Thursday, 13 September 2018

6PR – Mornings with Gareth Parker



Subjects:  Peter Dutton’s eligibility, ballot for national apology

GARETH PARKER: So there are reports that Malcolm Turnbull has been texting and calling his former colleagues in the Liberal Party from his post-prime ministerial vacation in New York City, urging them to take up the issue of Peter Dutton and his eligibility to sit in the Parliament. And in fact, he didn't leave it at that, he sort of jumped on Twitter as well and said: the point I've been making to Scott Morrison and others is that given the uncertainty around Peter Dutton's eligibility acknowledged by the Solicitor-General, he should be referred to the High Court as Barnaby Joyce was, to clarify the matter. This, of course, goes to Peter Dutton's family's interests in childcare centres which receive Commonwealth funding, and the question is: does that make him ineligible under the provisions in the Constitution that say that you can't receive a benefit from the Commonwealth and also sit in the Parliament? So, that's sort of the issue.
Now, my guest on the line has no small interest in this. He's the Attorney-General, Christian Porter, good morning.

ATTORNEY-GENERAL: Good morning, Gareth. How are you?

GARETH PARKER: Why not just refer Peter Dutton?

ATTORNEY-GENERAL: Well, my concern isn't with sort of personal opinions that people might be putting on the issue. My concern is with the legal opinion on the status. And obviously, during that very tumultuous week, we went to the Solicitor-General, we sought, we received advice. The advice was published. This is not an area where there's been a great amount of case law; I think there's only ever been really two substantive High Court decisions on the area. And the Solicitor-General said very clearly that the better view is that Mr Dutton is not incapable of sitting as a Member.

GARETH PARKER: And what a ringing endorsement that phrase is, Christian. Not incapable. It's a sort of a double-negative and it says, it sort of goes on to say, not in these words, but you know, no one really knows unless it's tested by the High Court.

ATTORNEY-GENERAL: Well, it's quite a usual phrase. I mean, lawyers are sometimes inelegant with the double negatives but that is a very usual phrase. If what you're suggesting and what some others might be suggesting is that there should be a referral every time there's an absence of absolute certainty on a matter like this, frankly, the referrals would never stop because if you want certainty then mathematics is an excellent profession for you but constitutional law is probably not. Now…

GARETH PARKER: …But this isn't-

ATTORNEY-GENERAL: …people will have a whole range of motivations and views and there's a lot of politics in this but the first legal officer of the Commonwealth, my concern is with the sufficiency of the argument for referral and here, the view that I formed, and I must say, many others have formed, is that it's not sufficient. And of course, this isn't the only advice out there. There are now four advices, one that Labor obtained, which they say is of critical importance now but they sat on for 126 days.


ATTORNEY-GENERAL: …so one can ask, how critically important they really thought it was if they're willing to sit on it for 126 days? There are two other advices that have been provided by senior counsel commissioned by Mr Dutton. They share essentially the conclusion that the Solicitor-General reached. And the view that I have is that the Solicitor-General's consideration of the matter is accurate. It's an area where there hasn't been a great deal of case law, but you have a conclusion here that the better, the best view here is that there's not a sufficient reason to refer him.

GARETH PARKER: All right. Well, you said that there is, this isn't just strictly about constitutional law. There's an element of politics in it as well. Maybe that's true. Here's Julie Bishop.

JULIE BISHOP: Clearly that's a matter for the Prime Minister or indeed the leader of the Opposition to determine. If there's a vote on the matter, well, I'll make my mind up at that time but of course, we want clarity around the standing of all the members of Parliament.
QUESTION:…voluntarily refer himself.
JULIE BISHOP: That's a matter for Peter Dutton. We all have personal responsibility to ensure that we are eligible to sit in the Parliament. And we've seen in recent times steps taken by members of Parliament to clarify their status but it's a matter for each politician, each member, senator to make that determination. Of course, others could well seek to refer it but that's a matter for them.

GARETH PARKER: Okay. She went on to say she'd make up her mind if there was any vote at the time. Christian, this is one of the problems with these leadership changes. It's the unintended consequences, the transaction costs, the things that people don't think about. So all of a sudden, you've got someone of Julie Bishop's stature liberated from the backbench to speak her mind.

ATTORNEY-GENERAL: Well, I'll leave the commentary, as they say, to the commentators, Gareth. I mean, we had these discussions several weeks ago. It was obviously not a week that any political party would wish upon themselves. But each Minister in a Cabinet's got a job to do. So my job is providing legal advice to the Government, not getting involved in the sort of personalities of it. Just giving legal advice. My job is to get along with important things like reforming the family courts, where thousands of people face delays and extra costs that we think we can shorten for them. So, you get along with the job of government.

GARETH PARKER: I do want to talk about something that is important and it is in your portfolio area. It's the issue of the national apology to victims of institutional child abuse. We understand that a date has now been confirmed or re-confirmed, I guess, and there's a bit more on that too.

ATTORNEY-GENERAL: That's right. And so there's, I think there's a ballot that will be conducted so that individual survivors will have the opportunity to go in, if you like, a ballot or a draw, so that they can come to Canberra for the day of the national apology for the survivors of institutional sexual abuse, which of course was the subject of the Royal Commission. So, I mean, every time, I do have an opportunity on radio or elsewhere just to let people know that there is a ballot going on and you can go onto our websites and get the detail of that ballot. The ballot closes on 25 September. There will be 400 allocations, so there's 800 all up and 400 of those will be subject to the ballot.


ATTORNEY-GENERAL: So it is an opportunity for people who had this dreadful experience to be a part of what we hope is going to be a process of healing and closure and an apology, obviously conducted by the Prime Minister himself.

GARETH PARKER: Any stories out of the Midwinter Ball last night?

ATTORNEY-GENERAL: None that I really care to share. Look, it's just a pleasant night. I had the great joy of having my wife accompany me this year. So look, it's a good old night. It's one of these things that the journalists put on and it's for charity, so we go and do our best and smile. Even if you've had a rough day, you do your best and smile.

GARETH PARKER: Thank you, Christian.

ATTORNEY-GENERAL: Okay. Cheers, Gareth.

GARETH PARKER: Attorney-General, Christian Porter.