Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Finance) Share this | Hansard source

Thank you, Mr Speaker. I move:

That pursuant to section 376 of the Commonwealth Electoral Act 1918, the House of Representatives refer the following questions to the Court of Disputed Returns:

(1)

(a)whether, by reason of s44(i) of the Constitution, the place of the Member for Batman (Mr Feeney) has become vacant;

(b)if the answer to Question (a) is "yes", by what means and in what manner that vacancy should be filled;

(c)what directions and other orders, if any, the Court should make in order to hear and finally dispose of this reference; and

(d)what, if any, orders should be made as to the costs of these proceedings;

(2)

(a)whether, by reason of s44(i) of the Constitution, the place of the Member for Braddon (Ms Keay) has become vacant;

(b)if the answer to Question (a) is "yes", by what means and in what manner that vacancy should be filled;

(c)what directions and other orders, if any, the Court should make in order to hear and finally dispose of this reference; and

(d)what, if any, orders should be made as to the costs of these proceedings;

(3)

(a)whether, by reason of s44(i) of the Constitution, the place of the Member for Fremantle (Mr Wilson) has become vacant;

(b)if the answer to Question (a) is "yes", by what means and in what manner that vacancy should be filled;

(c)what directions and other orders, if any, the Court should make in order to hear and finally dispose of this reference; and

(d)what, if any, orders should be made as to the costs of these proceedings;

(4)

(a)whether, by reason of s44(i) of the Constitution, the place of the Member for Longman (Ms Lamb) has become vacant;

(b)if the answer to Question (a) is "yes", by what means and in what manner that vacancy should be filled;

(c)what directions and other orders, if any, the Court should make in order to hear and finally dispose of this reference; and

(d)what, if any, orders should be made as to the costs of these proceedings;

(5)

(a)whether, by reason of s44(i) of the Constitution, the place of the Member for Mayo (Ms Sharkie) has become vacant;

(b)if the answer to Question (a) is "yes", by what means and in what manner that vacancy should be filled;

(c)what directions and other orders, if any, the Court should make in order to hear and finally dispose of this reference; and

(d)what, if any, orders should be made as to the costs of these proceedings;

(6)

(a)whether, by reason of s44(i) of the Constitution, the place of the Member for Chisholm (Ms Banks) has become vacant;

(b)if the answer to Question (a) is "yes", by what means and in what manner that vacancy should be filled;

(c)what directions and other orders, if any, the Court should make in order to hear and finally dispose of this reference; and

(d)what, if any, orders should be made as to the costs of these proceedings;

(7)

(a)whether, by reason of s44(i) of the Constitution, the place of the Member for Mitchell (Mr Hawke) has become vacant;

(b)if the answer to Question (a) is "yes", by what means and in what manner that vacancy should be filled;

(c)what directions and other orders, if any, the Court should make in order to hear and finally dispose of this reference; and

(d)what, if any, orders should be made as to the costs of these proceedings;

(8)

(a)whether, by reason of s44(i) of the Constitution, the place of the Member for Forrest (Ms Marino) has become vacant;

(b)if the answer to Question (a) is "yes", by what means and in what manner that vacancy should be filled;

(c)what directions and other orders, if any, the Court should make in order to hear and finally dispose of this reference; and

(d)what, if any, orders should be made as to the costs of these proceedings; and

(9)

(a)whether, by reason of s44(i) of the Constitution, the place of the Member for Mackellar (Mr Falinski) has become vacant;

(b)if the answer to Question (a) is "yes", by what means and in what manner that vacancy should be filled;

(c)what directions and other orders, if any, the Court should make in order to hear and finally dispose of this reference; and

(d)what, if any, orders should be made as to the costs of these proceedings.

The resolution that is now before the House involves referrals to the High Court of Australia as a result of the disclosure process, which concluded earlier in the week. The referrals refer to opposition members, government members and one of the Independent members. There is only one person on the list where you can regard it as a self-referral, even though I'm the person moving it, and that is with respect to the member for Batman.

