendence of compliance with section 44 is even weaker because if it depends on parliamentary action to enable that judicial superintendence, that would be another indicator against the existence of that dichotomy.

KEANE J:   Another possibility is the court of competent jurisdiction is just concerned with matters of location and quantum.

MR DONAGHUE:   That is our submission, your Honour.

KEANE J:   On that footing that is all it does, that is all you need, because the deciding of the issue of qualification is elsewhere.

MR DONAGHUE:   Your Honour, you will understand that that is our submission.  That is exactly how we put it and, in those circumstances, obviously the function of the court is much more confined.  I do not know that that would answer Justice Gageler’s question about the source of the jurisdiction, but the nature of the task even when jurisdiction is conferred would be that very limited one that your Honour puts to me.

Our fourth point in relation to the text of section 46 is that one sees the words used there “declared by this Constitution” and our friends make a great deal of that language in suggesting that it is the task of this Court and this Court alone to decide what is declared by this Constitution and that that indicates that the matter is reposed exclusively to the judicial power. In our submission, one cannot take too much from the use of the word “declared” as necessarily evoking some concept of judicial power.

Indeed, the Constitution often uses the word “determined” in the context of judicial power as it does, for example, in section 73 in relation to the appellate jurisdiction, and yet “determined” is the word one finds in section 47 when identifying the matters that are to be decided by the House until the House otherwise provides.

By contrast, “declared” is used in the Constitution in many places not referring to ports so, for example, in section 49 in relation to the privileges of the House, the privileges shall be as “declared by the Parliament” and until so declared shall be those of the House of Commons. One sees in sections 58 and 85 - your Honours do not need to go to them – but matters being declared by the Governor‑General. So the language is used in terms that repose powers on the Parliament, powers on the Executive, powers on the courts.

Here, in our submission, when one has the phrase “declared by the Constitution”, that phrase is used not to signal a distinction between judicial and non‑judicial, but as a signpost to the provisions that intersect with section 46.

If your Honours engage in the experiment of reading the provision leaving out those words, it would read “Until the Parliament otherwise provides, any person incapable of sitting as a senator or Member of the House shall, for every day be liable to pay the sum of one hundred pounds”.

That would be language that would mean that, if anything, whether in statute or the Constitution, prevented a person from sitting then the penalty would be available. Section 46 does not work in that way because “declared by this Constitution” narrows the range of matters that may give rise to the liability. We say it does so by saying, “Look for a provision in the Constitution that expressly says” – and, in that sense, declares – “that a person is incapable of sitting”. When one looks for such a provision, one finds it immediately in sections 43 and 44, which both expressly provide that a person is incapable of sitting.

In our submission, when one is seeking to give meaning to those words, that is what they mean. They direct one to look for a provision where the Constitution says “you are incapable of sitting”. One readily finds those provisions, and they are the provisions the contravention of which then renders a person incapable of sitting. We think that is the better reading of it. That submission I have just put is a narrowing of the submission we put in writing, at paragraph 23, where we had read the provision as just meaning a person who is not qualified under the Constitution. On reflection, we think the better reading is the reading that I have just put to your Honours.

Fifth and finally in relation to the text of section 46 – it is not a particular textual point but it emerges from the section as a whole – one sees the nature of the proceeding that that section contemplates as a claim for the imposition of a fixed financial penalty in what is effectively an inter partes proceeding. Any person may commence the proceeding against the person who is incapable of sitting as a senator or a member. The result of the exercise of judicial power in a proceeding of that kind is not a ruling or a declaration as to the status of the person; it is an award of an amount of money.

In our submission, an inter partes proceeding of that kind is inherently unsuited to the authoritative determination of a question of status.  One can contrast that kind of proceeding with what one sees in the reference provisions of the Electoral Act, where there is a proceeding obviously intended to be a proceeding in rem that results in an authoritative declaration as to the status of the person and where the Court is given the powers it then needs to deal with the ramifications of that decision. 

If, to take an example, a Common Informer action was brought against a senator and the Court, as a step along the way, if it is able to – and we of course say it is not – rule on the qualification of a senator, the Court would publish a judgment where its reasons would reveal that the senator was not capable of sitting and it would then award an amount of money.

KIEFEL CJ:   If there is a requirement, as you say, for there to be some anterior determination of the qualifications of a Member of either House, what scope is there for the action contemplated by section 46 in terms of bringing a matter to the attention of someone – informing?

MR DONAGHUE:   It can be done, your Honour, in the same way that we submit it has occurred here.  So that what should happen, the proceeding can be commenced, but it cannot proceed to conclusion unless and until there has been a ruling by the body with authority to do so: Parliament or this Court as the Court of Disputed Returns ‑ ‑ ‑

KIEFEL CJ:   Hence your ‑ ‑ ‑

MR DONAGHUE:   Hence the stay.

KIEFEL CJ:   ‑ ‑ ‑ argument for a stay.

