Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I seek leave to move a motion to take note of the government response to an order for the production of documents.

Leave not granted.

I move:

That so much of the standing orders be suspended as would prevent Senator McKim moving a motion relating to the Government's failure to provide a response to an order for production of documents concerning the Member for New England.

The reason I'm doing this in this way is that the Attorney-General is failing to provide the legal advice that the government is relying on in its quite abject defence of the Deputy Prime Minister, Mr Joyce. Certainly the Attorney-General has a right to decline to provide that legal advice, but it is the Senate's right to insist that the documents be produced irrespective of the claim for public interest immunity, because all we've got so far is a claim for public interest immunity made by a minister of the Crown. It is up to this place, the Senate, and all the senators in this place to determine whether it will accept that claim or, on the converse side of the discussion, to insist on the production of the legal advice. This suspension of standing orders will be, in effect, this Senate insisting that the Attorney-General provide the advice.

We've got a crisis in our democracy happening right now, as we speak. This is not just a crisis that is contained within the walls of this parliament or this chamber; it is a crisis of confidence in our democratic process out on the streets; in the pubs and the clubs, whether they be sporting or otherwise, of our country; and particularly around the dinner tables of ordinary Australians. We have a number of members of the Senate referred already to the High Court, sitting as the Court of Disputed Returns, and I'd bet my bottom dollar we will see more MPs referred to the High Court, sitting as the Court of Disputed Returns, as we move through the coming weeks and months.

What the Australian Greens want is evidence of two things, and really two things only. I am sure that the Senate will be prepared to compromise so that other matters can remain protected by a claim of public interest immunity. The first thing we want to see is the part of the legal advice that the Prime Minister was relying on when he issued his riding instructions to the High Court earlier this week and gave an absolute 100 per cent guarantee of certainty that the High Court would rule in favour of Mr Joyce remaining eligible to sit in this parliament, and that is that part of the legal advice that shows that the advice is unequivocal—in other words, that bit of the advice that allowed the Prime Minister to proceed with the 100 per cent level of certainty that he did earlier this week in the House of Representatives. What gives him and the Attorney-General such confidence that the High Court is, with absolute certainty, going to rule that Mr Joyce was eligible to be elected and therefore is eligible to remain as a member of parliament?

Remember, this isn't a humble backbencher we're talking about—I know humility's not a strong suit of Mr Joyce. This man is the Deputy Prime Minister of Australia, and within a couple of weeks he's going to be the Acting Prime Minister of Australia. He's going to be running the show at the same time as the High Court, sitting as the Court of Disputed Returns, is going to be considering how to respond to the reference by the House of Representatives of the Deputy Prime Minister, who will soon be running the country when the PM is overseas.

So let's have a look at that part of the legal advice that the government, the Attorney-General and the Prime Minister are relying on that shows that the advice is unequivocal. It's worth placing on the record that government experts and their own legal counsel have told us that it's pretty much black and white, as Mr Joyce said. The second element we're after is the part of the S-G's advice that demonstrates that the member for New England is legitimately authorised to remain and vote in the parliament. That is what we are demanding. (Time expired)

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

First of all, I should point out to the Senate that neither I nor my office nor, so far as I can establish, the government received any notice of this motion by Senator McKim to suspend standing orders. I know that Senator McKim hasn't been here for very long, but it is a longstanding courtesy of this chamber that a motion of this kind is only moved after notice has been given. I see Senator McKim giggling away up there on the crossbench. Senator McKim, if you're not prepared to extend your colleagues the ordinary professional courtesy that is always extended by colleagues in this chamber to one another, despite party differences, you do not belong here.

The motion is a motion to suspend standing orders so as to take note of the response of the government to an order to produce documents. The order to produce documents sought the production of legal advice—specifically, Solicitor-General advice. It is well known to every member of this chamber that, as a matter of course, governments do not publish their legal advice. That is a practice observed by Labor governments and coalition governments alike. The principle, which was stated by a former Labor Attorney-General, Gareth Evans QC, some years ago, is this:

Nor is it the practice or has it been the practice over the years for any government to make available legal advice from its legal advisers made in the course of the normal decision making process of government, for good practical reasons associated with good government and also as a matter of fundamental principle.

Former Senator Evans said that in this chamber on 28 August 1995. The practice to which former Senator Evans then referred is a practice that had been observed by every Australian government since federation and, although that statement was made in 1995, it has been observed by every Australian government since, including, most recently, by the Gillard government, when Senator Ludwig, who represented the Attorney-General of that government, during an estimates hearing on 26 May 2011 said:

To the extent that we are now going to go to the content of the advice, can I say that it has been a longstanding practice of both this government and successive governments not to disclose the content of advice.

