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

Mr Speaker, pursuant with the resolution that was carried in the House earlier in the week, I wish to move the resolution which has been circulated in my name.

Tony Smith (Speaker) Share this | Link to this | Hansard source

Pursuant to the resolution earlier in the week, the member for Watson can move that and he does not require a seconder.

Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Finance) Share this | Link to 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.

Alex Hawke (Mitchell, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

It's a totally different legal system.

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

And I acknowledge, absolutely, what the member for Mitchell is saying there; it is a different legal system. But can I say this: as far as Greece is concerned, we have had for a long time in this House people of Greek heritage. And what is happening—

Alex Hawke (Mitchell, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

You can't compare New Zealand and Greece.

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

You'll get a chance to talk. Just settle. What has happened for a long time with members of Greek heritage in this House is that the advice we've been getting—

Mr Hawke interjecting—

Tony Smith (Speaker) Share this | Link to this | Hansard source

The member for Mitchell.

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

is completely different. Take the member for Hindmarsh, who's of Greek heritage. He came to this place through the same election that I came in. At every election since he has repeated his renunciation of Greek heritage—every single time. He has done it again and again. Yet the member for Chisholm and the member for Mitchell, on the basis of what they've put out publicly, have never renounced their Greek citizenship. It may well turn out that the member for Hindmarsh has been doing this for no reason at all, but it's not going to be pretend legal opinion in this place that makes that decision. It has to be the High Court of Australia that makes that decision.

We are about to have a vote in this House on these issues. The vote in this House will either go through unanimously or be the first time that a vote of this nature has been done on partisan lines. This has been deliberately drafted to take into account the arguments that have been made by government members that we don't agree with. It has been deliberately drafted at the request of the member for Mayo to include the member for Mayo, even though we do not agree with the arguments the government has put against the member for Mayo. And it has also been drafted, quite deliberately, to say to the members who put on their register references to documents but then refused to actually disclose them: 'This was a process of disclosure. That's what it was.' We could have had a situation where we only had self-referrals but, in the week gone past, both the Leader of the House and the Prime Minister have made clear that there were going to be hostile referrals.

We could play the game of tit for tat on that. We could play it that way, but we won't. We are referring all the members over whom there has been a serious and continued doubt. We are making sure that the process of disclosure that we unanimously voted for is actually followed up, because if you go through a process of disclosure and you fail to disclose there should be a follow-up. If the follow-up is to rush around now with member after member trying to personally lobby the crossbench, saying, 'Oh, but here's an extra detail,' every detail they now want to refer to are details they hid from the register, and nine o'clock yesterday was the deadline for that register.

If this is defeated along partisan lines, does anyone really think that this issue is going to go away for the rest of this term? Does anyone really think the cloud that is hanging over the legitimacy of this parliament will go away because the government managed to get the numbers on the day? What we need to do as a parliament today is actually to have a resolution that I can tell you no-one in the parliament is completely happy with. I'm certainly not, because there are names there where I'm absolutely confident of their position and there are names here where those opposite are absolutely confident of their position. But the list of names we have here is the only way to be able to broker something so that the High Court gets to make the decisions that only the High Court of Australia can make.

We've been through a world of people in this House telling us they knew what the High Court would decide. I don't know what the High Court will decide on these, but I do know this is the only sensible outcome of a disclosure process. I would have liked this to have been negotiated between the opposition and the government—and we've sought to have those conversations—but, as I understand it, in a meeting with the crossbench today the Prime Minister made clear that he would support no further referrals of his own people even though they had failed to provide the information they'd referred to on their disclosure statements. If that's the situation, there are only two pathways in front of us: either we support this resolution or the cloud that is currently over the parliament will continue to be there.

Malcolm Turnbull (Wentworth, Liberal Party, Prime Minister) Share this | Link to this | Hansard source

The case put by the Manager of Opposition Business is a desperate attempt to distract from the fact that there are a number of people on the Labor side who were plainly and admittedly UK citizens at the time they nominated. That puts them in breach of section 44. They have an argument they want to run in the High Court, that because they put in a notice of renunciation then that should be enough to keep them qualified. They should have the opportunity to do that.

Senator Gallagher has been referred. She is in exactly the same position as the member for Braddon, the member for Mayo and the member for Longman, subject to a point I'll come to in a moment. That issue will be determined by the High Court. What is the opposition going to do if it's determined adverse to Senator Gallagher? What are they going to do? Are they going to continue trying to maintain people in the House when the High Court has clearly stated that they would be ineligible? As I said during question time, I wish everybody luck in the High Court. I wish you luck. But, ultimately, the court is taking a very strict, literal reading of the section. It's not the approach to the section that we contended for.

Turning to the member for Batman, it appears that he is in fact a dual citizen now. He's looking for some paperwork to see if he can establish that he's not. I assume, consistent with what he has said, that if he can't find that paperwork he will resign from the House in the way that the member for Bennelong, John Alexander, did a little while ago when he was not able to establish that he was not a dual citizen, at least to his satisfaction.

