Deakin University
Browse

File(s) under permanent embargo

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

journal contribution
posted on 2017-03-01, 00:00 authored by Oscar RoosOscar Roos, Ben SaundersBen Saunders
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).

History

Journal

Sydney Law Review

Volume

39

Pagination

123-134

Location

Sydney, N.S.W.

ISSN

0082-0512

eISSN

1444-9528

Language

eng

Publication classification

C1 Refereed article in a scholarly journal, C Journal article

Copyright notice

2017, Sydney Law Review and authors

Issue

1

Publisher

Faculty of Law, University of Sydney