And that statement is not only correct; it is uncontroversial—indeed, it is canonical.

Now—on no notice whatsoever—what Senator McKim seeks to do is to overturn 116 years of constitutional orthodoxy. Of course the government will not be producing legal advice because we will be observing the fundamental, well-established and never-questioned constitutional orthodoxy that governments do not produce their legal advice. And I look forward to hearing Senator Collins, who represents the Labor Party in the chamber at the moment, confirming that that is the Labor Party's understanding of the constitutional orthodoxy.

The question of Mr Joyce was referred by the government, of its own free choice, to the High Court, sitting as the Court of Disputed Returns, on Monday of this week after receiving Solicitor-General advice and after having considered that advice. On the basis of the government's consideration of that advice, we have taken the position that we have taken. Nevertheless, the matter is going to be argued before the High Court in coming weeks and, because of that, of course it would put the parties in an impossible position if the legal advice on which the government acted, which was received confidentially, were to be published.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

The opposition will not be supporting this suspension of standing orders today. This is not for the reasons advanced by Senator Brandis, however. He characterises courtesy in this chamber around matters around the order for production of documents. Yet I can recall not long ago Senator Birmingham refusing to respond to a Senate order for production of documents on that occasion. I can recall countless suspensions of standing orders that have occurred following the chamber's refusal to allow a senator to take note without any notice.

Senator Brandis interjecting—

'An issue of this kind,' says Senator Brandis. Well, I'm sorry, Senator Brandis, but I also differ with your characterisation about the position with respect to legal advice—but once again you will say, 'Not on matters of this nature.' There have been countless situations where, with careful consideration, government has provided legal advice.

I would like to make it very clear that the opposition thinks the Attorney-General should comply with the Senate's order yesterday for the production of documents. This Attorney-General is a serial offender when it comes to ignoring orders of the Senate, particularly when it comes to orders for production of documents. This is a very serious matter as it deals with the eligibility of the member for New England and Deputy Prime Minister to sit in the other place and, indeed, hold the second-highest office of the land.

We will not be supporting this suspension of standing orders for a few reasons. Firstly, the time frame for compliance with the order of the Senate was midday today. And while we note that the Attorney-General has not met this deadline, it is still now only around 90 minutes past that time. We would use this opportunity to remind the Attorney-General of the seriousness of the matter that surrounds this order for the production of document and we call on him to comply with the order as a matter of urgency. Secondly, we do not respect that the government does not always release legal advice. This is a matter that needs to be considered seriously. Thus, there is some flexibility in Labor's position about the time frame. However, it is open to the Attorney to release appropriate redacted advice that meets the order of the Senate without prejudicing hearings.

We also note that the matter surrounding the Deputy Prime Minister's citizenship is shortly to be before the High Court of Australia. I do, however, foreshadow to the Attorney-General and the government in the Senate that the opposition will be watching compliance with this order very carefully. It is open to pursuing this matter in the next sitting period in this chamber. We aren't supporting Senator McKim, because in this attempt to censure Senator Wong he has only given us as much notice as he gave the opposition yesterday. It is for these reasons that the opposition will not be supporting the suspension today.

Derryn Hinch (Victoria, Derryn Hinch's Justice Party) Share this | Link to this | Hansard source

I will be supporting the Greens' move to suspend standing orders because I do agree with Senator McKim that it is a matter of major importance. Here we have this man, the second-highest officer in the land, the Deputy Prime Minister, holding onto his job there. The Attorney-General, himself, stood alongside Senator Canavan when he relinquished his ministerial position and his place in cabinet and said he would not vote until the High Court hearing had been done. I think that was right and proper. I saw the Deputy Prime Minister on Sky News last night. He didn't seem to be showing much remorse, given the situation. This should be discussed, and I agree that the standing orders should be suspended.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

This is a motion to suspend standing orders to deal with a matter that has already been raised a number of times in this chamber. If there is any doubt whatsoever about any member of parliament, the right institution to determine that is the High Court, not a kangaroo court of this chamber, which the Greens keep trying to set up.

I say to Senator McKim, by interjection, that it has been raised in several newspapers that he is English-born and has never, as I understand it, shown any material on how he has renounced that citizenship.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator McKim, a point of order?

