The government has asked the High Court to hear the dual citizenship cases of several current and former MPs on September 13-14, saying there is a “compelling public interest” for the matters to be determined as quickly as possible.
In a submission to the court on behalf of Attorney-General George Brandis, Solicitor-General Stephen Donaghue also flags that Brandis would seek to appear in the case. In practice, the attorney-general would be represented by the solicitor-general.
The matters raise important issues about the proper construction of Section 44 (i) of the Constitution, and attorneys-general have appeared in relevant previous cases, the submission says.
The High Court has a directions hearing on Thursday. Brandis said at the weekend that while the government would ask the court to deal with the citizenship issue urgently, “I think realistically that may be in the first fortnight of October”.
The submission says the Commonwealth has already obtained legal opinions from leading lawyers, in Italy on Canavan, and in New Zealand about Joyce.
“The experts conclude that, for the purposes of the domestic law of each country, senator Canavan and the Hon Barnaby Joyce MP are, or were, citizens of Italy and New Zealand respectively.
“The attorney-general understands that this conclusion will not be disputed in either reference.”
The government proposes also to seek opinions about the citizenship of the others referred to the court.
These would be sought from:
Laurie Fransman of the UK bar. He has already given an opinion on Nash, whose father was a Scot, and “it is anticipated that he could provide a further opinion in relation to senator Roberts very quickly”. There is dispute about whether Roberts has renounced his UK citizenship.
David Goddard of the New Zealand bar, in relation to Ludlam, who was born in New Zealand. Goddard provided the opinion on Joyce.
A suitable expert in Canadian law who could advise on Waters, who was born in Canada.
The government says to help expedite the hearing, it would be willing to accept a court order to pay other parties’ costs.
The government has said previously the individual MPs would be responsible for their own legal representation.
On the government’s suggested timetable, the parties would provide detailed information about their circumstances by September 1.
This would include dates and places of birth of themselves, their parents, and – if relevant – their grandparents. Also, they should provide relevant immigration details for themselves and their family, and details of acquisition of Australian citizenship and renunciation of any foreign citizenship.
They should give the date and circumstances of their becoming aware they were or may be a citizen of another country.
And, if applicable, they should provide “details of any formal interactions with the relevant foreign power” such as for passport purposes, voting in elections, offers of or receipt of consular or similar assistance, or any military service requested or undertaken.
The government says that to the extent possible the cases should be heard together. “In the event that factual issues arise that prevent one or more of the references from being ready to be heard with the others, that circumstance should not delay the expedited resolution of the other references.”
In a week belonging more appropriately to Shaun Micallef comedy than parliamentary reality, it’s arguable Pauline Hanson’s burqa stunt wasn’t the most extraordinary thing that happened in Canberra.
Hanson has extreme beliefs and therefore it mightn’t be so surprising – though it is appalling – that she’s willing to use the parliament as a stage for extremely bad behaviour.
In donning the burqa purchased on eBay and entering the Senate chamber, she was as attention-seeking as the streaker who races naked across the football ground, though her motive was darker. Let’s call out her action, but not play into her cynical pursuit of mega publicity.
Entirely beyond imagination was the week being bookended by the Nationals leader, Barnaby Joyce, and his deputy, senator Fiona Nash, standing up in their respective houses to announce they were dual citizens (he a Kiwi, she a Brit).
Joyce and Nash are remaining in cabinet – unlike their Nationals colleague Matt Canavan – and in their leadership roles while the High Court determines the fate of all three, among the batch of cases involving dual citizenship. At issue is their eligibility under the Constitution’s Section 44, which bans dual nationals standing for parliament.
Australian Conservatives’ senator Cory Bernardi, formerly a Liberal, suggested on Thursday that parliament should be prorogued – that is, suspended – until citizenship questions and any subsequent byelections are sorted.
But suspending parliament would disrupt the normal course of government business, delaying legislation and, crucially in political terms, signalling panic.
Joyce continues to participate in parliamentary votes, so the government retains its one-seat majority in the House of Representatives. By its own lights, what credible story could it advance to put parliament on hold? It would look the ultimate in desperation.
There is no doubt the Joyce affair presented the government with a crisis. It then became a matter of management and this was seriously bungled.
Once it took the decision to keep Joyce in cabinet and in the deputy prime ministership, the government was always destined to be vulnerable to a ferocious Labor attack.
But its shock and awe response, with the absurd notion of a “treacherous” Bill Shorten and a Labor conspiracy across the Tasman with New Zealand Labour, was deluded from the start.
First, it was a try-on. Both Labor here and Labour in NZ were somewhat apologetic for their roles in the affair, understandable at least for NZ Labour which is facing an election. But what exactly was the wrongdoing by Labor here? Is there anything inherently “treacherous” about a Labor staffer using contacts to check in NZ who is eligible to be a citizen of that country?
Second the tactic, played in stereo, opened the government to ridicule. In particular, her exaggerated performance raised questions about the judgement of the usually astute Foreign Minister Julie Bishop, just days after a laudatory article had asked why she wasn’t mentioned more often as a possible future leader.