MR DONAGHUE:   Exactly, your Honour.

KIEFEL CJ:   So you say the proceeding is brought.  What jurisdiction does the court have at the point where the action is brought?

MR DONAGHUE: This, I suppose, raises Justice Gageler’s question. It is exercising federal jurisdiction in a matter arising under the Constitution to hear that claim.

KIEFEL CJ:   A claim for ‑ ‑ ‑

MR DONAGHUE:   Claim for money.

KIEFEL CJ:   ‑ ‑ ‑ the penalties to be paid.

MR DONAGHUE:   Yes.  But when it reaches the point where it is ready for hearing but it recognises that there has been no ruling on qualification from another body, it stays the proceeding until there is such a ruling.  I am going to take your Honours to an example in a case called Stott v Parker, where that is exactly what happened:  the court stayed the matter pending resolution by the House, and then I will take your Honours to a couple of examples.  That is how we submit that it works.

To return to my example:  if a senator in such a proceeding is found not to be capable of sitting, then there will be a financial award of the penalty to the plaintiff.  But how then does one fill the vacancy in the Senate that the court has identified?  There are not any of the machinery provisions about the ordering of a special count and the other powers that the court has under the Electoral Act that are normally used in order to respond to the fact that there has been a vacancy of this kind.

So the procedure does not really intersect with the kind of steps that one needs that you have in section 378 of the Electoral Act:  the capacity for the court, as it always does, to give notice to interested parties so that they can come and apply to be heard before the in rem determination of status is made.  There is no equivalent in relation to a common ‑ so the character of the proceeding also points against it being a proceeding where you can resolve the qualification question.

That, we submit, leaves the key issue that your Honours have already raised with me about who decides that a person is incapable of then sitting. It is there that we submit that section 47 provides the answer. It provides the answer largely because, when one looks at the concluding words of section 47:

shall be determined by the House in which the question arises.

It is very hard – indeed, we submit, impossible – to reconcile the idea that the Constitution, in providing that these three categories of questions shall be determined by the House, should be understood as meaning “shall be determined by the House or by a court” in a penalty claim under section 46. It is plainly not what the provision says. But if our friends are right and you can get a ruling on a qualification question under section 46, then those words at the end of section 47 miscarry.

There are a number of other textual indicators in section 47, in particular the terms in which the question is reserved to the exclusive cognisance of the Parliament are identified are very wide. So “any question respecting”, the word “any” is, in our submission, an obviously all‑encompassing word. It does not place any limit on the forum where the question arises. It does not require the question to be the ultimate question. It could be a question that arises as a step on the way to a conclusion, including in particular a step on the way to a conclusion as to vacancy.

So ultimate questions or not in any identified forum, the “any question” language is markedly wider than one sees in some other provisions.  Sections 23 and 40, for example, both just refer to questions arising, not any questions arising.

“Question” itself is a broad term, “question respecting” even broader, bringing in notions of sufficiency of connection of a kind analogous to those that arise in a section 51 context.  Then, as I have already emphasised, the words “shall be determined” at the end are naturally read as identifying the exclusive means by which those three categories of question can be identified unless and until the Parliament otherwise provides.

In our submission, that reading is supported by the familiar idea that the express specification of one mechanism impliedly negatives the others, the Boilermakers’ type idea. Section 47 expresses the same concept. By providing it shall be done in one way it is properly read as meaning it cannot be done in any other.

In terms of the relationship between section 47 and section 44, in our submission, when one reads in 47 the words:

any question respecting the qualification of a senator –

the ordinary and obvious textual meaning of those words is that it includes all of the disqualifications in section 44, that a question as to disqualification is a question respecting the qualifications. So textually we submit that that is the ordinary and obvious meaning of the provisions.

If it is put, as we think it is, by our friends that section 44 is not about people who are validly elected to the Parliament – and we may be wrong about that but if that is put, then we submit that a strong indicator against acceptance of that idea is that in addition to questions about qualification and vacancy 47 also deals with any question of a disputed election and a disputed election can obviously involve people who are not yet elected to the Parliament.

This Court held in Sue v Hill that those three categories of question overlap. So one of the bases upon which one can have a question about a disputed election is if it is said that one of the candidates for the election was not qualified by reason of section 44 matters. So Sue v Hill is authority for the proposition that a question about a disputed election can include a question about the qualification of a candidate under section 44.

So if it is being put by our friends that there is no intersection between the 47 matters and the 44 matters, that submission collides with Sue v Hill and cannot be reconciled with it.  In fact, this Court held in Re Wood – which is not on the list and your Honours do not need to go to it – but the Court held in Re Wood at page 157, that the jurisdiction conferred under section 47 accords with the jurisdiction which the House of Commons exercised with respect to elections, returns and the qualifications of its members.