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Senator Macdonald is misleading the Senate. What he has just said is false.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

That is not a point of order.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

Perhaps, if Senator McKim takes some umbrage at that, he could easily fix it by tabling the documents in the Senate, which is what he asked everybody else to do. You see, it is always one rule for everyone else and a separate rule for the Greens political party. I might say to anyone having the misfortune to listen to this debate that Senator McKim was once a minister in a government—albeit, the government of Tasmania—

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator McKim, a point of order?

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

He's taking pot shots at my home state of Tasmania, which I resent and which every Tasmanian will resent.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

It is not a point of order.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

Thank you, Mr Acting Deputy President. You can see this particular senator has no respect for the chamber and keeps trying to stop other people from having their say, which is typical of the Greens. They always rail about freedom of speech. They talk about it for everyone else, but when people try to say something they continually take alleged points of order which they know are not points of order.

As I was saying, Senator McKim was—would anyone believe?—once a minister in a government, albeit the government of Tasmania. I might ask Senator McKim: how many legal advices did the government of which you were once a member release publicly? I put the same question to Senator Collins. We've heard what Mr Gareth Evans, former senator and Attorney-General, said about releasing legal advice. Senator Collins, you might indicate to us how many times your party in government did that. If it is one or two, I would be interested in hearing about it. But I certainly follow the dictum of former Senator Evans in relation to legal advice. I invite Senator McKim to indicate how many times the government of which he was a member released legal advice.

Senator McKim, in his flowery speech, spoke about a crisis of confidence in democracy. If there were ever an example of a crisis of confidence in democracy, it is the Greens political party. Time and time again we see the Greens political party wasting the resources of this parliament and stopping proper debate on an important bill that the government is trying to deal with by this Mickey Mouse suggestion of getting some legal advice. I refer to a Greens motion where they set up, with the support of the Labor Party and the Xenophon party, a committee to look into a matter of political donations, which is exactly the same thing a joint standing committee—a permanent standing committee of this parliament—is looking into at this very moment. It is exactly the same thing, exactly the same subject, and yet the Greens political party, supported by the Labor Party and by Senator Xenophon, are setting up yet another committee to do exactly the same.

So we're going to have two parliamentary committees inquiring into the same thing. Witnesses are going to be confused. We're using the resources of the Senate, which are limited—you wouldn't believe it if you saw the number of ridiculous inquiries the Greens have set up. The resources of the Senate are limited. Those resources should be directed towards real inquiries, not something where another committee is doing exactly the same. Mr Acting Deputy President, there, in that corner, where the Greens sit, is the crisis in democracy in Australia.

Sam Dastyari (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I just want to reiterate the comments of my fellow senator, in that we won't be supporting this suspension of standing orders. I'm going to be very brief here because I know other senators want to speak. I want make a little bit of a point with what Senator Macdonald said a moment ago. There have been instances where governments have made a decision to release legal advice.

A government senator: After the event.

No, not only after the event. In September 2011, the Gillard government released the Solicitor-General's advice about offshore processing. In February 2000, the Howard coalition government released the Solicitor-General's advice about amendments to the Ministers of State Act. And, in August 1995, the Keating government released the Solicitor-General's advice relating to the Marks royal commission. My point is that there have been examples, both before and after events, where it has been done. There has not been a tendency at all times to do that. That's something that certainly on this side of the chamber we agree with.

I want to note that one of the arguments that was made was that no proper notice has been given for the production of documents and for the suspension motion. I would note that yesterday morning those of us on this side of the chamber came in to find out that suddenly there was a censure, or a proposal, and a suspension of standing orders.

Senator Brandis interjecting—

Only moments beforehand. So, on this idea that the notice is the issue, it is not that.

I do however believe—and I know that others of us on this side of the chamber believe—that this is an important, complicated, significant debate that needs to be had. It has to be had in a rational and timely fashion. I again congratulate the Attorney-General for the words that he spoke in this chamber last week on this matter, broadly around the section 44 matters, where he said that there is a responsibility for us to act maturely—I am paraphrasing here—without stance and in a sensible manner because the integrity of this place gets held to account with that. I believe, and I believe that those of us on this side of the chamber believe, that, while it's proper for people to make claims for documents, and we'll support them from time to time in doing that, the idea of suddenly upending the Senate to try and grandstand on this issue at this point in time would certainly not be an appropriate way of doing that. The complexity of these issues—and they are complex issues—is best served by a mature, sensible debate around these matters, and I echo the words the Attorney-General used, as did Senator Farrell, in the chamber about this matter last week.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I rise to speak in favour of this suspension of standing orders. The reason is, of course, that we have asked the government to release the much-relied-upon legal advice. We're about to leave this chamber. Parliament's about to rise in some 2½ hours. There won't be an opportunity for votes. People are going to be getting back on their planes and going home for two weeks. Meanwhile, we have a Deputy Prime Minister who is apparently both an Australian citizen and a New Zealand citizen and therefore not eligible to be in the parliament, according to the Constitution.