Although the circumstances are different, the hyperbolic accusation of “treachery” carries a remote echo from Turnbull’s book The Spy Catcher Trial, about the British government’s attempt to stop the Australian publication of a book by a former UK intelligence officer.
Turnbull, whose successful appearance in the high profile case gave an early boost to his reputation, wrote that then UK opposition leader Neil Kinnock – whom he pressed to “humiliate” the UK attorney-general in the British parliament – “was vigorously attacked in the House of Commons for ‘treacherous’ conduct”, in discussing the case with him.
If Turnbull were prone to bad dreams, his nightmares for the next few months would go something like this.
The government would lose the High Court case challenging the postal ballot on same-sex marriage, or win it and the ballot would return a “no” result.
It would lose Joyce’s citizenship case – and Nash and Canavan would be knocked out as well.
It would then lose the byelection in Joyce’s New England seat, with goodness knows what consequences in the resulting hung parliament.
Oh, and there would be a bruising battle within the government over energy policy, resulting in a much-criticised, wishy-washy outcome that gave no certainty for future investment.
But Turnbull is an optimist, or so he always tells us, and he’ll be looking at how things could all work out for the best in the best of worlds.
He’s predicted in the most unequivocal terms that Joyce will be vindicated in the High Court.
If things went well, the postal vote would sail through the legal challenge, and return a yes vote by a convincing margin with a substantial turnout, making the ballot beyond reasonable reproach, whatever the gripes of the losers. That would lead to parliament changing the law to deliver same-sex marriage by Christmas.
Energy policy would be hard fought within the government’s ranks, but the resulting compromise would be one that was seen as credible and welcomed by business.
The optimistic scenario – we might as well include in it at least one 50-50 Newspoll – would leave the government with a hope of regrouping, after an end-of-year ministerial reshuffle.
Which scenario, or what mixture of them, will come to pass is unforeseeable. But given how life goes for this government, some might regard the prospects for anything like the optimistic one as being in near-miracle territory.
Meanwhile, things are presently so grim they recall vividly some of the blackest times of the Gillard government.
Monday’s Joyce bombshell drove the same-sex marriage battle somewhat into the background, while both sides gear up for intense campaigns and questions remain about the postal ballot.
One of these is, I think, particularly interesting – that is, the argument that the result won’t be a true one because young people especially will be under-represented. The young are, collectively, more in favour of same-sex marriage than older people but less likely to be on the roll, to have a fixed address, or to be familiar with the post.
While this is a problem, I will be a bit contrarian. I think this both demeans the young and lets them off too lightly. They are supposed to enrol for elections anyway; if they have a view on the marriage issue there is both the incentive and opportunity to do so for this ballot.
A week is left – the rolls close August 24. The mobility challenge applies for general elections – it’s a hassle, but not insurmountable.
As for not using the post – well, that is like saying older people weren’t brought up with computers. Sorry, but one has to move with the times – even if, in this case, it’s moving backwards.
Young people are highly savvy with technology – I just don’t accept they can’t come to grips with posting a letter. If in doubt, they can always ask their grandmothers.
The nation is considering an important social issue – young Australians should get on the roll and vote.
Labor has taken another step to put tax and fairness at the centre of its policy agenda by proposing a crackdown on discretionary trusts, which it claims would raise A$4.1 billion over the forward estimates and $17.2 billion over a decade.
A Labor government would apply a minimum 30% rate of tax on discretionary tax distributions to beneficiaries over 18 years old. According to the Parliamentary Budget Office, the change will affect 318,000 discretionary trusts.
The policy would not apply to farm, charitable and philanthropic trusts. Also unaffected would be non-discretionary special disability trusts, deceased estates trusts, fixed trusts, cash management unit trusts, fixed unit trusts, and listed and unlisted public unit trusts.
Announcing the crackdown, Opposition Leader Bill Shorten said it was about delivering a level playing field in tax, “so high-income earners can’t opt out of paying income tax”.
“Tradies and retail workers and mechanics and cleaners don’t get to choose how much tax they pay – and neither should anyone else,” he said.
With the government claiming the change would hit small business, Labor insists “small business will continue to enjoy asset protections”.
The trusts policy comes on top of Labor’s commitment to tighten negative gearing and capital gains tax concessions and to reimpose the deficit levy on high-income earners, among other measures.
The opposition has yet to announce what it will do about the already-legislated tax relief – being phased in – for businesses with turnovers of up to $50 million. It is expected a Labor government would want to retain that only for smaller businesses.
The ALP policy document points out that wealthy people are much more likely to have a trust than those with lesser incomes. The average amount in private trusts by the wealthiest 20% of households is more than $123,000, compared with $4,000 for the next quintile.
Discretionary trusts are used by individuals and businesses to reduce their tax by shifting income to those in a lower tax bracket. “This practice of ‘income splitting’ through discretionary trusts is used frequently by wealthy Australians to minimise their tax,” the policy says.
“Income splitting allows high-income Australians to avoid paying the marginal tax rate that should apply to their income level – something ordinary PAYG taxpayers can’t do,” it says.