I come back to the member for Longman. It appears on her own statements that she is still a UK citizen. She made some efforts to renounce, but it is clear that there has not been any registration of that under section 12 of the act in the UK, and so she would remain a UK citizen based on the fact that she had a UK father. That's the position on the other side of the House.

Let's look at one of the people Labor wants to refer to the High Court: the member for Mitchell. The member for Mitchell has a document signed by the Ministry of the Interior and Administrative Reconstruction of the Hellenic Republic, and it says, 'As no registration ever took place within the municipal or mail registries of the state, he'—that is, the member for Mitchell—'cannot be considered a Greek citizen or national.' It is signed with the official seal of the ministry of the interior. Is the Manager of Opposition Business seriously contending that the House should make such a fool of itself as to send off to the High Court somebody that the Greek government says is not a Greek citizen? The honourable member chastised me about what the High Court might rule in the Deputy Prime Minister's case, but he is now claiming that he knows Greek law better than the Hellenic Republic itself. This is absolutely ludicrous.

I could go through the list, but basically what we have is a government whose members who were dual citizens left and went to by-elections. One of them—the Deputy Prime Minister—has been re-elected and returned. John Alexander is facing the by-election on the 16th. Not one member of the Labor Party has done the right thing. They went on and on and on about all of their vetting and how they had no problems, and now we discover them. And we saw an extraordinary stunt just before 1.30. Recognising that the poll had been declared in New England and that the DPM would be coming back into the House, they bullied the crossbench and tried to rush through a motion to refer a grab bag of members from our side of the House off to the High Court. And why? On what basis? They did not present one piece of evidence that any of our members are dual citizens or other than what they have stated to be.

Foreign law is a question of fact in an Australian court. You can't get much more authoritative than the foreign government itself. And what we have is members, including the member for Mitchell—I could make the same point about others—where government has stated that the member concerned is not a citizen, and the opposition says they should go to the High Court. What is the High Court meant to do? Where is the alternative case? Have they presented an argument? Have they presented a case that the member for Mitchell is in fact a Greek citizen, contrary to the views of the ministry of the interior of the Hellenic Republic?

They were scornful of brief statements—and the one for the member for Mitchell is anything but brief—from embassies and consulates. Well, the member for Sydney defends her proposition that she is not a Slovenian citizen with a very short letter from the Slovenian embassy which says, 'This is to certify that Tanya Joan Plibersek is not, nor has she ever been, a citizen of the Republic of Slovenia.' We don't challenge that. The member for Forrest, on the other hand, has a letter from the consulate of Italy which says: 'This is to certify that Mrs Nola Marino is not nor has ever been an Italian citizen.' It's in almost exactly the same terms. So why isn't the member for Sydney being sent off to the High Court?

This is nothing more than an attempt to achieve some sort of tit-for-tat. Because Labor does not want its members to be referred to the High Court, it wants to take some government members as well, and they've gone to the crossbench and said, 'It's only fair that some government members be referred.' The reality is that our members that were dual citizens stood up and left. Barnaby Joyce referred himself to the High Court, and, when he lost, he went to a by-election. John Alexander, when he felt he was not able to document that which he had always believed—that he was solely an Australian citizen—resigned, and is now in a by-election. Of course, you have former Senator Nash, who did the same thing—she put her hand up and said, 'I think I'm a dual citizen.' Well, so she was, and she lost her seat. Senator Canavan did exactly the same thing and was found not to be a dual citizen by the High Court, and he has been restored to his position.

This is a serious issue. If Labor wants to deal with it seriously, and if the House wants to deal with it seriously, then we should deal with each case one at a time. Those who believe that members are not eligible should present their evidence. Now, we had always been of the understanding that we were going to deal with the same-sex marriage issue first, giving everybody time to consider the information that members had filed on citizenship, to obtain further advice, to ask questions, to obtain further documents and so forth, to look at it, to at least give ourselves a few days to go through it, and then deal with it at the end of the week. But for no reason other than political advantage, with not a principle in sight and not a skerrick of evidence in sight, the Labor Party wants to send members of the House to the High Court under the section without making any case that they are in fact dual citizens.

I just come back to the case of the member for Mitchell and the sheer absurdity of the opposition saying that the member for Mitchell is a Greek citizen, when the Hellenic Republic itself—Greece itself—says he is not, and does so under the authority of the Ministry of the Interior and Administrative Reconstruction.

This motion debases the House. If Labor wants to debate this, we are happy to do so. We should debate them one at a time. We should debate them one at a time and we should debate them on Thursday, after we've dealt with the marriage bill.

Tony Smith (Speaker) Share this | Link to this | Hansard source

Before I move to the next speaker, I just remind members that I'm obviously trying to listen very carefully to the debate, as the majority of members are. To those members who have been warned throughout the day, those warnings carry through for the whole day.

