How deep is the shlook that Warren Entsch is in?
I use the word shlook because that was the word used by Opposition Leader Kim Beazley in the House on Thursday last week. Schlock is low-grade material, rubbish, particularly low-grade entertainment.
But Mr Beazley was more interested in its depth than shallowness. And it is quite deep, despite the best efforts of Prime Minister John Howard and Attorney-General Daryl Williams to extract him from it (the low-grade material, that is).
It is fairly apparent that Entsch breached Howard’s code of conduct for minister’s, but as the code is administered by Howard himself, and Howard regard the breach as a technical slip nothing will happen on that score.
By Entsch is also in trouble over the constitutional provision about MPs not having agreements involving pecuniary interests with the Public Service. We know that Entsch owns one of two shares with Cape York Concrete Pty Ltd which in turn contracted with the RAAF for $175,000 to mix and provide concrete.
The question is whether that is a breach of Section 44(v) of the Constitution which would be the end of Warren Entsch as Member for Leichhardt, leave out his ministerial role.
On Thursday Howard and Williams tried to save Entsch from the Constitution. Williams moved, and the House passed, a motion that “”The House determines that the member for Leichhardt 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.”
Williams should have known better.
It is not for the House of Representatives to interpret Section 44 of the Constitution. This is basis separation-of-powers law. The Constitution says (in Section 71), “”The judicial power of the Commonwealth shall be vested in . . . the High Court”. The judicial power includes the interpretation of laws, including the Constitution itself, and the application of those laws to particular cases.
That role cannot be usurped by either House of Parliament or the Executive. The High Court would not take very long to deal with that point. It would simply say that it is for the court to determine if Entsch is disqualified as an MP, not for either House to determine it.
A good example is the Dissolution of the Communist Party case. The Communist Party Dissolution Act provided, “”Where the Governor-General is satisfied that . . . the continued existence of that body of persons would be prejudicial to the security and defence of the Commonwealth . . . the Governor-General may, by instrument published in the Gazette, declare that body of persons to be an unlawful association.”
(For “”Governor-General” read Government.)
The High Court said the Constitution allows the Parliament to make laws with respect to “”defence”. But it is not for the Government to determine what “”defence” is. That is a matter for the court. So a law like this one relying on the Government deciding whether something threatens the defence of the Commonwealth is not a law with respect to “”defence”. And as the law did not fit any other head of Commonwealth power it was held to be invalid.
In short, the Government or a House of Parliament cannot be the interpreter of the Constitution.
The Williams motion on Thursday was ineffectual wind that the court will take no notice of.
Just as it was for the court objectively (not the Government subjectively) to determine whether an organisation threatened the defence of the Commonwealth within the meaning of the Constitution, so it is for the court objectively (not the House subjectively) to determine whether Entsch is disqualified as an MP within the meaning of the Constitution.
The ineffectiveness of the House’s motion does not of itself does not damn Entsch. The court would still have to decide itself whether Entsch was in breach of Section 44 (v).
The section reads:
Any person who has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of twenty-five persons shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
Williams argued that Entsch was not in breach.
He said, “”If one contemplates that for a minute, one can see what nonsense it is. If one buys a stamp, one has a direct dealing with the Commonwealth. If one buys a ticket on a Commonwealth train, one has a direct dealing with the Commonwealth.
Williams cited Webster’s case which was decided by Chief Justice Sir Garfield (“”when you’re in trouble send for”) Barwick, sitting alone, in 1975.
(As an aside I point out that Senator Webster was represented by our present Governor-General, then Mr W. P. Deane QC.)
Webster was a shareholder, director and secretary of J. J. Webster Pty Ltd. That company supplied timber to the Commonwealth after winning a tender. Barwick ruled that to breach the Constitution you needed a continuing relationship in the form of an on-going agreement as distinct from a one-off purchase now finished.
That arguments seems to me foolish: if you catch the MP part way through the contract he is gone. But if you don’t catch him till later he is OK.
Secondly, Barwick ruled that the agreement had to be one that gave the MP financial gain that would conceivably render him to be influence by the Crown in the conduct of his parliamentary affairs,
That argument, it seems to me, comes out of the air. And Barwick as good as said as much by admitting there was no authority for it. At least there was none against it.
There is nothing in the words of the Constitution that says the agreement must be continuing, or that it must have the element of influence over the MP. To the contrary, the Constitution talks about direct (ital) or indirect (end ital) pecuniary interest. Barwick seemed to be stretching the words of the Constitution to save a political soulmate.
Beazley quoted the opinion of constitutional lawyer Stephen Gageler saying that the High Court would likely depart from Barwick’s opinion in favour of a construction which “”treats the word “agreement’ as encompassing any contract whether executory or executed within a short period of time and whether or not it is capable of leading to executive influence over a member of Parliament; treats a senator or member of Parliament as having a “direct or indirect pecuniary interest’ in an agreement where the senator or member has a real (as distinct from remote) expectation of making some monetary gain or avoiding some monetary loss as a result of the performance or non-performance of the agreement; and includes within the expression “direct or indirect pecuniary interest’ the interest of a shareholder as shareholder.”
In light of that Webster’s case is unsatisfactory and needs revisiting. Entsch as a shareholder must have benefited from the concrete contract.
The silly thing here is that the Labor Party says it is worried about the cost of putting this to the test. Perhaps that tells us as much about the poverty of the Labor Party as it does about the greed of lawyers.
But for heavens sake, surely our legal system is not so expensive that a major political party cannot get some straightforward constitutional questions answered.
Bring on the Entsch case.