The policy gives the example of a surgeon, “Sam”, with a non-working wife “Melissa”, and two non-working adult children. The surgeon earns $500,000 from his work income, and pays PAYG tax at the top marginal rate.
In the example, the couple has a discretionary trust which produces $54,000 from their investments. They attribute $18,000 each to the wife and children, who all pay no tax because their incomes are under the tax-free threshold. “This represents a tax saving of $14,460 had the investment income been attributed to just Sam and Melissa in equal proportions, and a tax saving of $25,380 had the investment income instead been part of Sam’s normal PAYG salary.”
The number of discretionary trusts has nearly doubled since the late 1990s to more than 642,000. The increase in non-discretionary trusts – without the same tax minimisation opportunities – has been much lower. In 2014-15, more than $590 billion of assets were in discretionary trusts.
13% of individuals in the lowest-income tax bracket receive distribution from a discretionary trust. This is much greater than for those on higher incomes.
“This indicates that a significant amount of income is being shifted from the wealthiest individuals to those earning little or no other incomes (for example, non-working members of the family such as spouses and young adults in full-time study) to reduce the amount of tax paid,” the policy says.
Labor says the proposed 30% rate “strikes the right balance between ensuring a fair amount of tax is paid on all trust distributions, while also aligning it with the rate for passive investment companies which also face a 30% rate of tax”.
Labor stresses the reforms “will not affect 98% of all individual taxpayers in Australia, with virtually all the revenue raised from people receiving trust distributions who have little or no other work income”.
Asked why farmers were being exempted, Shadow Treasurer Chris Bowen said they had “issues when it comes to lumpy income and various issues relating to agriculture”.
Michael Sukkar, the assistant minister to the treasurer, called for Shorten to release the full Parliamentary Budget Office costing, including the assumptions Labor had used to come up with the revenue being claimed.
“Australians know that Bill Shorten cannot be trusted. This also goes for his latest $17 billion tax-grab that will once again hit small business and their families,” Sukkar said.
The fracas between the United Nations high commissioner for refugees (UNHCR) and the government over whether Australia agreed to settle a handful of the Manus Island/Nauru boat people with family here goes to questions of fact and humanity.
UNHCR claims it consented to facilitate the Australia-US resettlement deal, reached late last year, “on the clear understanding that vulnerable refugees with close family ties in Australia would ultimately be allowed to settle there”.
The government says its position has always been – as it has consistently said publicly – that none of those on Manus Island and Nauru would ever be allowed to come here.
It should be possible to get to the bottom of what was said in the multiple meetings the UNHCR had with the government. Presumably each side, and certainly the Australian bureaucrats, would have taken notes. These should be produced. Or perhaps information will be dragged out eventually in that very useful inquisitorial forum, Senate estimates.
Asked whether Immigration Minister Peter Dutton had given an assurance, Volker Turk, UNHCR’s assistant high commissioner for protection, told the ABC on Monday: “He didn’t give us assurances because we didn’t present cases yet. But he did agree that we would be able to present such cases.”
One can imagine how, anxious to get UNHCR involvement, Dutton and officials might have let the impression be left that cases would be considered – when they had no intention of looking favourably at any of them.
Maybe this is too Machiavellian – but the record should clarify. It is important for the credibility of both the UNHCR, which made the claim in a very tough statement, and the government that what happened be made clear.
Then there is the substantive question. We are talking about very few people – some 36 identified so far with a humanitarian claim and links to Australia, according to the UNHCR.
Whether the UNHCR or the government is right about the tenor of their conversations, surely in the cases of these people, it is not asking too much to expect Australia to take them in, regardless of the policy.
Dutton and colleagues default to the standard line, conjuring up the prospects of a fresh armada if any exceptions are ever made.
When the US deal was announced there was much tough talk from the government about strengthening the iron cordon of vessels patrolling around Australia in case there was a try-on from the people smugglers.
Does anyone seriously think that cordon isn’t up to the task of discouraging any fresh attempt if we let in three-dozen needy people with relatives here?
Remember that John Howard’s Pacific solution, which stopped the boats, saw some 705 of the 1,637 detained in Manus Island and Nauru between 2001 and 2008 resettled in Australia.
It’s hard to avoid the conclusion that the government exaggerates the threat for political purposes.
In case this be seen as just being “soft” on border protection, let me say that I believe the policy of turning back boats has been justified. Offshore processing had its place in that policy, but it is a step far too far to say now that we couldn’t keep the border secure if a few special cases were allowed to come to Australia.
One wonders if Dutton, Malcolm Turnbull or other ministers are ever troubled in their consciences, as they enjoy their own families, about what they are doing to the lives of children on Nauru or young men on Manus Island.
It’s as if the government buys its own propaganda, which subtly or not-so-subtly demonises these people – a majority of whom are found to be refugees – essentially suggesting they are criminals, as in Foreign Minister Julie Bishop’s comments on Tuesday.
“If people seek to arrive illegally, if they pay criminal smuggling networks, they will not be resettled in Australia,” she said. Bishop, of all people, knows that the story of seeking asylum is more complicated and involves the question of rights, with “unauthorised” arrivals being the appropriate term.