If your Honours could go to Sue v Hill (1999) 199 CLR 462 and turn to Justice Gaudron’s reasons at paragraph 112 on page 507, where her Honour was addressing section 47 and, in particular, an argument that the reference provisions under 376 did not enable a question of qualifications to be ruled on ‑ sorry, that the disputed election provisions did not enable a question of qualifications to be ruled on. Her Honour said at 112:

Section 47 must be construed in its constitutional setting. In particular, it must be construed in the context of s 44 which stipulates, in its concluding words, that a person who is disqualified by reason of any matter specified in that section “shall be incapable of being chosen –

So, not only did her Honour say there is an intersection between 47 questions and section 44, her Honour identified 44 as the key part of the constitutional context that arose between those sections. Then, the joint judgment of Chief Justice Gleeson and Justices Gummow and Hayne, at paragraph 25, their Honours agreed with that aspect of Justice Gaudron’s reasons. So, again, if it is put that 44 issues are outside 47, that collides with that aspect of the reasoning in Sue v Hill. 

Further, if it be the case that section 47 – and, of course, if it is within section 47 – let me back up a step. The significance of all of this, of course, your Honours, is section 44 questions do fall within section 47, then they are matters that are within the exclusive cognisance of the Parliament unless the Parliament otherwise determines for the purpose of that section. This is why I am emphasising this point. And, we understand our friends’ case to be that 44 does not intersect with 47 so as to avoid that consequence. But, if section 44 questions do not fall within section 47, a highly anomalous consequence arises which is that Parliament could not – in otherwise providing for the purpose of section 47 – confer upon this Court the power to rule on section 44 issues.

I emphasise that because your Honours have regularly recently considered the position of people on references under section 376 who have never been validly elected to the Parliament.  That was the consequence of the conclusion the Court reached in all of the dual citizenship matters that have come before the Court over the last few months.

If those persons had never been validly elected to the Parliament, section 45 cannot have had anything to say about them. The only thing the Court was doing in ruling on those references was ruling that they were not validly chosen under section 44. None of those references would have been within the jurisdiction of the Court pursuant to a law that otherwise provided under section 47, if our friends are right. In other words, if 47 itself does not extend to section 44, a law that otherwise provides for the purposes of section 47 likewise could not extend to the 44 questions. So everybody has been proceeding on a rather mistaken construction of the provisions.

That all seems to point rather powerfully against the idea that 47 intersects only with 45.  It must be the case that the questions as to qualification that arise extend to the disqualification of a person who has sought election but was not validly chosen.

Section 47, in giving that function to the Parliament, unless it otherwise provides, did nothing more or less than reflect the long‑established common law position that matters of parliamentary qualification and disputed elections are within the exclusive cognisance of the House of Parliament. Blackstone made that point in a passage that your Honours have but I will not ask your Honours to turn to it. He fairly famously said that the whole of the law and custom of Parliament has its origins in one maxim: whatever matter arises concerning either House of Parliament ought to be examined, discussed and adjudged in that House to which it relates and not elsewhere. It was that idea that informs and explains the inclusion section 47 in the Constitution.

I promised to take your Honours to three cases that illustrate or bear out the idea.  The first is The King v The Governor of the State of South Australia (1907) 4 CLR 1497. This case is one of the series of Vardon–related cases and it arose after Justice Barton had found that the election of Mr Vardon to the South Australian Senate was void.  What then happened was that the Parliament of South Australia purported to fill a casual vacancy and appointed Mr O’Loughlin to sit as a senator, and Mr O’Loughlin took his seat.  Mr Vardon then sought mandamus to require the Governor of South Australia to issue writs for a new election to fill the place that had purportedly been filled pursuant to the casual vacancy that the South Australian Parliament had identified.

It was a mandamus claim before this Court, asserting that the Governor of the State was an officer of the Commonwealth.  The Court held that the Governor of the State was not an officer of the Commonwealth, so the mandamus claim failed for that reason.  Nevertheless it was plainly a matter that was within the jurisdiction of the Court.  The judicial power of the Commonwealth was engaged in this proceeding.

At the very end of the judgment, on the last page – this is Justice Barton delivering the judgment of the Court – and notwithstanding the fact that the Court clearly had jurisdiction, Justice Barton said, in the last paragraph of the judgment:

We refrain from expressing any opinion upon the other important and difficult question which the applicant desires to have decided. It seems to be clear that the question whether there is or is not now a vacancy in the representation of South Australia in the Senate is one of the questions to be decided by the Senate under sec. 47 “unless the Parliament otherwise provides.” Parliament can, no doubt, confer authority to decide such a question upon this Court, whether as a Court of Disputed Returns or otherwise. But until the question is regularly raised for decision we reserve our opinion upon it.

Now, this is 1907.  It is after the Judiciary Act provisions are passed, including the provision that your Honour Justice Gageler mentioned, 30(a), conferring jurisdiction in the Court in a matter “arising under the Constitution”. But the Court evidently considered that it should not enter on the question of whether or not there was a vacancy because that was a question that was exclusively for the Parliament under section 47. It was that passage that led directly to the enactment of the 1907 Act that introduced what is now Division 2 of Part XXII.

