Warren Entsch and the Government will not like yesterday’s High Court ruling.
On June 10, the Attorney-General Daryl Williams moved in the House of Representatives that “”The House determines that the member for Leichhardt [Entsch] does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of Section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998, and the member for Leichhardt is therefore not incapable of sitting as a member of this House.”
It was an attempt to oust the possibility of a Labor High Court challenge to Mr Entsch’s continued sitting in the House.
Mr Williams was relying on Section 47 of the Constitution. It says that “”until the Parliament otherwise provides” the House can determine any question about the qualification or disputed return of a member of the House.
Yesterday, the High Court ruled that the Parliament has otherwise provided. It did so in the Electoral Act. That Act provided (in a fairly woolly and indirect way) that it was for the court to determine questions arising out of the constitutional provisions relating to disqualification.
And even if the Electoral Act did not provide it, the court said that deciding the sort of questions that would arise in an Entsch challenge would be deciding “”constitutional facts, and the determination of constitutional facts is a central concern of the exercise of the judicial power of the Commonwealth”.
In short, the Government’s motion on June 10 to be a judge in its own court would not cut much ice with the High Court.