Bill Shorten (Maribyrnong, Australian Labor Party, Leader of the Opposition) Share this | Link to this | Hansard source

In rising to support this resolution, I recognise that the Australian people are fundamentally disenchanted with the Parliament of Australia. They are disenchanted with this citizenship fiasco. They are disenchanted with the inability of this parliament to actually confirm and resolve if all of its members are actually eligible to sit here. Now, I know that the government says that that's just one side's fault and not the other's. The reason we are moving this resolution is because Australians are fed up with the parliament.

There are legal questions to be determined on eligibility, but there is a political question: does this parliament have the capacity to manage its own affairs? That is what the people of Australia are looking to us to do. This resolution is a proposition which, based upon the steps which Labor has proposed in the last month, is a fair dinkum effort to resolve the matter to the satisfaction not of the government or of Labor and not even of the crossbench but of the people of Australia. It is why Labor proposed, following former President Parry's stepping down and, of course, revelations around Minister Fifield, that we take a step which we previously hadn't contemplated. We proposed that there should be, for the first time, almost a reversal of onus on MPs to prove their eligibility because there have been so many cases of MPs who, for whatever reason, had neglected to confirm their eligibility. So we took the unusual step of saying that members of parliament, to restore confidence of Australians in the parliament, would demonstrate by universal disclosure the circumstances in which they believe they are eligible to serve in this parliament, consistent with section 44(i) of our Constitution. This was not done lightly. The proposition that MPs have to explain how they come to be eligible was only taken as a last step because there had been so many cases popping up, making concern and creating a real frustration with the Australian people.

Labor wants the uncertainty to end. We proposed the disclosure process; we negotiated the disclosure process; and every Labor MP fully disclosed their material. However, when we surveyed coalition material, there were gaps. There was a lack of documentation. There was a lack of argument. There was a lack of detail. This process cannot end this uncertainty of the Australian people in the conduct and legitimacy of this parliament. It will not end until all those MPs with inadequate disclosure, with a debate around them, go to the High Court and have the High Court rule.

Now, the government are saying that this is unreasonable. The government are setting two standards in this House. They are saying that, for Labor and crossbench MPs, the only person who can determine the legal weight, the merit of the legal argument, is the High Court, but, when it comes to the government MPs, apparently we've just got to take their word for it. They can say—

Honourable Members:

Honourable members interjecting—

Bill Shorten (Maribyrnong, Australian Labor Party, Leader of the Opposition) Share this | Link to this | Hansard source

Well, we know. The Prime Minister did again today assert, 'We've got very good legal argument, and this is a most unfair slur on the government MPs,' but the fact of the matter is that, even as documents are dragged out after the deadline—I quote one document which has gone up online. It says 'Dear Mr Falinski'. It's headed 'Arnold Bloch Leibler'. In the third paragraph, it says:

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.

That is not solid proof. Upon that you do not base an argument of constitutional eligibility. Indeed, in the disclosure of Mr Falinski yesterday, he said he had legal advice, but the legal advice he proffers is dated today, a day after he's closed that off, where he said he'd received the advice.

Government members interjecting—

The real problem here is—and I listen to the government interject and say, 'How would you know?' and, 'What do you know?' What I say to them is that I'll accept that criticism from the government if you accept this criticism from me: what do you know? What is your base? Which High Court judges are you? All we want—

Mr Turnbull interjecting—

I hear the Prime Minister shouting. I hear him shouting—a more common feature these days, we notice, in this country. What we are proposing, very simply, is one rule for all. We are also proposing that we do this right the first time. This parliament—both Labor and the conservatives; all of us—has an obligation to restore some confidence in this parliament.

I have to say that I remember when the Prime Minister and the former Prime Minister challenged. They said, 'Oh, what is Shorten hiding with his English citizenship?' And I remember the choice line from the Prime Minister. He said, 'If he has nothing to hide then what does he have to fear?' I say to the government: right back at you. If you've got nothing to fear with the legal weight of the argument of your MPs, why are you so afraid of being referred to the High Court? Don't you get it over there? Australians want to see resolution. There is a political question that transcends your nitpicking and your growling and your grizzling.

It is appropriate, we believe. This is a bipartisan resolution, bipartisan in intent. We do not come here and say that we will not contemplate the referral of some of our members. By the way, we are very confident in many of the arguments that we have made, but what I accept—

Honourable members interjecting—

Yes, but, see, the government every time come in spinner. I say we're confident in our arguments, and they say, 'Test them in the High Court.' Well, you're right.

Malcolm Turnbull (Wentworth, Liberal Party, Prime Minister) Share this | Link to this | Hansard source

You've made no case.

Bill Shorten (Maribyrnong, Australian Labor Party, Leader of the Opposition) Share this | Link to this | Hansard source

Oh my goodness. You had one go. Apart from just this need to reassure the confidence, if the government is so certain, put up. And what we also see, as we're examining the inadequate disclosures, the cover-up, of government MPs, is that now they're saying: 'We've got this document. We've got that document.' Well, the member for Batman's looking for his documents, but we're not using that as an excuse not to refer to the High Court. We are prepared to do that, as we should do.