In the second reading speech to the 1907 Act they quote that paragraph and it is identified to Parliament that the High Court said that the Senate needs to decide, unless you pass a law that allows the High Court to decide –and Parliament did pass a law – that allowed the matter to be referred to the High Court in order to decide the question.

All of that, we submit, depends on the idea that whether or not Mr O’Loughlin, the person who had been appointed to the seat, was or was not validly in that seat was a question for the Parliament under section 47. It was not the case that section 47 was regarded as limited only to the case of people who had validly been declared elected to Parliament.

The Court approved that observation that I have just read to your Honours in Wood, the unanimous judgment of the Court in Wood at paragraph 1 at page 159, but the next case I want to take your Honours to is Stott v Parker [1939] SASR 98. Stott, as your Honours will see from the headnote, was a case that involved the Constitution of South Australia and if your Honours look at the very bottom of the headnote, in the last two lines you will see section 31 of the Constitution referred to, which provides that:

if any member of the House of Assembly become bankrupt . . . his seat in the House of Assembly shall thereby become vacant.

Section 43 of the Constitution then provided that:

“Whenever any question arises respecting any vacancy in either House of Parliament, it shall be heard and determined by the House in which the vacancy occurred” -

We submit the effect of section 43 was relevantly the same as section 47. What had occurred was that the Speaker of the House decided to withhold the member’s salary on the basis of the Speaker’s view that the seat had become vacant by reason of the member having become bankrupt and the member sought to enforce the payment of his salary by proceeding in the Supreme Court, contending that he was still a Member of the House and therefore still entitled to the payment.

The way the Court dealt with it ‑ and the Court divided.  The majority was Justices Napier and Richards.  If your Honours go to 103 in the middle of the page you will see that the argument advanced – I am reading just under halfway down:

But he contended, as Mr. Nelligan has contended, that the right given by the Payment of Members Act 1936 is a legal right, and that, for the purpose of determining the right of the plaintiff, the Court has jurisdiction to decide the question of title, which has arisen between the plaintiff and the Crown.

So, in effect, it is put that the determination of this question as to vacancy is a step along the way in determining whether or not I have a legal right to the payment and therefore you, the court, can decide that question as an element in my cause of action, in effect, which is very much what the plaintiff says here.  They say you can determine as a step in the penalty proceeding any question that necessarily arises in determining the right to the penalty and that that includes qualification.  The court rejected that argument.  At page 104 at about point 7 on the page, four lines down in the last paragraph:

It seems to me that to speak of the plaintiff’s right to sit and vote as a question which arises incidentally upon this claim for the statutory salary attaching to the office is to put the cart before the horse.  The question of title is not one which arises incidentally.  The very object of the petition is to procure this Court to decide the question of title ‑

The same might well be said here.  Then over the page on 105, point 5, the middle paragraph on the page:

The position as I see it is that the plaintiff's petition is cognizable by the Court, but we have no jurisdiction to determine the question upon which the right to the salary depends, and, until the House of Assembly has determined that question, by admitting or rejecting the plaintiff's claim to sit and vote, we cannot say that the plaintiff is, or that he is not, entitled to the relief claimed.  In my opinion, there should be a stay –

So that accords with what your Honour Justice Keane put to me and what the Chief Justice put to me as to how we submit the matter should be dealt with.  If your Honours turn on to page 107, this time in the judgment of Justice Richards at the bottom of the page, reading from the last two lines:

the proposition that the Courts are bound to administer the law of the land; but if there is an Act of Parliament which constitutes some body or person as the functionary for determining a certain question of fact whenever it arises, it is the law the land that it shall be so determined.

We submit section 47 is a provision of that kind. Of course your Honours do enforce the Constitution; you decide legal issues properly brought within the jurisdiction of the Court. But section 47 says that the body that determines these questions is the Parliament unless it has otherwise provided. So Stott, we submit, is a useful illustration of the appropriate approach.

The final case is a more recent decision, Ellis v Atkinson (1998) 3 VR 175. This is a decision under the Victorian Constitution. Your Honours will see at the start of the headnote a reference to section 19, providing:

that both Houses of the Victorian Parliament and their committees . . . held, enjoyed and exercised . . . the like privileges, immunities and powers –

of the House of Commons at 1855.  Then at the bottom of that paragraph in the headnote there is a reference to:

Section 300 of the Constitution Act Amendment Act provided for the referral by the Houses of Parliament to the Court of Disputed Returns of “[a]ny question respecting –

the same language as section 47:

the qualification of a member of or respecting a vacancy –

So, there is a reference provision.  Instead of using the reference provision, the plaintiff attempted to go directly to the Supreme Court to seek a declaration that a seat occupied by the defendant had become vacant.  So it was, in effect, rather than using the reference provision, just use the ordinary judicial power of a court to seek to have a ruling made on the question of vacancy. 

