Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Hansard source

I am very pleased to have the opportunity today to speak on this matter. I believe that the issue of public confidence and public trust in the Australian parliament is an issue of the utmost importance, as this place is the place where governments are formed and the shape of our nation is altered. It is imperative that the Australian public hold this place and its occupants in the highest regard and are convinced that their elected representatives carry out their obligations with judgment, with diligence, with honesty and with integrity.

Most recently, there has been a great deal of debate about the actions of the member for Dobell, particularly in the light of the report by the investigator acting as the delegate of the general manager of Fair Work Australia, which was tabled recently in the Senate and was indeed the subject of the statement made by the member for Dobell yesterday. The report, of course, made a number of findings against the member for Dobell and I would be remiss if I did not say I share the concerns of many in this place at the findings in this report. They are disturbing findings; they are distressing findings. No right thinking person could fail to be disturbed at the findings made by the investigator of misuse of the funds contributed to the union, which represents some of the lowest-paid workers in Australia. Yesterday we saw a lengthy statement by the member for Dobell, a statement in which the member for Dobell outlined very personally the impact that these events have had on his life and, of course, he maintained very strongly his claims of innocence. It is worth noting that this was a statement that the opposition had been calling for and that it was a statement he made in response to those calls. I should also say that, as I understand the position, the reason that the member for Dobell had not made the statement before now was on legal advice.

I think that the topic for this matter of public importance is well chosen. It draws attention to the tasks we have before us as members of parliament, and one of those important tasks is to maintain the integrity of this parliament. But we are not a court; parliament is not a court. Despite the baying and shouting from those opposite they have offered nothing concrete. This is why the member for Lyne has raised this matter of public importance; those opposite have raised no concrete suggestions as to how the matters raised by the report of Fair Work Australia can actually be dealt with. We are not here in some American TV crime series: we are not investigators, we are not police and we are not a court. As a democratic country we have very well developed institutions: we have police forces, we have investigators and we have different regulators for many parts of our society. And we have courts, and these matters need to be left to the courts.

We are not a body that can consider evidence in the way that a court does. Listening to the statement made yesterday in this place for nearly an hour by the member for Dobell, one of the first things that struck me was the near impossibility of sifting claim and counterclaim, sifting allegation and counterallegation and sifting the vast body of factual material which forms the subject of the Fair Work Australia investigator's report. Those matters—that process of sifting and assessing and judging—are quintessentially matters that are dealt with by courts. They are not matters that this parliament is set up, either historically or actually, to deal with.

We are not well placed to determine it, nor is it our role is to determine whether the member for Dobell has correctly stated the position, or whether the findings made by the Fair Work Australia investigator are true. We are not in a position to assess the claim and counterclaim, even though—and this has been pretty clear from the public debate and clear from some of the statements made in this House—many of us may question parts of the explanation. That is why this matter is going to go to the courts.

I need to make it clear, just to put to rest the suggestion that the matters raised by this Fair Work Australia report are not presently before the courts. The general manager of Fair Work Australia has said publicly that she has instructed lawyers to prepare legal proceedings in respect of the findings arising from the investigations into the HSU national office and the HSU Victoria No. 1 branch. The general manager of Fair Work Australia has the power to apply to the Federal Court of Australia under section 336 of the Fair Work (Registered Organisations) Act 2009 and she indicated in her statement on 14 March 2012 that she would do just that—that she would instruct the Australian Government Solicitor to apply to the Federal Court for penalties and other orders in relation to contraventions of civil penalty provisions. She also indicated that she would apply to the Federal Court for declaratory relief in relation to three additional contraventions described in the Fair Work Australia investigator's report, those not being civil penalty provisions.

So, on any view, this matter is going to court. It is going to the proper forum at which these matters will be looked at and at which the claims and the counterclaims that have been made yesterday by the member for Dobell can be assessed in their proper place. One is left to wonder what it is that those opposite are wanting here. We have legislation passed, indeed, by the Howard government. These provisions—these investigation provisions, these civil penalty provisions and this referral to the Federal Court provisions—are all of them Howard government legislation, indeed, passed when the member for Warringah, the present Leader of the Opposition, was the responsible minister.

Are they saying, perhaps, that they do not wish this matter to be finalised by the courts? I hope that they are not saying that. We, on this side of the House, want this resolved for the benefit of the long-suffering members of the Health Services Union, and we want that to occur before the Federal Court, which is the appropriate place for these matters to be resolved. They cannot be resolved here. That is a key point that should not be lost. The actual matters that are the subject of this Fair Work Australia report cannot be resolved in this place.