The government says, though, 'This is just tit for tat.' He talks about a spurious argument about fairness. I think he thinks fairness is always a spurious argument. But what we are prepared to do is this. Even though we are confident in our position, we recognise that a time has come in the conduct of the parliament to build the confidence of the Australian people. The time has come for no more excuses. The people of Australia want to see the detail.

We put forward a disclosure system. You agreed to the disclosure system. You have not honoured the disclosure system. It is not sufficient for the Prime Minister to simply say, 'I know best. You in Labor should know your place.' It is not sufficient for the Prime Minister to say, 'We will send your members to the High Court, but you'll have to take our word on our members.' We don't take your word. You have been wrong before. So, in supporting this resolution, we make it very clear: we do so because we need a circuit breaker to rebuild the confidence of the Australian people. And to all of those government MPs who say, 'We have nothing to show here. We've got nothing to hide here,' I say to you: the Australian people don't believe us. They don't believe that this parliament is functioning as it should. The Prime Minister says they don't believe Labor. I want to tell our Prime Minister: come down from your ivory tower and smell the grass; it is real out there. The people are not happy with the conduct of this parliament. We put this forward. We invite you to join us in this resolution. The Australian people say, 'It makes sense.'

The government of this country have failed to adequately disclose. They had their opportunity. They haven't done it. I know there have been plenty of government MPs saying, 'I will find you this document now and I will find you that document'. All I say is: find the documents for the High Court. The nation needs certainty that all of its members of parliament are constitutionally elected. We've had lecture after lecture after lecture from the Prime Minister. He said the High Court is the ultimate arbiter. We agree. And if this government has nothing to hide from the Australian people, join this referral of members of this parliament to the High Court, because if we have nothing to hide then we have nothing to fear.

Christopher Pyne (Sturt, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

It won't surprise the House to hear that I don't support the resolution moved by the Manager of Opposition Business. I rise more in sorrow than in anger, though, about this particular resolution, because really this is a very straightforward matter, and Labor is desperately trying to play politics with it. Let's reprise what's happened here. We've had, for months, doubts about certain members of the House's citizenship. Some of those members have taken the necessary action. The Deputy Prime Minister was referred to the High Court with everybody's support in the chamber. The High Court heard about his matter, ruled that he was not able to sit in the parliament, and he has won a by-election. John Alexander, the former member for Bennelong, as soon as he was aware that he thought there was a better-than-even chance that he had a UK citizenship entitlement, resigned from the parliament, did the right thing and is facing a by-election on 16 December.

The Leader of the Opposition lectured the government day in, day out, demanding some kind of process, some kind of audit. Having opposed an audit and opposed the process, he demanded we have a process. We sat down in good faith with the opposition in the Senate and in the House of Representatives and crafted a process. We even moved the times around, the schedules, to suit members of the opposition, and every member complied with that process. It's been discovered—most unfortunately for the members concerned, in Longman and Fremantle and Braddon and Batman, and in the case of Mayo, which is particularly unfortunate as the member for Mayo is a member of the crossbench and not a member of the Labor Party—that those five members were UK citizens at the time nominations closed for the 2016 election.

It doesn't matter, quite frankly, about the Labor Party's rhetoric about when they did this and when they did that. They've all admitted themselves that, in those five cases, on 9 June 2016, they remained citizens of the UK; they were dual citizens. Therefore, this is a very straightforward matter. Those members must be referred to the High Court for a finding. If the High Court finds that, for whatever reason, they can continue to sit in the parliament, good luck go to them. And if it finds that they are in fact legitimately sitting in the parliament, there will be by-elections. I know that will be painful for the Leader of the Opposition because he has led his members down this path and into this unfortunate situation. But on this side of the House we've done that; we've taken our lumps. The Deputy Prime Minister took his lumps. The member for Bennelong has taken his lumps.

Labor now, really disgracefully, is trying to create a smokescreen and to create myths about certain members on this side of the House about whom there is no question of legitimacy. The Prime Minister has pointed out that the member for Sydney and the member for Forrest are in exactly the same position, but somehow the member for Forrest should be referred to the High Court.

Now, we haven't said things like that—for example, as to the member for Cowan. She has put in her statements a reasonably opaque description of how she has renounced her Egyptian citizenship, from which she has had no response from the government of Egypt, but we haven't suggested that we would refer the member for Cowan. We have very straightforwardly said there is no doubt about those five members; they need to be referred to the High Court. Labor scrambled around desperately yesterday, creating hit lists of members of parliament, including people whose families survived the Holocaust, pushing it around in the gallery, trying to create as much dust as they possibly could. It is a political tactic, because the Leader of the Opposition sees everything through the prism of politics. He can never see anything through the prism of principle. That's why I stand here in sorrow more than anger, because I want to get this matter resolved, as does every member of the House of Representatives. Disappointingly, Labor has managed to create enough dust to convince the Independents, at least at this stage, that this motion is legitimate. It isn't legitimate to lump five people who are clearly not capable of sitting in the House—at this stage, unless the High Court rules it—with people who have absolutely no case to answer whatsoever. That is not a fair principle. There is no equivalency with the people who are being referred to the High Court.