The way that that argument was answered – and it was answered on behalf of the defendant by Mr Merralls QC and supported by the then Victorian Solicitor‑General for the Attorney‑General intervening, your Honours will see summarised in the bottom of page 176:

The proposition –

that Mr Merralls:

advanced . . . put in its simplest form, is that this court does not now and never has possessed any jurisdiction of the kind asserted by the plaintiffs.  In support of this contention, reliance was placed upon what were asserted to have been long established and deeply entrenched constitutional relationships between Parliament and the courts . . . for the balance that it was asserted has been struck and under which issues relating to the qualification of a sitting member of Parliament to occupy his or her seat –

which was said not to be justiciable.  Justice Vincent accepted that argument, having reviewed a body of useful historical material that I will not take your Honours through now.  But, if your Honours go to 179, halfway down the page, at line 21, Justice Vincent said:

Without attempting to embark upon a review of the turbulent history of the relationships between the monarchy, parliament and the judiciary which extended over several centuries . . . it is apparent that Parliament had been concerned to protect itself against what it regarded as unacceptable executive or judicial intrusion throughout the whole of the eighteenth and the first half of the nineteenth centuries.  It asserted and was accepted to possess the exclusive power, subject of course to the operation of its own enactments, to determine all questions concerning the qualification –

That is then supported by reference to Erskine May, Holmes v Angwin in this Court.  So, without reading to your Honours, I rely upon 179, 180, 181 – in particular that whole discussion.

So, it is another case illustrating acceptance of the exclusive cognisance of Parliament unless it is otherwise provided to resolve disqualification questions. It is quite directly inconsistent with the idea advanced by the plaintiffs that this Court can simply, in the exercise of its ordinary jurisdiction under section 76(i), decide section 44 questions. If the Court can do that, it can do the very thing that section 47 says is exclusively for the Parliament unless the Parliament has otherwise provided under that section.

KIEFEL CJ:   Do you say the Houses retain the power to determine questions under section 47 even given the provisions of the Electoral Act?

MR DONAGHUE:   I need to distinguish between elections on the one hand and qualifications on the other.  With respect to disputed elections, I do not say that power is retained.  The Parliament in Division 1 of Part XXII has said “decided by the Court of Disputed Returns and not otherwise” so that that function is exclusively vested in the Court.  By contrast with qualification questions, Parliament has simply said “may refer” and it is evident from the second reading speeches at the time that that was intended to allow Parliament the option of referring the question to this Court or deciding the matter itself. 

Finally, your Honours, can I take your Honours briefly to the relevant parts of the Convention Debates which demonstrate that the framers were entirely alive to the principles of exclusive cognisance on which I have been addressing the Court and that there is nothing at all in these debates which would lend any support to the idea that there was an intended bifurcation between matters exclusively within the judicial power under section 46 on the one hand and matters within the scope of Parliament’s judgment under 47.

Starting with the Adelaide debates in April 1897, 15 April 1897, if your Honours could turn to page 680 you will see in the right‑hand column, about a third of the way down, a reference to clause 20. At this stage of the drafting, the draft Constitution dealt separately with the Senate and the House of Representatives but that is a provision that is evidently the precursor of section 47 in relation to the Senate. You see just under there an amendment made to change “disputed return” to “disputed election” - that now being the language used.

The debate that was occurring on pages 680 and 681 was a debate about whether or not the words “High Court” should be substituted for “Senate”. So the Convention was debating whether the Constitution should provide that these questions should be determined by this Court. So you see the amendment moved at the bottom of page 680.

Mr Barton indicates at the top of 681 that the matter had been the subject of very considerable discussion in the Constitutional Committee and that this clause was the result of that discussion and Mr Barton records there were a good many people who thought that these questions should be decided by judges but that there were others who thought that it was best to allow Parliament to determine it.  Then, in the middle of the left‑hand column, Mr Barton said:

It seems to me that it is a matter for the Parliament of the Commonwealth to determine whether the Houses, after they are called together, shall determine this question, or whether the Judges should do it.  It is a matter for the Federal Parliament to deal with.  It increases the freedom of action of the Parliament –

Then Mr Reid says, that is a matter of great regret, it would be better to put it to the judiciary, but that was not the position that was reflected.  There was evidently conscious engagement with this very topic.  Mr Wise then, at the bottom of page 681, drew a distinction between questions of qualification and vacancy on the one hand and disputed returns on the other.  I think probably the extract that your Honours have stops at the bottom of that page, but the suggestion was that disputed elections should go to the courts; qualifications and vacancies should stay with the House.