The row with the UNHCR sits uncomfortably with Australia’s campaign to win membership of the UN Human Rights Council, for which the vote is in October. The council’s remit is “the promotion and protection of all human rights around the globe”. But Bishop, who has been advocating for Australia’s candidature as she travels the world, on Tuesday was confident of success.
Leaving aside the contretemps with the UNHCR, some eight months after the announcement of the US deal none of the people from Manus Island or Nauru has moved to America.
We know that Donald Trump hates the Obama-era deal – under which the Americans agreed to take up to 1,250 refugees – though he has said he will honour it.
We know that the Americans are doing their own “extreme vetting” of the refugees.
We know that the US has already filled its refugee quota for the year ending September, so these people are pushed into the following quota, which starts October.
What we don’t know is how hard the Turnbull government is working to persuade the US administration to meet the agreement as soon as possible.
Turnbull makes much of he and Trump both being businessmen. Well, this can be thought of as a contract, and it is time the contract’s terms were met.
We have a special relationship with the US and that should be called upon. The people should be gone by Christmas, at the latest.
The United Nations high commissioner for refugees (UNHCR), Filippo Grandi, has accused Australia of breaking its word by refusing to allow refugees on Manus Island and Nauru with family in Australia to settle here – a claim denied by Immigration Minister Peter Dutton.
In a strongly worded statement on Monday, Grandi said that last November the UNHCR “exceptionally” had agreed to help with the relocation of refugees to the US, when the Turnbull government struck a deal with the outgoing Obama administration.
“We agreed to do so on the clear understanding that vulnerable refugees with close family ties in Australia would ultimately be allowed to settle there,” Grandi said.
But “UNHCR has recently been informed by Australia that it refuses to accept even these refugees, and that they, along with the others on Nauru and Papua New Guinea, have been informed that their only option is to remain where they are or to be transferred to Cambodia or the United States,” Grandi said.
This meant some people with serious medical conditions or who had had traumatic experiences such as sexual violence could not receive the support of close family members who are living in Australia, he said.
“To avoid prolonging their ordeal, UNHCR has no other choice but to endorse the relocation of all refugees on Papua New Guinea and Nauru to the United States, even those with close family members in Australia.”
A spokesperson for Dutton responded to Grandi’s statement by saying the government’s position “has been clear and consistent” – people transferred to regional processing centres “will never settle in Australia”.
On the ABC’s 7.30, Volker Turk, the UNHCR’s assistant high commissioner for protection, elaborated on the claim.
He said the UNHCR went into its facilitation role “after long discussions with Australian government officials”.
“We had a lot of meetings with the government, including myself with the minister of immigration in November,” he said.
“There was no doubt in our mind – and this is what we put forward to the minister at the time – that we would present to him cases that are compelling humanitarian, with close family links to Australia. We were hoping that, indeed, Australia would consider them favourably within the discretion that the minister has at his disposal.”
Pressed on whether Dutton gave any assurance that he would actually allow those people to resettle in Australia, Turk said: “He didn’t give us assurances because we didn’t present cases yet. But he did agree that we would be able to present such cases.”
“Of course we went into this agreement on the understanding that, indeed, Australia would be part of the solution for a handful of compelling humanitarian cases with strong family links in Australia.”
Only 36 people had so far been identified with such links, he said.
On the basis of the understanding that it had the UNHCR “presented these compelling cases”, Turk said.
Grandi said these vulnerable people who had already had four years in “punishing conditions” should be reunited with their families in Australia. This would be the “humane and reasonable” course.
“The Australian government’s decision to deny them this possibility is contrary to the fundamental principles of family unity and refugee protection, and to common decency,” he said.
Grandi said Australia’s offshore processing policy “has caused extensive, avoidable suffering for far too long”.
“Four years on, more than 2,000 people are still languishing in unacceptable circumstances. Families have been separated and many have suffered physical and psychological harm,” he said.
The UNHCR has referred more than 1,000 refugees to the US over the past eight months. A further 500 people are waiting for the outcome of their refugee claims, being processed by authorities in PNG and Nauru. The American deal provided for the US to take up to 1,250.
US President Donald Trump made it clear in his much-publicised phone conversation with Malcolm Turnbull that he hated the deal, though he has said he will honour it.
But so far no-one has been settled. The US, which is doing its own assessments, has been slow, and now America has filled its much-reduced refugee program for the year ending September. This has stalled any prospect of departures until the new year starts in October.
Meanwhile the Manus centre is due to close on October 31, and authorities there are trying to push people out of it.
Asked on Sky on Sunday whether there was any circumstance under which the government would allow some people to come to Australia, Dutton said: “People will not be coming to Australia … the government has said it consistently”.
He said this consistent position had been part of the reason for the success in stopping the boats. “We’ve taken the people-smuggling model away from the people smugglers. People don’t believe that they can get to Australia by paying their money and if that fails then we will see a recommencement of boats.”
Pointing to the earlier 1,200 drownings at sea, Dutton said that under the Coalition’s “Operation Sovereign Borders we’ve not seen a single death at sea”.
