Sunday , November 18 2018
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Yet more High Court absurdity

Summary:
In the latest Section 44 news, it’s being suggested that three more MPs or candidates may be ineligible, two because they are doctors and one because they hold shares in a pharmacy business which is a partner in a Linkage project with the Australian Research Council. For those who aren’t in the research business, the Linkage program involves research which is jointly funded by the ARC, a University and an industry partner.in this case the pharmacy business. That is, the crime allegedly committed by this MP consists of (indirectly) giving money (or support in kind) to a government program, in the hope that the resulting research will be useful to their industry in general or to society as a whole. (Work done for the private benefit of a particular business would not normally be

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In the latest Section 44 news, it’s being suggested that three more MPs or candidates may be ineligible, two because they are doctors and one because they hold shares in a pharmacy business which is a partner in a Linkage project with the Australian Research Council.

For those who aren’t in the research business, the Linkage program involves research which is jointly funded by the ARC, a University and an industry partner.in this case the pharmacy business. That is, the crime allegedly committed by this MP consists of (indirectly) giving money (or support in kind) to a government program, in the hope that the resulting research will be useful to their industry in general or to society as a whole. (Work done for the private benefit of a particular business would not normally be eligible; it would be undertaken as a consultancy). On this basis, a volunteer at (say) the Commonwealth could be disqualified for using government resources.

Doubtless, the defenders of the High Court will rush to say that no such nonsensical inference can be drawn. But, if they had a shred of intellectual honesty, they will admit that, before this nonsense began, no one had ever contemplated the absurdities we have already seen.

The other defence that used to be offered was that MPs with s44 problems should have checked the rules. It ought to be obvious by now (but probably won’t be, given the human propensity for bloody-minded adherence to a fixed position) that no-one can check on the rules. Suppose you are, say, a bank clerk, and the local council banks at your branch. On a literal reading, which is the only kind on offer from this High Court, you would seem to be doing business with the government, and would be forced to quit your job rather than taking leave. Your case is even worse if your employer converts you into a contractor with a business that might continue while you served in Parliament.  Perhaps, based on past precedent, the court would let you off, but perhaps not.

There’s no easy way to fix this. Perhaps people will get sufficiently tired of this nonsense that the massive obstacles to a referendum might be overcome, but I doubt it. The only encouraging sign is that, so far, every member disqualified by the mischief-makers on the Court has been re-elected. Perhaps a few more pointless by-elections will produce some popular resistance.

In any case, the real problem is with the High Court’s entire approach to constitutional interpretation, based on the same kind of literalism that Garfield Barwick used to subvert the taxation system in the 1970s. Barwick was slapped down by changes to the Acts Interpretation Act, but Parliament can’t, I think, tell the Court how to interpret the constitution.  The only solution would be to replace existing justices as they retire, with followers of Lionel Murphy who would start from the commitment to a democratic government and strike down any interpretation (such as the disqualification of most of the population from election) that is inconsistent with that.

John Quiggin
He is an Australian economist, a Professor and an Australian Research Council Laureate Fellow at the University of Queensland, and a former member of the Board of the Climate Change Authority of the Australian Government.

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