When the Convention returned to this topic just one week later, on 22 April 1897, at page 1150, that distinction that Mr Wise had drawn was picked up.  At the bottom of the left‑hand column on 1150 your Honours will see that there was a proposal to add a new clause following clause 48:

Until the Parliament otherwise provides all questions of disputed elections arising in the Senate or House . . . shall be determined by a Court –

So the contemplation was that Parliament would retain exclusive cognisance of qualification of vacancy questions but the Constitution would allocate directly to the Court jurisdiction in relation to the elections. Your Honours see that at the top of 1150, Mr Kingston asked:

Is it for disputed return only?

Mr. BARTON:  Yes; vacancies and qualifications are left in both Houses.

So that was adopted at that time in Adelaide.  The Convention then broke.  They returned six months later in Sydney, in September 1897, which your Honours have at pages 464 and 465.  At 464, on 13 September, the Convention was dealing with some suggestions for an amendment that had been made by various legislatures, including here the legislature of Tasmania, which wanted to insert back into what was then 43, the reference to disputed elections. 

So disputed elections had been cut out of that clause and put into the new provision I just showed your Honours, but the Tasmanians were suggesting adding it back in again.  The debate was mainly about whether there was anywhere that would be able to decide questions of disputed elections in relation to the very first election to the federal Parliament where there would not have been any conferral of federal jurisdiction because the Parliament did not yet exist.  Mr Barton indicated on 465:

I am inclined to be converted by what has been urged –

Mr Wise objected because it was collapsing the distinction that he had earlier proposed should be drawn and that had been reflected.  You see that particularly in the right‑hand column on page 465, where Mr Wise is explaining the rationale.  At about point 4:

the reason clause 50 –

which was the new 48A:

was introduced was because it was thought that where the rights of the electors were in any way infringed . . . the matter was one for the courts.  Where it was merely a question of internal discipline—if I may use the expression—of Parliament itself to determine the qualification of a member who had done anything which, under the standing orders, or under the constitution, required his seat to be declared vacant, that was a matter for the house itself.

Ultimately, at the end of that whole debate, it was decided, as you see at the bottom of the page, to leave the question in the hands of the drafting committee, and what ultimately emerged from the drafting committee was section 47. There is no explanation for how one gets from the new clause 50 in that debate to the text that we have. But, evidently, section 47 dealt with elections, qualifications and vacancies all together and put them all in the hands of the Parliament.

There is very little discussion in the debates of section 46. You do see on 21 September 1897 – this is at page 1034 – a suggestion by Dr Quick that the penalty should be removed from the provision. It was said that the existence of the penalty suggested it was “a blot on the bill” – that is the phrase used at the bottom of page 1034, in the left‑hand column. It was pointed out that penalties had been removed from some other parts of the Constitution. Mr Barton agreed with the point, but said:

as we will be adjourning in two minutes I will ask him to leave the matter to the Drafting Committee.

But ultimately, again, it was not picked up, so the penalty remains in section 46. But what one does not see is any suggestion that 46 was to be some exclusive mechanism for determining questions of qualification in relation to some categories of person and that section 47 did not intersect with questions of qualification on the other.

If section 47 does intersect with section 44 then, in our submission, our friend’s case collapses because once it is accepted that those issues are within the exclusive cognisance of the relevant House, it cannot be the case that those issues could have been determined from the outset in an exercise of jurisdiction under the Common Informers Act.

I will not take your Honours to it in light of the time but if I could just give your Honours a reference to the case of Roe v Leake which is a pre‑Federation Common Informer decision.  There are not many of these.  They seemed not to exist at all – Common Informer actions in relation to qualifications in the UK prior to Federation.  There are a few cases post‑Federation.

In Australia there are hardly any.  They all ultimately turn on the statutory scheme and we submit that that makes sense because if one starts from the proposition that these matters are within the exclusive cognisance of the Parliament the question is always going to be, to what extent has Parliament given up that exclusive cognisance by creating some capacity to bring a private right of action.  That, ultimately, turns on the close construction of the legislation as enacted. 

But Roe v Leake is another example – in the context of somewhat analogous constitutional provisions – where the Court held consistently with your Honour Justice Keane’s suggestion to me earlier that it was not part of the role of the Court in deciding the Common Informer claim to decide the qualification question.  That was a matter for Parliament and the role of the Court was much more limited.  So, it is another illustration of the appropriate approach.  Your Honours, that is what we seek to say in support of our proposed answer to question 1, unless the Court has any questions.

KIEFEL CJ:   Yes.  Thank you, Mr Solicitor.  Yes, Mr Reynolds.

MR REYNOLDS:   Thank you, your Honour.  I assume your Honours have a copy of our synopsis of argument.

KIEFEL CJ:   Yes, thank you, Mr Reynolds.

MR REYNOLDS:   I do not know if your Honours would like a moment to review it.

KIEFEL CJ:   I think you can proceed.

MR REYNOLDS:   Your Honours will see from the summary of argument that the approach that we have taken in relation to both questions is to put what one might call, first of all, a positive argument.  That is, for example, paragraph 1.1.  Then, in paragraph 1.2, we respond directly to the arguments, as we understand it, that are put against us.