When we talk about timeliness and we talk about the seriousness of this issue, cry me a river from the government when they want to complain that we've just sprung this upon them. All week the government have said that they rely on this legal advice from the Solicitor-General and that we should all just trust them. The Australian people are sick and tired of just being told, 'Trust us,' by the Turnbull government. I can tell them: they do not trust you. They do not trust you!

Only weeks ago, the member for New England, Barnaby Joyce, said there were no problems, that he'd done all the paperwork. His office phoned up and told a journalist, 'Everything's A-OK, mate.' It turns out that it wasn't. They asked the Australian people to trust them, and they blew it. He's not fit to be in the government, on the front bench as a minister, let alone—

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Brandis on a point of order?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The Senator is reflecting on Mr Joyce.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator McKim on the point of order?

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Yes, thank you. What Senator Hanson-Young was doing was commenting on a matter that has been widely commented on in both the Senate and the other place this week, and that is whether or not the Deputy Prime Minister has been legitimately elected to the parliament. That's what she was commenting on and that has been a matter of continual comment for the entire week.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Brandis, I will hear from you again.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Thank you, Mr Acting Deputy President. Standing order 193(3) says:

(3) A senator shall not use offensive words against either House of Parliament or of a House of a state or territory parliament, or any member of such House, or against a judicial officer, and all imputations of improper motives and all personal reflections on those Houses, members or officers shall be considered highly disorderly.

Contrary to what Senator McKim represented, what Senator Hanson-Young said was that Mr Joyce was not fit to occupy the offices that he has occupied: not eligibility—not a legal question—but fitness, and that is plainly a reflection upon his character.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Brandis has taken offence to the words you've used, Senator Hanson-Young, and as a consequence of that you need to withdraw.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I do not see how—I would like a ruling from the chair.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I have just ruled. So it is no longer for debate; you either withdraw or not.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I am happy to withdraw, but I will be writing to the President and asking him to reflect on whether a minister who is ineligible to be elected to parliament is fit to be a minister.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

You have withdrawn. Thank you for that. You are free to consult the President, as any senator is. I will ask the clock to start and you have the call.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Thank you, Mr Acting Deputy President. It seems that the government, of course, is incredibly nervous about releasing the legal documentation that they have and that they are relying on, to keep the member for New England, the Deputy Prime Minister, in protection.

The member for New England, Barnaby Joyce, seems more protected than the bilby. This is a ridiculous situation, when we have the government of the day saying that we need to rely on their word and the word of the Solicitor-General. They do not release the documentation but say that we should just all suck it up, that Barnaby Joyce remains Deputy Prime Minister. No-one trusts you. No-one trusts that you are doing this for the legitimate and right reasons. No-one believes you.

We all know what this is about: this is because you have a very slim majority in the House! The member for New England holds his seat by a very slim margin. Let's call this for what it is: a protection racket for the member for New England and for the numbers in the House for the Turnbull government. This is absolutely what this is. This is covering up the incompetence of the Deputy Prime Minister. I don't think anyone out there in the Australian public is particularly surprised that the member for New England didn't check his paperwork. Do you think anyone is surprised at the incompetence of the Deputy Prime Minister, Barnaby Joyce? I don't think so. I don't think so at all!

Look at the other foolish things that the Deputy Prime Minister has done in recent months. He has no regard for the position of Deputy Prime Minister. If he did, he would resign. If he really cared about the institution which he holds, and the institution of which he is part as a minister, he would resign. This has made the government a joke—an absolute joke! It's a farce and everybody can see it. Everybody can see what a farce this is. A protection racket is going on here. The member for New England is not even legitimately elected and he gets to sit there as Deputy Prime Minister. In a couple of weeks, when the Prime Minister goes overseas on diplomatic work, he's going to become the Prime Minister. What type of farce have we got when we have the acting Prime Minister of Australia as someone who couldn't be bothered to do his paperwork, lied about it, tried to cover it up and got caught out, and is now only there because of the protection racket being run by the Turnbull government?

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the motion moved by Senator McKim to suspend standing orders be agreed to.