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

by leave—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—

(a) whether, by reason of s44(i) of the Constitution, the place of the Member for New England (Mr Joyce) 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.

This is the first time that the House of Representatives has been asked to move such a motion to resolve a matter of the status of one of its members, so in fact we are making history here today in the House of Representatives.

The government remains absolutely confident that the Deputy Prime Minister is not disqualified under section 44(i) of the Constitution. It is the Deputy Prime Minister who has asked for this matter to be referred to the High Court in order to determine his status, his position here in the parliament. He has done that for two reasons in particular. The first is that we have reached the stage where it is necessary for the High Court to determine what section 44(i) means in the modern era for the Australian parliament. There have been many different references and actions taken, over many years, in the High Court, sitting as the Court of Disputed Returns, but clearly—

Opposition Members:

Opposition members interjecting—

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

I won't be tolerating any interjections on this matter.

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

It would be quite unwise for some members on the other side of the House to be interjecting on this matter.

It is time for the High Court to be given the opportunity to make a determination about what section 44(i) of the Constitution means in the modern era. Just to give an example, as the Deputy Prime Minister said when he made his remarks at 10 o'clock, there was no such thing as Australian citizenship before 1948. Everyone before 1948 was a British subject. Does that mean that every member of the House of Representatives and the Senate before 1948 bore an allegiance to another foreign power, in that case the United Kingdom? These are things that have become very important in the modern era, and it's time the High Court gave us a very clear ruling about what section 44(i) of the Constitution means.

Of course, the second reason the Deputy Prime Minister has asked for this referral to occur is that the government has acted ethically in all these matters. As soon as it came to the attention of the Deputy Prime Minister that this might be an issue, he acted entirely ethically and correctly, as you would expect him to do as a person of upstanding character. When he was informed by the New Zealand High Commission, he took immediate action. The government has had very clear legal advice from the Solicitor-General that the Deputy Prime Minister is not disqualified under section 44(i) of the Constitution, but we wish to test that in the High Court to give them the opportunity to determine that. Because we are so confident of the Deputy Prime Minister's status, he will continue to participate fully in the House as the member for New England and he will continue as the Deputy Prime Minister and Minister for Agriculture and Water Resources.

I thank the Manager of Opposition Business for giving leave for this motion to come forward and I commend the motion to the House.

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

The Opposition will be supporting this motion. The Leader of the House is right when he says we're making history, but we're making history for a slightly different reason to what the Leader of the House just said. This is the first time in the history of this parliament that a government has asked the High Court to determine whether in fact it has a majority. That's what's being resolved here. This is a government reliant on a majority of one—a majority of one that has made real differences in terms of outcomes. A majority of one was the reason we didn't get a vote for a banking royal commission over the line. It was a majority of one that determined that hundreds of thousands of Australians would get a pay cut on 1 July. A majority of one makes a difference to which side of the chamber the members sit on, who's in government and who's in opposition, and which laws are passed and which laws are not. And what the House is doing right now is saying to the High Court, 'We're not actually sure if the government does have a majority of one.' It is saying to the High Court of Australia that we have been here for 12 months making laws with a government that may or may not be legitimate, with a parliament that may or may not be voting according to the Constitution of this country. The motion that is before the House right now is groundbreaking because the government itself has had to come to this chamber and acknowledge that it doesn't know whether or not this is a majority government. It doesn't know whether or not this is a legitimate government. That's the question that's before the House right now.

And let's not pretend about the reason the Deputy Prime Minister came in this morning at the first available opportunity to make his statement to the House. You've only got to go online to Fairfax to see the article where Adam Gartrell and Amy Remeikis have said the Deputy Prime Minister 'has referred himself to the High Court following questions from Fairfax Media about whether the Deputy Prime Minister could be a dual citizen of New Zealand and ineligible for parliament'. The speech we were given this morning wasn't because of an immediate new piece of information or crisis of conscience from the Deputy Prime Minister. It was because he had been found out anyway. That's why this has happened today. And that's why today we are entering new ground where every day now we will not know whether or not this is a majority government, every day now we won't know whether, for 12 months, this government has been operating without a majority, whether for 12 months this government has been getting laws through this parliament, changing the lives of Australians, often for the worse, and doing so without a majority in terms of the Constitution of the country.