Can I ask your Honours, if it is convenient, to have a copy of our written submissions at your elbows, and probably also Mr Alley’s, at least, as well? Can I deal with the first question first? Your Honours will see from our outline that we make a number of points. This is in (i) through to (xi) in paragraph 1.1. We start with a couple of very basic propositions – the first being that section 47 enacted in specific terms a well‑established privilege of Parliament that determination of the qualifications of MPs is to be adjudged by the relevant House. In section 47, the draftsmen of the original Constitution chose not, at that point, to place any qualification on the terms of section 47, otherwise than, of course, the provision about until Parliament otherwise provides.

The second point we make, and it is a point which the Solicitor has already touched on, is that when one looks at the terms of section 47 it is mandatory and as the judges call it in Stott, quite peremptory and exclusive. It contrasts, for example, if your Honours have section 47 to hand, with the very general provision in section 49 which is in entirely general terms. The original draft for another Constitution took the trouble specifically to enact this particular privilege in the terms in which it appears in section 47 and they did, as the Solicitor has noted - drafted it using words of amplitude - they used the words “any”; they used the words “respecting”.

Now, I accept those first two propositions are fairly basic and do not take me very far but the third point that we make, we submit is of particular significance in this context and that is we put the proposition, as we have put it in our written submissions, that Parliament’s privileges will only be ousted by clear and unmistakable language. 

If I can trouble your Honours to refer to our submissions at this point, we have gathered some of the cases on this in paragraph 14 of our submissions and, your Honours, I suggest, will be struck by the sort of language that is used there.  For example, Justice McPherson, and this is in paragraph 14, fourth line, referred to “unmistakable and unambiguous language”. 

The case that is most often quoted is Duke of Newcastle v Morris which talked about a special clause distinctly abolishing the privilege.  In Hammond in this Court, there is a reference to “unmistakable language”.  In Harvey v New Brunswick, although your Honours do not have the passage, the judges talk about “express words”. 

In the last case in that paragraph which we have not quoted, Chamberlist v Collins, the judges were actually talking there about the privilege relating to parliamentary membership and they said at the page we have referred you that the courts have nothing to do with questions affecting Parliament’s membership except insofar as they have been specially designated by law to Act in such matters.  Now, on no view can it be said that the Common Informers Act amounts to such clear and unmistakeable language and nor do we understand Mr Alley to contend otherwise.

The next point that we make – and I would ask your Honours to excuse the staccato approach, but I have a fair bit to get through in only a small time – is that there is not an express ouster of section 47 in the terms of the Common Informers Act. In that regard, the contrast with the approach that the Parliament took to section 46 is rather eye‑catching.

The major premise answer though, is that it is not right to look at section 49 instead of section 47 and one again sees that from Sue, if you go to paragraph 36, where again in the joint judgment of the Chief Justice and Justices Gummow and Hayne, in the middle of page 483, having noted Chief Justice Dixon’s observations in Fitzpatrick, their Honours say:

Had specific provision with respect to disputed elections not been made by s 47 of the Constitution, such matters may have fallen within the general provisions of s 49 -

which is then quoted and then their Honours go on, halfway through the next paragraph - so the point is made that if it fell within 49 it may have fallen outside of Chapter III:

This would have had to have been so, even though a dispute concerning the operation of s 49 would have otherwise been a matter arising under or involving the interpretation of the Constitution within the meaning of s 76(i).

So again it is the same idea, as one sees in paragraph 5, that these are matters that, if within these specific provisions of 47 and 49, cannot be dealt with otherwise.  The reference to “specific provision” in paragraph 36 rather indicates, in our submission, that their Honours treated the relevant source of authority with respect to deciding questions of qualification and vacancy as 47 and not 49.

In that regard, we also note that, even if what I just submitted is wrong and one were looking at the position as at 1900, it is not the case that the Constitution simply continued whatever the law happened to be with respect to the House of Commons as at 1900 because it is plain that on the commencement of section 47, the position in the United Kingdom would have changed.

I say that because, as our friend’s submission made clear, from 1868 it was the courts that had jurisdiction in relation to disputed elections. But from the commencement of section 47, quite plainly the courts did not have that jurisdiction unless and until Parliament otherwise provided for the purposes of section 47, which it did in 1902 when it enacted what is now Division 1.

It is not, in our submission, really to the point to look at what the position was in the UK as at Federation. One has to look at the text of section 47 and what it tells us about what matters were reserved exclusively for the Parliament. When one does that and considers the question of the laws that have been passed pursuant to that provision - one sees the Electoral Act provisions that Mr Walker focused on a little before lunch. Your Honours were taken to quite a number of passages in Sue v Hill suggestive of an ample interpretation of those provisions and it is said there is no reason you should not give an equally ample interpretation to the Common Informers Act.

