Matt Thistlethwaite (NSW, Australian Labor Party) Share this | Hansard source

I rise to give voice to the forgotten people of Gilmore in my home state of New South Wales whose needs are being ignored by the member supposed to represent their interests in the other place. Last Saturday the member for Gilmore stood for and was elected to the position of Mayor of Shoalhaven City Council. The member has taken up that job but proposes to stay as a member of parliament. With this act the member for Gilmore betrays her constituents. She abandons them in pursuit of her own political desires. She tells the people of Gilmore that her career is more important than their democratic rights, that she is more interested in the glory of the mayoral robes than in giving them a voice in the House of Representatives. The member for Gilmore is well and truly trashing the democratic rights of her constituents.

It is not just the rights of the people of Gilmore that are being trashed. In holding dual roles as the member for Gilmore and Mayor of Shoalhaven City Council she is thumbing her nose at the Australian Constitution. Senators may be aware that last Friday, 7 September 2012, esteemed constitutional law academic and barrister Professor George Williams published an article in the Sydney Morning Herald which raised serious questions about whether it is constitutionally valid for the member for Gilmore to continue to sit in the House of Representatives now she has been elected mayor. According to Professor Williams, 'there is a real prospect' that the member for Gilmore 'will breach the Australian Constitution' if she continues to sit as an MP after being elected mayor. This is very concerning indeed.

As Professor Williams explains, subsection 44(iv) of the Australian Constitution states that anybody who holds an 'office of profit under the Crown' is disqualified from sitting as a member of the federal parliament. It is possible that the member for Gilmore's newly acquired position on local government could constitute a prohibited 'office of profit' and, if so, she is therefore ineligible to sit in the parliament.

Worryingly, as Professor Williams notes, the High Court of Australia has taken a 'surprisingly strict approach to section 44'. In 1992, the High Court applied this to disqualify Phil Cleary, who had been elected as the Independent member for the federal seat of Wills, because his position as a state school teacher was a prohibited 'office of profit under the Crown'. In 1996, Jackie Kelly was disqualified as the Liberal member for Lindsay because she was an Air Force officer, also a constitutionally prohibited 'office of profit under the Crown'. So there is a worrying risk that the member for Gilmore is disqualified from sitting in the House of Representatives.

Now the member for Gilmore is peddling a range of excuses for placing her constituents in such a terribly dubious position. The member claims she can point to about 20 examples of past members who have held dual roles as MPs and councillors, but most of these people simply held office as councillor, not mayor, and we all know there is a big difference. Everyone knows that mayors have much greater responsibilities than normal councillors.

There is another reason the member for Gilmore's position is different to those who held dual roles as councillor and MP in the past. For past MPs, service as a councillor was their life before federal politics. All the examples I can recall involved people who started out in local government, retained this position for an overlapping period after they were elected to the federal parliament and then resigned from council. After resigning from council, the members in question focused their energies entirely on the federal parliament. There was never any question that giving their constituents a voice in the House of Representatives was their main focus. But the member for Gilmore is doing things the other way around. She started out in the federal parliament and has now been elected mayor. She intends to mark time in the other place until the next election, when she will resign and continue her career in local government. It is quite clear that the member's main focus is her position as mayor.

Another excuse the member for Gilmore offers is that her mayoral position does not count as an 'office of profit', because she is not being paid a proper salary for this position. The member asserts that she is receiving a mere 'reimbursement of expenses'. I think many of her constituents would dispute the member for Gilmore's characterisation of these payments as a simple 'reimbursement of expenses'. According to the Report and determination of the Local Government Remuneration Tribunal under sections 239 and 241 of the Local Government Act 1993 from 28 April 2012, the member stands to receive quite a hefty benefit as a result of being elected mayor. According to my reading of the figures, as the Mayor of Shoalhaven City Council, which sits in the 'regional rural' category for the purposes of the determination, the member for Gilmore will be eligible for a payment of up to $17,060 per annum for her general service on the council, plus an additional mayor's fee of up to $37,230 per annum—that is a potential payment of up to $54,290 per year. I may come from a different part of the world to the member for Gilmore but, to me, $54,290 per annum is nothing to be sneezed at. In fact, thousands of the member for Gilmore's constituents earn less than $54,290 per annum.

The member for Gilmore's 'reimbursement of expenses' argument puts her at odds with her own Liberal Party colleagues. Former Senator Nick Minchin, Liberal Party elder statesman and former leader of the Howard government in this place, gave evidence to a parliamentary inquiry that being a councillor could disqualify you from sitting as an MP according to advice he received when he was running election campaigns on behalf of the Liberal Party. This advice was apparently so compelling that Mr Minchin made all eight candidates who held office as councillor resign their positions before they nominated to represent the Liberal Party in that particular campaign. We also know that the member for Gilmore's NSW Liberal Party colleague Premier Barry O'Farrell recently banned state MPs from serving as councillors because, he said, it was a 'conflict of interest'. This tells us exactly what Mr O'Farrell thinks about parliamentarians who double-dip in the fashion of the member for Gilmore.

We know that, on the very first working day after her election as the Mayor of Shoalhaven City Council, the member asked for a pair in the House of Representatives, and sought leave so she could be briefed by council officers on local government issues. More importantly, as Professor Williams points out, unless the member for Gilmore fails to absent herself from the other place while these questions remain, 'there is a risk that that laws will be passed or rejected on the vote of a person who is ineligible to sit'. As Professor Williams observes:

The federal Parliament is responsible for approving considerable sums of money for local government. Federal laws can also affect the rights and responsibilities of councils. Where interests do not coincide, would Gash—

the member for Gilmore—

give priority to her local government area or federal electorate?

The constituents of Gilmore deserve a full-time MP who takes their democratic rights seriously. If the member for Gilmore had any integrity, if she had any fidelity to the trust that her constituents had placed in her, she would not leave it up to them to clarify her constitutional eligibility; she would sort it out for herself by resigning from parliament now.