Grandi said the UNHCR fully endorsed the need to save lives and prevent exploitation by people smugglers.
“But the practice of offshore processing has had a hugely detrimental impact. There is a fundamental contradiction in saving people at sea, only to mistreat and neglect them on land.”
He urged an immediate end to Australia’s offshore processing and for it to offer solutions to its victims “for whom it retains full responsibility”.
The proposed changes may help to clarify some of the confusion surrounding the role of state police and the ADF in responding to terror attacks. However, to prove effective in practice, the changes will depend heavily on the willingness of state police to accept military advice and assistance.
Changes to call-out powers
The major change proposed is to relax the call-out powers for ADF assistance during a terrorist attack. Prime Minister Malcolm Turnbull described the existing law as “cumbersome” – and it certainly sets a high bar for requesting military involvement.
Currently, the Commonwealth Defence Act provides that the ADF can be called out to respond to violence within state boundaries, but only where:
a state government requests such assistance; and
the state “is not, or is unlikely to be, able to protect itself”.
This is consistent with the Constitution, which allows the Commonwealth to protect states against internal violence “on the application of the executive government of the state”.
A formal request for ADF assistance was not made during the Sydney siege. Despite the many recognised problems with its response, the NSW police force did not believe its capacity to respond to a single armed offender was inadequate.
Details of the proposed changes have not yet been released. But it appears that state governments will be able to request “specialist” or “niche” assistance from the ADF. For example, they may request assistance with specific weaponry such as sniper rifles or other high-powered weapons.
This will provide more flexible arrangements for state governments to request ADF involvement. Rather than admitting that its overall capacity to respond to a terrorist incident is inadequate, a state government could request assistance on more specific grounds.
However, it appears the process will still require state governments to request assistance from the Commonwealth. Whether state police forces will concede that their ability to respond to terrorism is inadequate – even on more specific grounds – remains to be seen.
It also appears that requests for ADF involvement will depend on whether state police classify an incident as an act of terrorism. This in itself is open to interpretation, and may prove difficult to determine in practice.
Changes to military liaisons
Another proposed change is to embed military liaison officers within state counter-terrorism police units. This will help build a closer relationship between the ADF and state police forces – if they can work together well.
During the Sydney siege, ADF liaison officers attended the police forward command post. In his report, the NSW coroner noted that the role of these officers was poorly understood, and that NSW police could have drawn on their expertise to a greater extent.
Controversy remains over whether police failed to heed military advice that their bullets would fragment on hard-tiled surfaces.
Formalising military liaison positions will help clarify the ADF’s role in circumstances that fall short of a formal call-out. However, it seems the key problem to date has not been an absence of military advice, but a lack of willingness to accept it.
Changes to training
A third major change is for special forces soldiers to provide enhanced training to state counter-terrorism police. This is likely to be the most effective strategy for improving operational responses to terrorism.
The ADF has two tactical assault groups – East and West – based in Sydney and Perth respectively. Realistically, these specialist units could only respond to a terrorist attack in one of those cities, or in the event of an extended siege. Having specially trained state police is crucial if first responders are to deal adequately with the threat of terrorism.
Improved training procedures will enable state police to draw on the expertise of Australia’s special forces, while avoiding territorial issues as to who should have jurisdiction in the event of an attack. They also avoid difficult constitutional and democratic issues regarding the expanding role of the military in domestic crime control.
Labor is set to launch a High Court challenge over the eligibility of Assistant Health Minister David Gillespie to sit in federal parliament. The case has been brought by Peter Alley, the ALP candidate who ran against Gillespie in Lyne at the 2016 federal election.
The action is based on Gillespie, a Nationals MP, owning a small shopping centre in Port Macquarie that contains an Australian Post outlet. As Australia Post is a government-owned corporation, Labor claims this results in Gillespie having an indirect pecuniary interest contrary to Section 44(v) of the Constitution.
If the High Court agrees, Gillespie would be ineligible to sit as an MP.
What does the Constitution say?
Section 44 of the Constitution sets out several grounds of disqualification from holding parliamentary office.
Under Section 44(v), someone “shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives” if they have:
… any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than 25 persons.
Before this year, the High Court had only considered this section on one occasion, in 1975.
In that case, Chief Justice Garfield Barwick took an extremely narrow interpretation of the provision, based on a finding that its historic purpose was to protect parliament’s freedom and independence from the influence of the Crown.
An “indirect pecuniary influence” would only be disqualifying where it involved a legal or equitable interest in a contract with ongoing obligations, and where the possibility of financial gain by the agreement’s existence or performance could conceivably allow the Crown to influence an MP in relation to parliamentary affairs.
The High Court revisited the meaning of “indirect pecuniary interest” in April this year. It unanimously held that former Family First Senator Bob Day had an “indirect pecuniary interest” at the time of the 2016 federal election, and was therefore ineligible to be a senator.
Day had already resigned from the Senate before this ruling. But the High Court’s decision was significant for two key reasons.
The first was its immediate importance in deciding how a replacement senator was to be selected.