In our submission, that is not right for this reason. When, in construing a law that otherwise provides for the purpose of section 47, one does not confine or read down that law so as to avoid interfering with the matters exclusively conferred upon the Parliament under section 47 - you cannot confine a law that otherwise provides by reference to the law that it is replacing.

By contrast, when one reads a law that otherwise provides for the purpose of section 46, one naturally reads it, in our submission, so as not to involve cutting across a matter that is exclusively assigned to the decision‑making authority of a different body. So that the interpretative approach that one sees in Sue v Hill with respect to laws that otherwise provide under 47 does not translate to the interpretation of the Common Informers Act.

With respect to the relationship between sections 44 and 47, I made some somewhat tentative submissions this morning on what we understood our friend’s case in that respect to be. Our friend indicated that we got that wrong and that it is no part of his case to submit that section 44 questions do not come within section 47. He said they are naturally wrapped up within 45 and that they do. We are happy to meet the case on that basis.

If that is the case, then it follows that what is being put is that at the time of Federation a court under section 46, as part of exercising its jurisdiction to decide whether or not to award a penalty, could decide a question of qualification, being a question that the very next sentence of the Constitution says:

shall be determined by the House –

We submit that cannot be right. Reading the two sections next to each other, the Constitution cannot have spoken in inconsistent terms as to who was to have authority to decide questions of that kind.

I mentioned Erskine May and the extract our friend provided to your Honours.  He focused on page 613 which goes right back to 1770 and talks about the problems that arose with Parliament determining questions of disputed election at that time.  Without taking your Honours through it, the discussion from 613 through to 618 is about the development in England of electoral law concerning disputed elections including the 1868 Act.  But, if your Honours have the extract and you go to the bottom of page 618, you see, about seven lines up from the bottom, having referred to the 1868 Act about challenges to returns by petition, the learned authors then say this:

otherwise the house uniformly exercised its constitutional jurisdiction.  And such continues to be the position of the house, after the judicature of its election committees had been transferred to the judges.

Then, over the next few pages, you see a number of examples of the House exercising that very authority in relation to qualifications.  So, while it is true that Division 1 functions have been shifted to the courts as has occurred here, Division 2 functions had not.

Finally, your Honours, in our friend’s submissions, there is a long quote from the second reading speech to the Common Informers Act at paragraph 27 which is identified as the second reading speech.  In fact, the first paragraph of that long quote is the second reading speech.  The balance of that paragraph are remarks that the Attorney‑General made at the end of the debate, after there had been a number of contributions from other members of the debate.  Then, in wrapping up the debate, the Attorney said the things that are quoted in paragraph 27. 

Your Honours will give that matter such weight as you think it deserves, but it is not a reference of the kind that the Acts Interpretation Act directs attention to, which refers to the second reading speech rather than other speeches given in the debate.  One might expect, based on ordinary

experience, that remarks made in debate rather than the official speech are likely to be more ad lib or ad hoc, which explains in part, in our submission, why the Acts Interpretation Act focuses as it does upon the text of the second reading speech but not on other remarks given in Parliament.

Ultimately, your Honours, the question comes down to, in our submission, whether our friends can make good the proposition that that Act passed in 1975, in circumstances that attract the language of section 46 in “declared by this Constitution to be incapable of sitting” and which it is clear, both from the text of the Act itself and from the debate, were intended not to abolish but to dramatically confine what was previously provided in section 46 by cutting down the penalty, by cutting down the time limit, by cutting down the courts in which such actions could be brought, all of those things were undoubted features of the 1975 Act.

Whether your Honours are persuaded that in addition to cutting down in those ways the Act should be read as conferring a jurisdiction that to decide questions of a kind exclusively reposed in the Parliament under section 47 and your Honours could, in our submission, reach that conclusion only if you conclude that the Act otherwise provided for the purposes of section 47 which, in our submission, you should not do, given the way the case has been conducted.

Finally, and very briefly, your Honour Justice Gageler’s question about jurisdiction.  After 1903, we agree with what Mr Walker put certainly, but pre‑1903 the position is a little more complicated.  We think the better answer, channelling here some of the issues that your Honours heard last week in relation to Burns v Gaynor, is that the belonging jurisdiction of a State Supreme Court included some of the questions of the kind identified in sections 75 and 76 of the Constitution by reason of the fact that covering clause 5 made the Constitution binding upon the courts of the State.

In that interim period, in our submission, the belonging jurisdiction of the State Supreme Courts, or the State courts more generally, would have entitled them if otherwise courts of competent jurisdiction – so with respect to the relevant money limits, for example, to entertain an action under section 46. That is what we said in footnote 72 of our written submissions in paragraph 41. Unless the Court has any questions, those are our submissions.

MR REYNOLDS:   If the Court pleases, I have nothing in reply.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns until 9.45 am tomorrow for pronouncement of orders and otherwise until 10.15 am.

AT 3.44 PM THE MATTER WAS ADJOURNED