There are a number of options that the parliament can consider in relation to the member for Dobell. But we need to think carefully in considering what actions might be taken: whether the actions that are taken actually will increase the regard that Australians hold for this House and for this parliament and whether it is the proper place for this House to act in the manner that is put forward. I will come back in a moment to the suggestion that has been raised here by the member for Lyne. But just to look at the range of options: some have suggested that the House should suspend the member for Dobell, some have suggested—completely without basis—that the House should expel the member for Dobell and some suggestions have been made of censure. I just note that it is worth reminding the House that this place no longer has the power to expel members. The power once existed but was removed by the Parliamentary Privileges Act of 1987, and for good reason.

The power of expulsion was used once before, in 1920, to expel the member for Kalgoorlie, the Hon. Hugh Mahon, for what were said to be seditious and disloyal utterances. The member had expressed publicly sympathy for the Irish republicans and opposition to the British policy in Ireland. The power was abolished on the recommendation of the final report of the Joint Select Committee on Parliamentary Privilege in 1984. This was a bipartisan committee consisting of members of the Labor Party and members of the Liberal Party—indeed, members of the Liberal Party back then in 1984, who had a great deal more respect for the institution of this parliament, for the conventions of this parliament and for the institutions of Australia than the present opposition demonstrates on a daily basis. The present opposition demonstrates on a daily basis nothing but contempt for the conventions of this parliament and for the institutions of our country. The Joint Select Committee on Parliamentary Privilege noted in 1984, in relation to the dangers inherent in a system where a partisan vote can determine whether a parliamentarian is fit to remain in office—and, one might add to that, where a partisan vote can be brought to bear on a censure or on a suspension:

Looking back to the Mahon case—

which is the only time when a member was expelled—

one is struck by these features: the speed with which the motion was brought on; the limited time for debate; the haste in which such an important matter was determined; and the vote on party lines.

They emphasise:

… the only case in federal history when the power to expel was exercised is … when … the power was demonstrably misused …

I think that the bipartisan authors of that report would be very concerned to look at what has been occurring in this parliament in recent days. We might, in fact, be seeing some evidence of something similar to what occurred at the instance of then Prime Minister Billy Hughes back in 1920, when, relying on the numbers that he commanded in the House of Representatives, he used them to expel a member of the House.

There should be no suggestion that the parliament should assume what would be a wholly inappropriate role for this parliament, that of the courts—or, even more than that, that of judge and jury—for partisan political ends. Suggestions that the member for Dobell should be censured are troubling for the same reason. Taking action to censure the member, to expel the member, which is now not open, as I have pointed out, or to suspend the member, I would suggest, will not result in an increase in the parliament's prestige—quite the opposite. That is particularly so if the purpose of the censure is to draw attention to matters which occurred before the member became a member of this House.

What I am pointing to is the fact that there have been a very small number of examples in the history of this parliament when the censure power has been used. There have been only four occasions since Federation, but the most recent occasions were both in 1995, when this House censured the member for Barker, Mr McLachlan, for misleading the House on the source of documents relating to the Hindmarsh Island Bridge matter, and when the House censured the member for Chisholm, Mr Wooldridge, in August 1995 for intentionally misleading the House during a personal explanation relating to the Penny Easton matter. What is notable is that it is in some doubt, according to House of Representatives Practice, whether or not even those censure motions were within the traditional purpose of a censure. House of Representatives Practice notes 'the parliamentary convention that the traditional purpose of a vote of censure is to question or bring to account a minister’s responsibility to the House'. The Practice goes on to note on page 322:

Furthermore, given the relative strength of the parties in the House, and the strength of party loyalties, in ordinary circumstances it could be expected that a motion or amendment expressing censure of an opposition leader or another opposition Member would be agreed to, perhaps regardless of the circumstances or the merits of the arguments or allegations.

That is, of course, what happened back in 1920, when there was an expulsion on party lines.

I note that the member for Lyne has put forward the possibility of moving a censure motion which would be directed not at the conduct of the member for Dobell before he became a member of this House but rather at, as I understood the member for Lyne, the delay by the member for Dobell in making a statement in explanation of the allegations that had been raised. That, I can say without pre-empting a decision made on this side of the House as to the way in which we would treat such a censure motion, would at least be within the past practice of this House—not totally within the conventions of this House but at least within some past practice—because it focuses on conduct in the House. That is a very important distinction which I would invite all honourable members to reflect on: that when we are thinking about what is to be the way in which this House responds, if it chooses to respond at all, it needs to be focused on parliamentary conduct. It is wrong to devalue the very special place that the legal system—the court system—has in our society, and if we are to embark to displace it then it would cut against all of the separation of powers that sits at the heart of our democracy. (Time expired)

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