My strong suggestion is that each member should be dealt with on their merits. Each member of the House of Representatives should be debated on their merits, and each one should be voted on separately. Of course, the Clerk and the Speaker and I have talked about these matters, and that of course is the best way to go ahead because then each person can be debated on their merits, and it can be decided by the House whether they should be referred. The idea that you could have a job lot—that all of these members have some kind of equivalence—is not only insulting; it is also intellectually offensive to anybody in the House. This is not a New South Wales ALP state conference meeting; this is the House of Representatives, and we want to know that everybody in it is sitting here legitimately. So I do implore the Independents to reconsider their position on supporting this motion.

I don't want to take too long because I would actually like to get back to marriage equality, which is the reason we've been here this week, and we can deal with citizenship matters at a later date. The Leader of the Opposition said, if we've got nothing to hide, why would we be in the least bit concerned about any of our members being referred to the High Court? On that logic, we might as well refer all 150 members of the House of Representatives to the High Court. We might as well not have had a process, because quite clearly there is no reason at all for people who have no question to answer to be referred to the High Court. Labor has picked out a few people on their hit list and put them in this motion. They have left off a couple of people who were on the hit list, including the member for Kooyong, because good sense took over on a couple of cases on that side of the House and they realised how offensive that was, and I am glad that the member for Melbourne Ports and others made that absolutely clear and had the decency to stop that ludicrous referral.

Mr Turnbull interjecting—

Exactly. The member for Isaacs, sadly, didn't show the same good judgement.

On the Leader of the Opposition's logic, we would refer all 150 members to the High Court. Clearly, that is a mad idea and we shouldn't do it. What this motion asks us to do as members of parliament is to completely suspend our sense, and decide—knowing that members on this side of the House have no case to answer—to refer them to the High Court anyway. It asks us to just play a political game that Labor has made up to try and cover—a fig leaf for—their embarrassment. They created a process which has led to four of their members and one senator obviously lacking legitimacy to be in this place. They said over and over again that not one of their members had a case to answer. It has turned out to be quite the opposite, so they've tried to create this fig leaf of this motion, and they're asking to make the mad decision to refer people to the High Court who have no case to answer whatsoever simply to assist them to get through a difficult political spot. I'm not prepared to support that, the government won't support that and I hope the Independents will reconsider and not support it, because they are being led into a position which is quite illogical and politically embarrassing for everybody in the House to be asked to do.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Firstly, I, as much as many others, would love to be debating marriage equality. I make the point that we had a week set aside where we could have debated that and citizenship issues and we didn't. This is an important matter that has to be resolved in this parliament and so if, as a result of this debate, we need to have extra time to debate marriage equality, that is exactly what this House should do, because it is not our fault that all of these things are crashing in all at once.

We are in a situation at the moment where, as we understand the composition of this House—

Government Members:

Government members interjecting—

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Look, the noise from Nuff Nuff's Corner is getting a bit much. This is a serious debate, and I ask to be heard in silence.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The member for Melbourne will resume his seat. Members right across the chamber will not interject. The member for Melbourne has the call.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

We're in a situation where, as we understand the composition of the parliament at the moment, the government, if it sought to prosecute a case, would not have a majority, and the opposition, if it sought to prosecute a case, even if it had all of us supporting them would not have a majority either. And so we are in a situation in this parliament where we have to resolve what is in the public's mind and should be in this parliament's mind: a very, very crucial issue about who is entitled to sit in this place and who should be referred to the High Court. Some might say that it is a problem that we are at a situation where there is potential deadlock. I think it is an opportunity and I think it is probably timely that that is the way that such a question is being resolved. As you might expect, those of us on the crossbench, given the situation that we are in, have spent a fair bit of time having discussions with each other.

Honourable members interjecting—

Some people clearly don't think it is that serious, but we've spent a fair bit of time having discussions about what would be the best way to resolve this. A number of my colleagues will make their own contributions to this debate, but I think it's fair to say what's come out of the discussions are a couple of propositions. One is that, for someone to be referred, there ought to be a legitimate question, but the corollary of that is that, where there is a legitimate question, the presumption should be that they should be referred, because it is not this parliament's role to stand in the place of the High Court where there is a legitimate question.

The second point that has come out of our discussions is that this must be even-handed and non-partisan. We cannot possibly have a situation in this parliament or any other parliament where a government of whatever stripe uses its numbers to start referring opposition members, because, when we move out of this hung parliament impasse scenario, we may go back to parliaments where there are majorities, and, if it's okay to start moving and picking off people one by one when you are in government and send someone off to the High Court because they are being troublesome, that is a very grave concern. In that respect we look to what has happened in the Senate and note that in the Senate members from across the political spectrum have been referred either by sticking up their hand or by agreement of the whole Senate. That has been the approach taken and that ought to be the approach that gets taken here.

We want to be absolutely clear that we support the referrals of people where there is a legitimate question, including those that the Prime Minister has identified on the opposition side. But we also think that, where there has been a case made that there are legitimate questions on the government side, they should be referred as well. So, as a result, we are adopting, I think it is fair to say, the following position.