But even if you were to go to the low standards that this government chooses to set for itself, it's even decided that the standards it's set aren't low enough—because how different is this to the treatment that was given to Senator Canavan? The argument from Senator Canavan was:

… given the uncertainty around this matter, I will stand aside until the matter is finally resolved and resign as the Minister for Resources and Northern Australia. I have informed the Prime Minister of that course of action.

But we're not getting a deputy prime minister standing aside. We're not getting a deputy prime minister who actually was the person who got that resources job added to his portfolio as a result of that decision. Now that he's got the job, he's wanting to hang on to it and won't let his fingernails claw away. He's making sure that he won't loosen his grip on the extra power that he's been given following Senator Canavan making that decision.

And so what the House is deciding today is acknowledging that we don't know whether this parliament currently has a member for New England under the Australian Constitution. We don't know whether this government has a deputy prime minister eligible under the Australian Constitution. And we don't even know whether we have a majority government in this country. This is a phenomenal change and level of instability that this government have. We knew there was instability within their party room; now we know there's instability here on the floor of the parliament itself.

I say to those opposite: never during the period of the hung parliament was there a question as to whether somebody had been elected under the Constitution, and yet the Leader of the House kept pointing to people who had been elected and saying, 'Don't accept their vote.' I say to the Leader of the House: with this resolution that's in front of the chamber right now, how on earth can you accept the vote of the Deputy Prime Minister? How can he be the Deputy Prime Minister when the standard was set by the former minister for resources that you should stand aside if there's uncertainty? If there is no uncertainty, why are on earth are we referring the matter to the High Court? We could only be referring the matter because there's uncertainty, because we don't know. If you don't know, how on earth can you rely on that vote? How on earth can this parliament be claiming to have a majority government, relying on the vote of someone for whom they don't know whether or not he's been lawfully elected? How on earth can this government have somebody in the office of the Deputy Prime Minister when they don't even know if he's meant to be a member of parliament?

And if the former Minister for Resources and Northern Australia was able to stand aside, even though he had the Attorney-General beside him, claiming that he had a strong case, then why on earth is 'a strong case' the defence for the Deputy Prime Minister? How on earth does that work? It cannot be the case that the words of the Attorney-General in defending Senator Canavan and why he wouldn't resign from parliament were correct, because he apparently had a strong case and yet stood aside. But if it's the Deputy Prime Minister, the person who is the architect of the coalition agreement, that secret deal, with the Prime Minister on which the fate of this government hangs, in that situation the rules all change.

People will look at this parliament and see a level of chaos that has not been seen for generations. We have never before in this parliament—in this room or when we were down at Old Parliament House or, for that matter, when we were meeting in the exhibition centre in Melbourne—had to go to the High Court and say, 'Look, we're really not sure if there's a majority government in this country.' But that's what the parliament's resolving right now. There is nothing routine about this. And if there was any level of principle on those opposite then two things would happen: (1) the Deputy Prime Minister would stand aside and (2) they would not accept his vote.

I appreciate that with respect to the other member who's at the table right now—there's a High Court case running at the moment—his view is that it shouldn't have been referred to the court, that it's others who've referred it to the court, so he's going to keep on voting, as members may have done in the past. But this is a Deputy Prime Minister who stood up and said that there is enough uncertainty that we need to refer it to the High Court. This is a Deputy Prime Minister who himself opened parliament today saying that he's not sure whether he's validly elected. That's why it's being referred to the High Court. You don't refer something to the High Court because you think there's no doubt; you refer something to the High Court because you just don't know. And if you just don't know, you should not be Deputy Prime Minister of Australia right now. If you just don't know, we should not be relying on your vote, and we should not have a situation where penalty rates were cut off the back of your vote, where we don't have a banking royal commission on the back of your vote.

This was always a government that claimed to have a strong working majority and had a problem getting everyone to turn up for work. But as of today, that majority government is in question. And those opposite will either deal with it responsibly or just do what we've seen the Prime Minister do—do and say anything to try to cling to power. It's being referred to the High Court because we don't know. And if we don't know, two things should happen: the Deputy Prime Minister should stand aside, and he should not exercise a vote in this House until the matter's resolved by the High Court.

Question agreed to.