Constitutional Law (Cth)—Parliamentary elections—Disqualification from being chosen or of sitting as senator—Person who has direct or indirect pecuniary interest in agreement with Public Service of Commonwealth—"Agreement"—"Pecuniary interest"—The Constitution (63 &64 Vict. c. 12), s. 44 (v.) Parliamentary Elections (Cth)—Disqualification from being chosen or of sitting as senator—Person who has direct or indirect pecuniary interest in agreement with Public Service of Commonwealth—Senator a shareholder and director of timber company—Submission by company of quotation to Commonwealth Department for supply of timber—Whether offer or invitation to treat—Agreement by Department to order such quantities as may be required—Whether a standing or continuing agreement—Placement of individual orders—Agreement—Pecuniary interest in agreement—Whether shareholder has interest in company's agreements—Commonwealth Electoral Act 1918-1973

Decision

June 24.
BARWICK C.J. delivered the following written judgment:-
Questions as to the eligibility of a senator to be chosen and to sit in the Senate having arisen in that House of the Parliament, the Senate resolved that the questions be referred to the High Court of Australia for its decision as the Court of Disputed Returns, so constituted under s. 184 of the Commonwealth Electoral Act, 1918-1973. That provision is authorized by ss. 47 and 51 (xxxvi.) of the Constitution. The question is whether the senator at the relevant time had any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons, contrary to the provisions of s. 44 (v) of the Constitution. (at p274)

2. In conformity with s. 204 of the Commonwealth Electoral Act, the President of the Senate sent to the Principal Registrar of this Court a statement of the questions upon which the determination of the Court was desired together with papers, proceedings, and documents relating to the questions. The questions posed by the Senate are: (a) Whether Senator Webster was incapable of being chosen or of sitting as a senator; and (b) Whether Senator Webster has become incapable of sitting as a senator. The papers, etc. are:

Journals of the Senate -
No. 64 of 15th April 1975 - Entry 4, at p. 597.
No. 65 of 16th April 1975 - Entry 13, at p. 605. No. 67 of 21st April 1975 - Entry 14, at p. 618. Notice Papers of the Senate - No. 64 of 16th April 1975, p. 2045. No. 65 of 17th April 1975, p. 2075. No. 66 of 21st April 1975, p. 2107. No. 67 of 22nd April 1975, p. 2139. Extracts from Senate Debates - 16th April 1975. 21st April 1975. 22nd April 1975. (at p275)

3. But these papers and documents do not contain any material upon which the questions could be decided: there were no relevant facts found or properly evidenced. This was not due to any default on the part of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Webster

Details

AGLC: Re Webster [1975] HCA 22
Case: [1975] HCA 22
Decision Date: 24 June 1975

CaseChat Overview and Summary

In *Re Webster*, the High Court of Australia considered an application for a writ of prohibition to prevent the respondent, a magistrate, from proceeding with a committal hearing against the applicant. The applicant sought to prohibit the magistrate from continuing the committal proceedings on the grounds that the evidence presented by the prosecution was insufficient to establish a prima facie case against him.

The central legal issue before the High Court was whether a magistrate, at a committal hearing, has the power to refuse to commit an accused for trial if the magistrate is of the opinion that, on the evidence presented, no jury properly instructed could convict the accused. The court was required to determine the scope of the magistrate's discretion and the standard of proof necessary to justify committal.

Barwick C.J. held that a magistrate's function at a committal hearing is not to determine guilt or innocence, but rather to ascertain whether there is sufficient evidence to establish a prima facie case. His Honour stated that if there is some evidence upon which a jury, properly instructed, could convict, the magistrate must commit the accused for trial. The court reasoned that the role of the magistrate is to filter out cases where there is no reasonable prospect of a conviction, not to act as a preliminary judge of fact. The High Court ultimately dismissed the application for prohibition.

Orders