Firstly, we think there should be an agreed set of names that go forward from this House. Secondly, we will not support picking off people one by one, because that would mean the position at the moment would be that no government member, no matter how serious the question, could ever get referred. So we understand why the government wants it to be done one by one, but we're saying, 'No; it needs to be an agreed list.' And, thirdly, if the government thinks that the list of people in this motion is too short or too long, then come up with additional names and arguments and we will look at them on their merits. We will look at them on their merits in the same way we did when the Manager of Opposition Business put his names up. We considered them on their merits.

We're not the adjudicators of foreign law. That is a matter for the High Court. But I do want to address a couple of matters that have been raised by the government in their contributions. I note that they make contributions about one member and say, 'They've got a statement from the embassy that they've never been a citizen,' but I note they said nothing about that member in relation to US citizenship. In all the contributions they've made to this debate, they've said nothing about the question of US citizenship. Some people have raised that as an issue and it seems, on the face of it, to be a legitimate issue that should be dealt with by the High Court. I also understand that with respect to other nationalities, there seems to be, from my perspective, a legitimate point of dispute about whether you need to actively renounce or whether you don't. I'm not in a position to adjudicate that; that's what the High Court is there for. So if the government wants to get into an argument about the merits, I say that immediately back to them.

I also make the point about the two members of the government—I accept the Prime Minister's argument that this is not about some numerical legitimacy; that's not what we're after. But I make the point about the two members who have gone: it was crystal clear for them, and they did nothing more than what our members did a while ago when it became crystal clear; however, we're not dealing with a category of people who are crystal clear. We are dealing with a category where there is argument. And where there is argument, what do we do? I applaud those two members for stepping down and doing what our senators did when they found themselves in a similar situation, because that's what they should have done. Fine; great. But we are now dealing with a situation where there is a dispute, and what do you do where there is a dispute?

I think I speak on behalf of a number of my colleagues in saying: the test here is, in large part, what would the public think is a fair thing to do? What would the public think is a fair thing to do where there is a legitimate question mark over someone? I would urge the two sides to start having a conversation with each other, and in that conversation put themselves in the public's shoes. Step out of here for one moment, because one way or another this is going to be resolved, and put yourself in the public's shoes and ask, 'What would the public think is fair where legitimate questions are raised?' It's not vexatious, it's not being done to annoy people—we won't have a bar of that. But if a legitimate question is raised about someone, if a document hasn't been provided or if there is a question about whether or not that document is sufficient—and it is a legitimate question—then put yourself in the public's shoes. Do you think that should be resolved by the High Court? That's what we would urge the two sides to do. Whether it is now or whether you need to spend tonight talking about it, put yourself in the public's shoes, because I don't think that it is right that we walk out of here only having referred one side and not the other. I just don't think that's right, if there are legitimate questions—and there are, in my mind, legitimate questions.

I want to make some final comments about the member for Mayo, because she has asked me to. The member for Mayo has said: 'I don't think that I, as the member for Mayo, have done anything wrong. I had advice before I nominated, and I thought I did the right thing. I still think I will win in the High Court, but I accept that there are people who've got an alternative view.' The member for Mayo has said she is prepared to put herself forward. If that's the test, it is a test that ought to be able to be applied equally by members of the government. Where there is a serious question, this is the opportunity to have it resolved. The government has now got an opportunity to consider how it wants to proceed. The composition of the parliament is what the composition of the parliament is, but we would urge the two sides to think about this sensibly and think about what the public wants.

Bob Katter (Kennedy, Katter's Australian Party) Share this | Link to this | Hansard source

I'm probably a bit different from everybody here insofar as I spent six weeks doing nothing else except walking the streets and listening to what people are saying. It wasn't very pleasant, nor was it very edifying.

Government Member:

A government member interjecting—

Bob Katter (Kennedy, Katter's Australian Party) Share this | Link to this | Hansard source

The gentleman here is interrupting me rather rudely. I must take his interjection. He said, 'We've sacrificed four,' and he's dead right. There is a sense that we've sacrificed our people and you haven't sacrificed anyone, and now it comes to your sacrificing you're saying, 'No, no, no.' That is a very strong and valid argument. I take his interjections and regard them very seriously.

When the Prime Minister said—I don't know what exact words he used to describe the two Greens—I interpreted him as saying they must go. I said, 'No, no, no,' as the second-longest serving member of parliament in Australian history. You don't know what's in your own cupboard. You never, ever say that. Bjelke-Petersen, whatever his shortcomings, would never have made that mistake. There was a whole lot in the cupboard. I am different to everyone else here. I spent two days on the weekend in the electorate of the member for New England. People there were enraged that they had to go back to the polls and that they had to fool around with this stupidity. They expressed their opinion by saying, 'Barnaby should have been left there. He shouldn't have been touched, and we're going to vote for him.' I don't detract from the popularity that the member for New England undoubtedly enjoys in his electorate, but if I were to name three of the best people in this parliament—I hope I'm not embarrassing them or giving them the kiss of death—the member for Forrest, the member for Mayo and the member for Kooyong would be three of the best people I have worked with in this parliament over a quarter of a century. That they should be subjected to what the Deputy Prime Minister was subjected to is unthinkable for me. I just want this to stop. Every Australian wants this to stop.

