A failed Labor candidate cannot refer Turnbull government frontbencher David Gillespie to the High Court over his eligibility to be in parliament, the court's full bench has ruled.
All seven High Court justices decided in favour of the NSW Nationals MP on Wednesday in determining that only the House of Representatives can make that referral.
Dr Gillespie is facing eligibility questions over his ownership of a shopping centre on the NSW mid-north coast including an outlet of government-owned corporation Australia Post.
Peter Alley, who stood unsuccessfully against Dr Gillespie in the 2013 and 2016 federal elections, claimed the assistant minister may have held a financial interest in the Commonwealth.
Dr Gillespie sold the shop in question in February.
The assistant minister says he's delighted with the result, though it took a toll financially and emotionally.
"I thought when I stood for parliament and was elected by the community I would be fighting for my constituents, not fighting unmeritorious, expensive and wasteful litigation in the courts," he said after the ruling.
The court did not consider the Lyne MP's eligibility to be in parliament, only whether Mr Alley could ask it to do so.
This gives Dr Gillespie a reprieve unless the lower house votes to refer his situation for the court's determination - unlikely, given the government holds the numbers there.
Shadow attorney-general Mark Dreyfus raised that issue after the decision, which he said Labor accepted.
"This means that, as Justice (Stephen) Gageler noted, a political majority in the Senate or the House might prevent a disqualification from being tested," he said.
The key question of whether Dr Gillespie was disqualified because of an interest in a contract with the Commonwealth was yet to be answered, he said.
In determining who could make a referral to the court, Justices Geoffrey Nettle and Michelle Gordon, in their published joint reasons, said the constitution was clear.
"If it had been intended that a proceeding by a common informer could determine the qualification of a senator or member, it is unlikely that it would provide, as it does, that 'any question' shall be determined by the House in which the question arises," they said.
Unless and until the relevant house decided to refer an MP to the court, no liability would arise.
They also found allowing a referral under the Common Informers Act would "create the potential for inconsistent determinations on disqualification" between parliament and the court.
In separate reasons headlined by Chief Justice Susan Keifel, it was noted as an alternative that the High Court could receive petitions disputing an election result within 40 days of the writs being returned.
No such claim was made in this case.
Attorney-General Christian Porter said the government would carefully consider the judgment to assess any "indirect implications".
Australian Associated Press
