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Dr Gillespie Unlikely to Fall Foul of Section 44

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David Gillespie is a former gastroenterologist from Port Macquarie on the north coast of NSW.

He owns 27 properties in the Port Macquarie area.

One of these properties is a small shopping centre, bought by Dr Gillespie and his wife, which contains an Australia Post outlet which has operated from the centre for 27 years.

The outlet, which has a licence from Australia Post, receives no money from Auspost but makes a profit out of selling its products.

Peter Alley, the Labor candidate defeated by Dr Gillespie at the last election, has now taken a case to the High Court alleging that his opponent received an indirect benefit from the Commonwealth and was therefore ineligible to stand for election under section 44 of the Constitution.

Section 44(v) of the Constitution says 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 more than 25 persons shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”

In the Bob Day case the Chief Justice Susan Keifel said that former Senator Day had asked that the rent for his office be paid by the Commonwealth into an account that was used to service the mortgage on the building where his office was situated.

Although Senator Day had transferred ownership of the building, he was still legally liable for the mortgage so there was no doubt that he was receiving an indirect benefit.

Professor Anne Twomey, Professor of Constitutional Law at Sydney University, says that this opens up the question of what constitutes an indirect benefit.

While she declined to offer an opinion on the Gillespie case she said that, if Dr Gillespie had not been a party to the lease arrangement, he would be unlikely to fall foul of section 44.

Peter Alley says he is being represented on a no win no pay basis however if he loses he will have to pay Dr Gillespie’s costs which could be considerable.

It would be unfortunate if he was gulled into mounting the case by hubristic Labor powerbrokers who want to put an end to Malcolm Turnbull’s single seat majority in the House of Representatives.

Even if Dr Gillespie is ruled ineligible then there will be a by-election and, provided he no longer owns a shopping centre with a Post Office in it, he can stand again.

All in all the whole charade looks like an exercise in futility.

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