English statutes gave common informers the right to bring a case to recover penalties for breaches of a wide range of laws including, by way of example, unlawful gaming, unlicensed disorderly houses, depositing of rubbish on the streets and throwing of fireworks.In Re Day (No 2) the Court of Disputed Returns found that, since 26 February 2016 (although three judges were prepared to say 1 December 2015), Day had had an "indirect pecuniary interest" in an agreement with the Commonwealth, and thus was in violation of section 44(v), by reason of his interest in a rental agreement over his electoral office.

[6][7] On 7 July 2017 Peter Alley, the former Labor candidate for the 2016 federal election for the electorate of Lyne, filed a writ of summons in the High Court of Australia seeking the imposition of a penalty under the Common Informers Act against Dr David Gillespie for sitting while disqualified.

Section 44(v), an anti-corruption provision,[7] prevents members of parliament from holding a "direct or indirect pecuniary interest with the Public Service of the Commonwealth".

Ultimately, the majority determined (at [67]):Properly understood, the place of s 46 in the scheme of Ch I Pt IV is to allow for the imposition and recovery of a penalty in a common informer action.

Gageler J, writing separately, rejected the ‘alternative view’ (see [75]–[77]) and noted that the Parliament had otherwise provided for the purpose of s 47 by a law enacted under s 76(i) and (ii), namely pt XXII of the Electoral Act 1918 (Cth) (at [78]).

Professor Campbell called in aid what she fairly described in that opinion as "dictum in the English case of Bradlaugh v Gossett which suggests that the court trying the suit for penalties would not be bound by the House's adjudication".

The same dictum was noted in the edition of Erskine May's well-known treatise on parliamentary practice current at the time of federation as one of a number of "conflicting opinions as to the limits of parliamentary privilege, and the jurisdiction of courts of law".Gordon and Nettle JJ said of the powers in s 47 (at [104]):Section 46 does not expressly or by necessary implication empower the Parliament to provide for means of determining any question concerning the qualification of a senator or member of the House of Representatives.