The second, which will now be critical when considering Gillespie’s future, was its reconsideration of what constitutes an “indirect pecuniary interest” under Section 44(v).
The Day case concerned a lease agreement between the Commonwealth and Fullarton Investments Pty Ltd for premises Day used as his electorate office. There were a variety of ways in which Day was connected to both the company and property. However, a fact the court found to be particularly significant was that in February 2016, Fullarton Investments directed that rental payments be made into a Day-owned bank account.
The High Court declined to follow the 1975 precedent and adopted a broader interpretation of Section 44(v). Importantly, it found the section had a wider purpose than solely protecting parliament’s independence from executive influence. It was also intended as an anti-corruption provision, designed to protect against potential conflicts of interest by ensuring the public duties of MPs are kept separate from their personal interests.
Under this broader view, an individual would be disqualified where there was an expectation of financial gain if the agreement in question was performed. The court would look at the agreement’s practical effect when making this assessment.
… if the agreement in question is one ordinarily made between government and a citizen.
The case against Gillespie
So, is Gillespie ineligible based upon this new, broader interpretation of Section 44(v)?
There is no question of a direct financial interest in this case. Rather, the information currently available suggest that a company owned by Gillespie and his wife leases space in a shopping centre it owns to an Australia Post licensee.
The possible financial interest in this case certainly seems to be more remote than in Day’s case. However, there is still sufficient uncertainty surrounding the outer limits of section 44(v) for this case to be of real concern to the Turnbull government.
What happens now?
If the High Court finds Gillespie is incapable of sitting as an MP under Section 44(v) there would necessarily be a by-election in Lyne.
Given the Turnbull government only has a one-seat majority, the immediate stakes are as high as they could possibly be.
There is also a broader issue worth considering. Gillespie is the third member of the 45th parliament – after Day and Rod Culleton – to have their constitutional eligibility challenged before the courts. In Day’s case, High Court Justice Stephen Gageler emphasised the importance of certainty in this area, so candidates and MPs know where they stand.
Given recent controversies, it would seem an opportune time to review Section 44 to make sure the disqualification provisions in our Constitution are clear, fair, and reflect voters’ real concerns.
Malcolm Turnbull is on the brink of a major policy victory after the government mustered ten of the 12 non-Green crossbenchers behind its Gonski 2.0 policy.
The outcome of a week of intense negotiation by Education Minister Simon Birmingham means, barring mishap, the government is set to end this parliamentary sitting on a strong note, at least in policy terms. The Coalition remains in a bad place in the polls.
The new model for schools funding will be much closer to the original needs-based one recommended by the Gonski review, the implementation of which was compromised by a plethora of special deals.
In electoral terms, Turnbull hopes the schools policy will at least partly offset Labor’s usual strong advantage in education. But the fight over schools will still be on, because Labor will be promising a big extra boost to funding.
To get its legislation through, the government has shortened the time frame for delivering funding targets from ten to six years; boosted by $A4.9 billion to $23.5 billion the amount of additional money that will be spent over a decade (including $1.4 billion over the next four years); agreed to establish an independent body to oversee the funding; and endorsed a tight arrangement to prevent states lowering their share of school funding.
In a gesture to a deeply agitated Catholic sector, the government will provide transitional money for it next year, while a review is undertaken of the basis for calculating how much parents should be expected to contribute. Some money will also be available for schools that are part of systems in the independent sector.
This is being couched as transition money so that all systems will come under the new model from the 2018 start. The transition money will amount to $46 million, $38 million for the Catholics.
But the Catholics, who benefited from the previous special arrangements, remain angry. The future political implications of this are yet to be seen.
On Wednesday night National Catholic Education Commission executive director Christian Zahra said that commission representatives had just met with Birmingham who “set out the minor changes” he proposed in response to the Catholics’ “very serious concerns”. But the commission’s position hadn’t changed: the bill “still poses an unacceptable risk to the 1,737 Catholic schools across the country” and should be defeated.
The outcome has left the Greens caught badly short, exposed as under the thumb of the powerful teachers union, the Australian Education Union (AEU).
The government negotiated simultaneously with the Greens and the other crossbenchers. But the Greens were split, unable to finalise a deal even though they did most of the heavy lifting in extracting some major changes and additions to the government’s original $18.6 billion plan.
The result is they’re in the worst of positions. They are unable to claim victory in delivering the more needs-based system. But they have raised the ire of some of their supporters for attempting to reach agreement with the government.
As soon as it knew it had the numbers with the other crossbenchers, the government – unsurprisingly – brought on the second reading vote on the legislation in the Senate.
Greens leader Richard Di Natale said he was disappointed the government had stitched up the deal with the other crossbenchers. The Greens had still been negotiating when the second reading vote was called. “We thought those talks were progressing really well when out of the blue, the bells rang,” he told reporters.
He said the Greens were proud that what they did through their negotiations “was to raise the bar”. But they could not support the “special deal” for the Catholic sector, and had wanted more money for disabled children.
The government is relying on getting the votes of Pauline Hanson’s One Nation, the Nick Xenophon Team, Jacqui Lambie, Derryn Hinch, and Lucy Gichuhi.
