Parliamentary Disqualification for Financial Conflicts

Abstract

When should holding a pecuniary interest bar someone from election to or service in parliament? In ousting Senator Day for breaching s 44(v) of the Constitution, the High Court overruled a long-standing narrow interpretation of that potentially unruly provision. This article seeks to situate the law involved in both its litigational history and in the broader policy question of managing MPs’ financial interests. Hovering behind all this is the problem of the inflexibility of constitutionalising barriers to election and parliamentary service (a problem which engulfed the Australian Parliament in 2017). Section 44(v) bars, from being elected or sitting in the Australian Parliament, anyone who: has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth [otherwise than as a member of a company of 25 or more people]. The article is structured chronologically. It moves from the narrow reading of s 44(v) by Barwick CJ in Re Webster (1975), on to the broader reading of the High Court in Re Day (No 2) (2017) and the procedurally strangled claim in Alley v Gillespie. It concludes with reflections on the value of a hard but fuzzy constitutional disqualification like s 44(v). Given the rise of pecuniary interest registers and the unfairness of applying disqualification rules to mere candidates, a better, more flexible approach is advocated here. Such an approach would see Parliament set and audit rules about the dealings of serving MPs with the Commonwealth of Australia. That process would involve the assistance of an independent agency such as an Integrity Commissioner. MPs would be suspended, not disqualified, whilst they dealt with any significant conflicts of interest.