Re Robert John Day AO: section 44(v) of the Australian Constitution revisited

In February 2017, the High Court of Australia will sit as the Court of Disputed Returns in Re Day to consider five questions referred to it by the Australian Senate about s 44(v) of the Australian Constitution and the position of the former South Australian Senator, Robert Day AO. The reference is a rare opportunity for the High Court to consider how s 44(v) should be interpreted and applied, as it has only been considered once before by the Court — in 1975 in Re Webster. This column argues that the interpretation adopted in Re Webster does not adequately take account of the provision’s anti-corruption purpose. Based on the drafting history of s 44(v), we propose that it should be interpreted so as to disqualify a person who has a pecuniary interest in an agreement with the Public Service of the Commonwealth that creates a real risk of conflict between that person’s private interests and their public duties as a parliamentarian; or where there is a real risk that the person has used his or her position as a parliamentarian to obtain an improper financial advantage. If the Court adopts our proposal, it is likely that Mr Day will be disqualified by s 44(v).