Labor has trenchantly opposed the government’s package, saying the $18.6 billion is $22 billion short of what schools would have received under the ALP’s policy.
The opposition’s schools spokeswoman, Tanya Plibersek, says a Labor government would keep the parts of the package that “are practical, like an independent schooling resource body”. It would also retain the cuts to elite private schools.
But Labor has not spelled out how a Shorten government would alter the new model it would inherit and fund more generously.
It says Gonski 2.0 is flawed because it entrenches a skew in federal funding towards non-government schools (traditionally funded by the federal government, which is only the minor funder, compared to the states, of government schools). But that doesn’t deal with the issue of how a Labor government would handle the Catholics.
Labor has taken advantage of the Catholic rebellion. The Catholic sector, having lost the old special deals, would be anxious to extract some new ones from an ALP government that had extra dollars to put around.
So, will Labor give the Catholics any undertakings that in power it would rectify the wrongs it alleges the government will do to the Catholic system? If it won’t, what will be the response of the Catholics?
If, after the dust settles from the Turnbull government making the tough changes, Labor broadly accepts the new model as a basis for its own planned funding, it will have a sound policy position but questions to answer about disingenuous claims we have heard from it in this debate.
The government has finally found an issue it can cast in terms of “national security” on which it can get a fight with Labor.
Bill Shorten usually sticks leech-like to bipartisanship on anything with even a whiff of “security”. But now the opposition has said “enough” on the proposals to toughen the criteria for people seeking citizenship.
In political terms, the question is whether the government can turn this into an effective wedge against Shorten, claiming he is “soft” on citizenship. Labor’s challenge is to keep the debate as one about what are reasonable conditions to place on aspiring Australians.
The government believes it is in tune with the mainstream; its eye to the politics was obvious when Malcolm Turnbull went out of his way to make a statement on the matter at Tuesday’s news conference on his latest energy security initiatives.
“The Labor Party does not value Australian citizenship enough to say, as we do, that it must be more than simply the outcome of an administrative tick-and-flick form-filling process,” Turnbull said. Immigration Minister Peter Dutton invokes national security and claimed Shorten has been “mugged by the left of his party”.
The proposed legislation requires potential citizens to have a higher English proficiency than at present. Additionally, the applicant will need to have lived in Australia as a permanent resident for at least four years (just one at present).
There will be a defined process to assess a person’s commitment to Australian values, helped by the longer residency requirement; people will have to show what they’ve done to integrate into the community.
The immigration minister will acquire the power to override decisions of the Administrative Appeals Tribunal on citizenship, subject to a court appeal.
Labor is opposing the bill as a whole; it wants it referred to a Senate inquiry, and says that then, if it considers there are parts worth supporting, it would ask the government to bring them back in separate legislation.
Aware Labor is treading on potentially dangerous ground, citizenship spokesman Tony Burke is trying to fireproof it. “Don’t lie and pretend something is national security when it is not,” he said.
The opposition is challenging in particular the longer qualifying period and the harder English test.
The government has a case with the former; comparable countries make residents wait between five and eight years before applying for citizenship. It is on more dubious ground on English testing, where the standard is to be raised to “competent”.
This is a level where the person has “an effective command of the language despite some inaccuracies, inappropriate usage and misunderstandings. They can use and understand fairly complex language, particularly in familiar situations.”
Burke pointed out that the questions now asked of those seeking citizenship are in a test “which is written in English. If you can’t speak English, you can’t pass the test.”
He warned the new requirement would “guarantee there will be a group of permanent residents who live here their entire lives and are never invited to take allegiance to Australia and are never able to be told by the Australian government: ‘you belong’. That is a fundamental change in our country.”
While it is desirable, not least for their own benefit, to have aspiring citizens acquire good English, people can also be excellent citizens even though their English language will always be poor. Many of us know people like that.
One motive for upping the English requirement might be fears about inward-looking communities. But insisting on the proposed level of English proficiency makes for a very un-level playing field, discriminating against those from certain countries.
Immigrants should be encouraged to become citizens – surely that is likely to be a positive for national security because it promotes a more unified nation. A “two-class” situation in the migrant/refugee population, where some can’t make the cut because of the language issue, is not what we want.
Dutton dismisses Labor’s concerns about the longer qualifying period and the harder language test.
Possibly wearing a focus group on his sleeve, he says: “The Australian public wants to see an increase in the English language requirement, they want to see people meet Australian laws and Australian values”.
There have been mild concerns in Coalition ranks about people who are about to qualify for citizenship under current rules but will face waiting longer. Dutton has told colleagues to bring him any particular cases.
If the government is playing politics with its citizenship move, Labor will have its eye on what might be opportunities on the ground.
These changes won’t be popular with some in ethnic communities, where Labor seeks votes.
On the other hand, some of those who’ve entered the citizenship tent can be less than sympathetic to aspirants.
The government may get the legislation through regardless of Labor’s stand, via the crossbench. If so, the opposition would have to decide whether it would undertake to alter the law if it won the election, or just move right on.