The disclosure time ended yesterday, and people were expected to be able to provide all the evidence onto the public record by 9 am. The member for Batman was unable to do so, and, as a result of that, he requested that I move that his case be referred to the High Court. He has already explained the reasons behind it in the Federation Chamber, and I won't go to them any further. It is the only one of these that can be properly regarded as a self-referral. There has been, in the House and throughout the media, partisan discussion where there are views from the opposition that there are certain members of the government who should be referred to the High Court, and strong views from the government that there are members of the opposition and one member of the crossbench who should be referred to the High Court.

In moving this resolution, I don't expect for one minute that in making these referrals to the High Court the government would be presuming that their members would fail, just as I don't believe for one minute that there is a lack in the strength of the case for the other opposition members on this list nor for the Independent member for Mayo. In their case, they took all reasonable steps as required by the court. If you were to go through in advance what were the reasonable steps required, every action that could be required of them reasonably had been completed before they were nominated.

The government has an argument, which this resolution would see tested in the High Court. The government's argument is to say that you need the process to be completed. That would mean we have a junior public servant in another country determining the processing time as to whether someone is eligible to run for the parliament. Let's not forget the vagaries of that. We have members of this place for whom it took weeks and weeks, even months, of processing time after they'd submitted their renunciation forms, yet it was done for former Senator Nash in three days. We can't have that as a benchmark. But this resolution still says to let the High Court be the arbiter of that.

Let's not have a situation where we sit around this chamber and pretend we are the judges of the High Court. We are not. So when the member for Longman, the member for Braddon, the member for Fremantle or the member for Mayo argue that there was nothing more they could have done in advance of their nomination, the opposition holds to every word of that. And if we were in a situation where we were dealing with self-referrals, none of them would be on this list. None. But the only appropriate way for us to deal with this is to make sure that, wherever there has been serious doubt across the chamber, the High Court becomes the decision maker rather than the numbers on the floor of this House.

With respect to the members of the Liberal Party who I referred to in a 90-second statement earlier when I first circulated this motion, in all cases they put statements on the register which referred to documentation that they then kept secret. The whole principle that we are meant to be following is that you would disclose the information, disclose the documentation. It may well be the case that for some of these individuals—I'd be surprised if it were all—the High Court looks at the information that they've refused to put on the register and makes a decision that they're okay and they continue to sit in this place. And I'm not going to prejudge, as some have, what the High Court will decide. But I will say that, when it's meant to be a process of disclosure and you refer to documents but don't disclose them, that's really a case where we need to say that it won't be the pretend lawyers in this place drawing on practising certificates of years past that should make the decision; it should be the justices of the High Court. I don't know what they will hold, but it should be their decision.

Some of these members, since I referred to them earlier when this motion was first circulated, have put forward some documents. The member for Mackellar, for example, first had kept the legal advice secret but later today released the legal advice. But the legal advice he released today was dated today. The legal advice he referred to on his register must have been something different because that couldn't have been a document that was dated today. I then read that document and within that document the lawyers say: 'As previously discussed, we cannot conclusively advise on foreign law, and recommend that you seek independent advice from foreign law experts to confirm our views set out in this advice.' If that's the best you've got, then I have to say I'm not going to pretend to be the foreign-law expert, and no-one here should. But if that's the best that somebody can put forward, we've got enough doubt that it must go to the High Court of Australia.

Similarly for the member for Forrest, we have issues with respect to Italy and issues with respect to the United States. With each of these, once again, it may turn out to be a reasonable conclusion, but we are not there yet. We are not there yet on the basis of the information that we have. In terms of Italy, a statement has now been released from the Italian embassy. But if you'd gone to the New Zealand embassy a few months ago and asked whether the name of the member for New England was on the electoral roll in New Zealand they would have said no. So a statement from the embassy saying, 'We don't have the record of the person's name,' is hardly conclusive. But the High Court can conclude it, and they should. Similarly, there are new issues starting to emerge about references to the United States and dates of birth that are on the US web page that don't match what's been put on the declaration for the member for Forrest. There may be an explanation for that, but if the deadline was meant to be nine o'clock yesterday then the decision must be made by the High Court.

Finally, with respect to both the member for Chisholm and the member for Mitchell, in each of those cases the issue goes to Greek citizenship. They have statements, once again, from embassies, but I draw the same comparison: if you'd gone to the New Zealand embassy and said, 'Is the Deputy Prime Minister on the electoral roll?' the answer would have been no, and you could have had a statement that said that.

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