For me, personally, it's very simple. I have drafted legislation for 45 years of my life. There would be nothing very difficult about drafting legislation to overcome this problem. But there is legislation before us, and I've just got to make a decision about whether to go with what has been proposed by the people in the ALP or not. It is seldom that I agree with the honourable Leader of the Opposition, but in this case the proposition that is being put forward, as I understand it, is that no-one gets referred without a bipartisan approach. I don't want anyone to be referred. These people were elected in the last election. Three of them I know very well. They are decent Australians and outstanding examples of Australians, and they should not be subjected to this. If we decide that both sides have got to agree then it is my own opinion that no-one will be referred and then we can go on and govern Australia. If you don't go to that outcome—and you haven't got a better outcome that I have seen—then this is going to roll on for another three or four months. You people who are in government take the brunt of it. You're the government; you get blamed. If it just rolls on, no matter whether the ALP have been naughty boys or the Liberals have been naughty boys, it'll just roll on and roll on and roll on, and the respect the people of Australia have for us, which is at an all-time low, will go even further down.

I don't think it is fair. I agree with the interjections that the honourable frontbencher is saying over here. I don't think it's fair that these people sacrificed four of their people. There is no way in the world that I would have sacrificed them. I would have stood up and come up with legislation and tried to protect them, and I would have told the Labor Party: 'If you think you're honourable, just wait and see!' But both sides sought some political advantage and all I can say is please, fellas, let just stop here, now. The proposition before the House is that from now on no-one gets referred unless both sides agree. As far as I'm concerned, that means that no-one will be referred, and we can go on with what we're paid for, which is to govern Australia.

Andrew Wilkie (Denison, Independent) Share this | Link to this | Hansard source

I associate myself with many of the comments from my colleagues. I think the member for Melbourne in particular spoke very eloquently on behalf of all five of us here on the crossbench. I would briefly add a few footnotes to emphasise the degree to which many people in the Australian community have, frankly, had a gutful of the citizenship fiasco, of politics and of politicians. We have to do something strong, decisive and unambiguous to turn that around. We've become the laughing-stock of this country, and if we don't resolve this matter decisively and unambiguously this week then our stocks will go down even further. Even today, we should be in here debating the bill on marriage equality, a vitally important reform for this country, but we can't go ahead, finish debating and vote on that while there is such a cloud over the character and integrity of this parliament, because it has been brought into disrepute by the citizenship fiasco. The only way to end this, in my opinion, is for every member in this House about whom there is a legitimate concern over their eligibility to be here under the Constitution to be referred to the High Court.

When there is uncertainty, the only entity with the ability and the power to deal with that uncertainty is the High Court. It's not up to us to try to make sense of these matters. I must apologise to some members of the media; I've been quite rude and had to pull out of some media commitments today, simply because we have been flat out lobbied to death by both the government and the opposition. One of the threads that has run through that lobbying has been trying to convince us of the merits of the evidence or the history of some of the government members, but the fact that there had to be that discussion, that debate—the fact that, during this session here, the Manager of Opposition Business has come up to the member for Mayo and repeatedly discussed, even debated, the circumstances in which someone would inherit American citizenship—means there's uncertainty. The fact that the two sides are debating over the eligibility of any one individual means there's uncertainty. The fact that the Prime Minister, the Leader of the Opposition, the Manager of Opposition Business and the Leader of the House have all spent so much effort today trying to persuade us of the merits of evidence means there is uncertainty.

Surely, when there's uncertainty, we then seek to have that uncertainty resolved, and the only way to resolve that uncertainty is to refer that member or those members to the High Court. It's not our job to understand foreign law. We don't have the competency to examine a copy of a document from another country or excerpts from the legislation of another country and make a decision about it. It's the High Court's job, sitting as the Court of Disputed Returns. It has the competency to examine that evidence and to make a decision. It's as simple as that. For all those reasons I will, as will the member for Melbourne and the member for Kennedy, support any effort in this House which is a genuinely fair and bipartisan approach. Because of that, I think the opposition motion which we are debating right now is a good motion.

For sure, it might well need some amendment. It might need some extra members added. We might even consider removing a member or two. But the approach is the right approach. It is a bilateral approach which seeks to bring fairness to this matter and which seeks, I think, to demonstrate to the Australian community that the parliament has come together and is acting collegiately to clean up our mess. I will support that sort of attempt to resolve this issue.

I will not support any move by any party which is basically some sort of hostile attack on individuals. I would not support, and I don't think any of my colleagues would support, any attempt to turn this into a succession of motions focusing on a succession of individuals. I would be quite concerned that that would become effectively a government hatchet job on the opposition.