Let’s start at the beginning on the vexed issue of foreign donations for political parties and candidates in an environment in which globalisation is adding to challenges in combating foreign interference in electoral processes.
Back in 1918, when the Commonwealth Electoral Act was drafted, no distinction was made between donors from Australia or overseas, or (effectively) between donors who were Australian citizens, non-citizens, or organisations.
In the last year of the 1914-18 war not much thought, if any, was given to the possibility that foreign interests would interfere with the Australian electoral process, or would have an interest in doing so.
But now, in an environment in which commercial and political interests leapfrog national boundaries in ways that must have seemed a remote possibility when the 1918 Commonwealth Electoral Act was drafted, it is time to subject the act to a comprehensive revision.
The aim of this exercise should be to exclude foreign donations. Those bans should extend to organisations engaged in the political process as lobby groups for one side or the other.
It would make little sense for bans to be applied to political parties themselves without also extending such bans to unions and business lobbyists.
As much as anything, such a provision would act as a deterrent to those who might seek to utilise foreign funds improperly.
Government ministers tell you it will be difficult to frame legislation that would stop all foreign funding.
What about grey areas, they ask, such as contributions by companies whose main business is in Australia, but whose headquarters is located elsewhere?
The London-headquartered Rio Tinto is one such example.
These are difficult issues and need to be worked through. There is no simple remedy.
Of course, one option would be to make political campaigns fully publicly-funded, thus obviating the need for private fundraising. But that arrangement potentially discriminates against new entrants who may not qualify for such public funding.
The Australian model in which funding is made available on the basis of past performance has merit. But its weakness is that it advantages the major parties disproportionately.
Then there is the whole murky area of funding for organisations like the conservative Institute of Public Affairs, or groups on the left, like GetUp, which supports progressive causes.
Under present circumstances, organisations like the IPA are not obliged to disclose their sources of funding. Since they are involved in the political process, these lobby groups should be required to open their books.
In the United States, funding for similar organisations is transparent, for the very good reason that just as sunlight is the best disinfectant so is transparency in ascertaining what might motivate groups to adopt certain positions.
The IPA, for example, opposed plain packaging for tobacco products on what it insisted were libertarian grounds. It would have been useful, however, to be apprised of whether the tobacco industry contributes funds to that organisation.
Lobby groups should be obliged to place sources of funding on the public register, especially since many of these organisations derive tax benefits from their status as not-for-profit organisations.
The whole question of “money talks” politics has come into focus in the past week or so with revelations in a Fairfax Media/ABC investigation of money being splashed around political parties by Chinese-born billionaires, one of whom is not an Australian citizen.
Clearly, the aim of these contributions has been to influence Australian politicians in a way that would make them more sympathetic to China’s aspirations.
Indeed, in one case, funding that had been promised to Labor was withheld after one of its spokesmen advanced a point of view contrary to China’s interests.
This was a clear example of money being used – or the threat of funds being withheld – for political purposes. It should be regarded as distasteful, and, potentially intimidatory.
If there is a rule of thumb in politics, it is that money does not bring purity, rather the reverse.
Special Minister of State Scott Ryan, who has responsibility for an overhaul of the Commonwealth Electoral Act as it relates to political donations, acknowledges that grey areas exist that will be difficult to legislate.
The IDEA has a formula that would be helpful in establishing exactly what constitutes a “foreign interest”.
It defines such interests as entities that:
contribute directly or indirectly [and who are] governments, corporations, organisations or individuals who are not citizens; that do not reside in the country or have a large share of foreign ownership.
In the case of the latter provision, framing regulations to stop foreign donations would present challenges. Rio Tinto is just one example of companies with large stakes in Australia, but domiciled overseas.
Perhaps the most compelling argument for an Australian ban on political donations is that, apart from New Zealand, Australia is the only English-speaking democracy to permit such donations.
In New Zealand, overseas donations are capped at $NZ1,500.
In Australia no such cap applies.
However, donations to parties and candidates above $13,200 require the name and address of donor to be supplied. This information must be made available at the end of each financial year.
One reform Ryan might consider is to oblige disclosure more quickly. In last year’s federal election, Prime Minister Malcolm Turnbull made a very significant personal financial contribution to the Liberal Party campaign. But under law, this donation did not need to be disclosed in a timely manner.
In 2010, the Labor government introduced the Commonwealth Electoral Amendment (Political Donations and Other Measures Bill) that would have banned donations of “foreign property”.
The bill passed the House of Representatives, but was not proceeded with in the Senate and lapsed at the end of the 43rd parliament.
Labor and the Coalition toyed with the introduction of a donation and disclosure reform bill in 2013, but nothing came of these efforts.
In this latest 45th parliament the Greens have restored their own Commonwealth Electoral Amendment Bill that bans donations of foreign property. This version lapsed at the dissolution of the 44th Parliament.
Now is the time for this whole issue to be re-visited.
Ryan, in conjunction with Attorney-General George Brandis, needs to come up with a bill that seeks to forestall the possibility of candidates and parties being bought and sold in a monied environment that is infinitely more susceptible to influence peddling by foreign interests than it was a century ago.