I am not in the opposition and I hope I never am. I always want to be an independent, and I want to be the independent member for Denison. One of the roles of us here on the crossbench and us independents is to be the honest broker and, where there is unfairness or some improper conduct in this place, to stand up here, to speak about it and to try to rectify it. That's why we on the crossbench will only support referrals which are done in a bilateral way, in a fair way and in a way that can give the community some confidence that we are dealing with this effectively, decisively and unambiguously. So it is really up to the government, I suggest, to shift their position and to come around and understand that they need to work with the opposition. To the opposition I say: you need to work with the government and be open-minded to the requests of the government to come up with a consensus. That is the way to get the support of the five crossbenchers and the way to resolve this matter quickly.

It is simply not an option to leave this matter unresolved in this period before Christmas. It is simply not an option for the Australian community to stand around for the next couple of months, laughing at us, getting more and more angry with us and getting more and more disgusted with us, with some idea that we might come back next year. That is not an option.

Rebekha Sharkie (Mayo, Nick Xenophon Team) Share this | Link to this | Hansard source

I will only take a few moments of the parliament. I asked for my name to be added to this motion and I did that because I believe in transparency, I believe in equity and I believe in fairness. There has been ambiguity over my name and many other names. What we saw yesterday with the documentation put forward is that, whether the government likes it or not, there is ambiguity on a number of people's names.

Now, if you believe that you have nothing to hide and if the government believes they have nothing to fear, then the best way forward for every single one of us—so that we can hold our heads high in our communities when we are there on Monday—is to work together in a bipartisan nature and to make sure that every person with a cloud goes to the High Court. This cannot be a place for a protection racket of the highest order, and that is what the Australian community is seeing today. I beg both sides: work together. Let's get the names together and let's go to the High Court together, for we will all hang individually if we don't hang together.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The question is that the motion moved by the Manager of Opposition Business be agreed to.

The numbers for the ayes and the noes being equal, the Speaker gave his casting vote with the noes.

Tony Smith (Speaker) Share this | Link to this | Hansard source

As I've outlined to the House before, I exercise the casting vote in accordance with the principles that are long established and are outlined in House of Representatives Practice, on page 183. One of those principles is that, wherever further discussion is not possible, decisions should not be taken except by a majority. Given there's not a majority, in being consistent with those principles I exercise my casting vote with the noes.

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

May I have a brief indulgence?

Tony Smith (Speaker) Share this | Link to this | Hansard source

Yes.

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

First of all, while we obviously would have loved the casting vote to go a different way, I should put on the record, before Twitter takes off, that that was completely consistent with every precedent about the way the casting vote has been exercised. For all the arguments we have in this place, I think it's important that there not be an argument about that. I also indicate that in the debate we just had I referred to one of the references as being a 'self-referral', which was different to the others. I would now like the call to be able to move a motion on that basis.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The Manager of Opposition Business has the call.

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

I'm not sure if this motion has been circulated, so it's probably best to read it. 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) whether, by reason of s44(i) of the Constitution, the place of the Member for Batman (Mr Feeney) has become vacant;

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

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

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

In moving that motion, I make clear that, as part of the disclosure process that we set up, there was a clear expectation that documentation would be provided. In the process of that disclosure, the member for Batman was in a position where he was able to refer to documents that he believed existed but was not able to produce them. I made clear that, when we got to the point of dealing with referrals, I would be moving—at his request, I might add—that the matter be referred to the High Court. When you enter a disclosure regime, the expectation is that full disclosure will occur, and in this case, by the time we got to deal with the debate, it could not be.

I would flag that I believe this is the only matter before the House that can be legitimately referred to as a self-referral. There are still a number of issues that members on different sides of the House have with respect to other individual members. If the government wants to come to the table in the manner in which was suggested by the crossbench, the opposition is certainly willing to try to find a way in which we can have a resolution that can refer a number of people to the satisfaction of the concerns in the public, that will go through this House in a fairly swift way and that will allow the High Court to do the job that we all have expectations it will do—we just have different people we're expecting it of.

But this one is different. This one is a self-referral. The only reason it's being moved by me rather than the member for Batman himself is that the resolution said that I'm the one to move it; therefore I am. But it was very much at his instigation that he came to me and made clear that he had not been able to meet the standards required in time. While he continues to search for relevant documents in a disclosure process, there was a deadline yesterday—where they're debating it now—and the matter should be referred to the High Court.

Tony Smith (Speaker) Share this | Link to this | Hansard source

In accordance with the resolution passed on Monday, the motion does not require a seconder. The Manager of Opposition Business pointed out that his motion had not been circulated. For the clarity of members, the House staff are doing that now. I'd just like the Manager of Opposition Business to assist by confirming—it's certainly my understanding, having listened to the Manager of Opposition Business and having his previous resolution, which has just been negatived in front of me—for members of the House who wish to see the actual words that they're identical to part 1 of the resolution that was just negatived. That's correct, isn't it?

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

Yes, I can confirm that.

Tony Smith (Speaker) Share this | Link to this | Hansard source

Thank you. The question is that the motion moved by the Manager of Opposition Business be agreed to.

Question agreed to.