Wednesday, 09 May 2018

Press Conference - Katy Gallagher High Court Decision


The Hon. Christian Porter MP

The Hon. Christopher Pyne MP
Minister for Defence Industry
Leader of the House


Subjects: Katy Gallagher High Court Decision

ATTORNEY-GENERAL: Good morning, everyone. We are evidently here to speak with respect to the very recent High Court decision. If I might start by saying that Bill Shorten said something very curious on Channel Nine yesterday. He said if the High Court today sets a new precedent, the Labor Party will deal with it. He then, when pressed, said: if the interpretation of the law changes, we will consider what we have got to do.

I want to make it absolutely clear from the outset that this decision is not a reinterpretation or a change of the law.  It is a crisp and crystal clear clarification of the law as it was stated in the Canavan decision in October of last year. And anyone, whether that be Bill Shorten, Mark Dreyfus or anyone else who says that this is a reinterpretation or a change, is talking utter rubbish.
And in fact, we all knew what the circumstance was in October of last year in the Canavan decision. It was contained in paragraph 71 and 72 of that judgement, and we have now gone through an arduous and agonising process over six months to confirm what we knew, and that is this: that, if a person is a dual citizen of another country after the date of close of nominations, then that person is ineligible to sit in the Commonwealth Parliament; and the only existing exception to that very clear line that the High Court drew in October of last year is if the foreign country makes it impossibly difficult to renounce.  And even if it is impossibly difficult to renounce, the person must have, in effect, done everything they could to demonstrate that impossibility.

So there is absolutely no change in the law here, and by extension, it means that there four other dual citizens - in fact, all dual citizens of Great Britain - who were dual citizens after the close of nominations, who are presently ineligible to sit in the Federal Parliament, and who should not be sitting in the Federal Parliament. And those four people must resign. They must resign today. Bill Shorten must require the resignation of those three Labor members today, and that must occur before close of business today.

If I might just make a few comments with respect to the intervening period between October and today. Mark Dreyfus on a number of occasions said words to this effect, and I'll quote him, that 'Miss Gallagher had taken the reasonable steps that the High Court has spoken of in repeated decisions.' That was wrong, he knew it to be wrong, he maintained that position over the intervening six months, and it was absolutely wrong. Bill Shorten said the difference between Miss Gallagher and Fiona Nash was 'as different as night and day.' He knew that was wrong and maintained that position for six months. Bill Shorten said the Labor Party had 'extremely stringent vetting processes.' That is absurdly wrong, and it was maintained during that intervening six months.

Mr Dreyfus said Labor care about the constitutional legitimacy of the Australian Parliament. That is the statement that we are now testing today as to whether that is correct or incorrect.  Because, if Labor do care about the constitutional legitimacy of the Australian Parliament, they must ask their three members; Keay, Lamb and Wilson, to resign today.

And anticipating any questions today about the fact that this decision just restates what we clearly knew and had available to us as the position at law in October of last year, I just draw your attention to paragraphs 26 and 27. For instance, at paragraph 27: for a foreign law to meet the description and re Canavan, it must present something of an insurmountable obstacle, such as a requirement with which compliance is not possible. It is quite clear that Great Britain does not provide an insurmountable obstacle for any person wishing to renounce their citizenship, and that all four members in question now were dual citizens of Britain after the date of nominations.

Paragraph 30; it is not sufficient that a person in her position has taken all reasonable steps required by the foreign law. The decision is clear, it doesn't change the law, it confirms the law as we have known it to be since October, and the four members unfortunately must resign today.

MINISTER PYNE: Thank you, Christian.

Well, last year, Bill Shorten faced a character test over the referral of members of the Labor Party under a cloud to the High Court, and he failed it. He failed it quite spectacularly, and he proved that he couldn't be trusted yet again.

We have a contrast between the way this Government operates and the way that the Bill Shorten-led Labor Party operates. When we understood that Members of our side of the House had a cloud over them, they were referred to the High Court, or they resigned. In fact, quite a number, Fiona Nash; Matt Canavan, who was cleared by the High Court; Barnaby Joyce, who wasn't and faced a by-election which he won; John Alexander, when he couldn't satisfy himself that he didn't have dual citizenship, he resigned, faced a by-election.

So on our side of the House, we did the right thing. When there was a problem, we responded to it methodically, sensibly, as a good government would, faced by-elections, and the people re-elected those two members. By contrast, on the Labor side, when Bill Shorten was faced with similar issues, he circled the wagons, he behaved like a trade union leader trying to avoid accountability and transparency, and today we've seen the outcome of that, where three of his Members have been ruled ineligible, in effect, by the decision, this unambiguous decision of the High Court, which confirms the other unambiguous decision in the Canavan case.

The idea that this leaves any room for manoeuvre on the Labor side is quite frankly laughable. Clearly, Justine Keay, Susan Lamb and Josh Wilson and Rebekha Sharkie were all citizens of another country or entitled to citizenship of another country when nominations closed. The High Court's made it very clear. You have to get your act together before nominations close in good time. That's how a layperson would see this.
Bill Shorten, on the other hand, has tried to obfuscate, has not been transparent. He, in fact, wrote back to the Prime Minister, when the Prime Minister generously said that, in referring Barnaby Joyce, there are Labor members you might like us to refer at the same time; he said '..the Labor Party has the strictest processes to ensure all candidates are compliant with the Constitution prior to their nomination for election.' That has been spectacularly proven to be false.

Today Bill Shorten has another character test. He is being asked again today to do the right thing, to have his members resign from Parliament and face three by-elections in those seats, along, of course, with Perth, because of Tim Hammond's resignation and Rebekha Sharkie has to make her own decision – she's not in the Labor caucus. So he has a character test that he has to meet. Is he a person who is appropriate to be Prime Minister of Australia, who thinks it significant whether his members have a constitutional eligibility to sit in the Parliament, or is he going to simply get away with trying to again obfuscate, put up hurdles, behave like a trade union leader, like a Labor bovver boy, trying to avoid the by-elections which the High Court have made very clear he has to face in those three by-elections in those three seats?

QUESTION: Mr Pyne, does your threat earlier in the year to refer the Labor MPs if Labor doesn't, does that still stand?

MINISTER PYNE: Well Phil, Bill Shorten has to answer this question today. This sits very starkly at Bill Shorten's door. This is Bill Shorten's problem.  He created this problem by not dealing with it when we gave him the chance to do so last year. Now, he faces another test today. He could require those members to resign, and there'll be by-elections. As Christian said, that should happen today. This is a matter for Bill Shorten. We're not going to get in the way of Bill Shorten doing the right thing.

Now, if he wants to be Prime Minister of Australia, he has to show some character, some ticker, rather than being worried about what the union bosses might say from issue to issue, and in this case what the caucus might say. He's created this problem for his caucus. He very proudly said that Labor had stringent processes in place. He avoided dealing with it. And now, of course, three of his members are not eligible to sit in the Parliament. So, this is a matter for Bill Shorten. He has to indicate that he has the character to be the Prime Minister by causing those members to resign.

QUESTION: You assert the law has not changed. That means that you as the chief legal officer in Australia have known for a good deal of time that these people are ineligible. Why did you not refer them, if it was anything other than politics? If you knew that they were ineligible, surely you should have acted when Bill Shorten failed to do so?

ATTORNEY-GENERAL: Well, to refer would have been to very much politicise an issue that could have been dealt with by Bill Shorten showing a leadership position and asking these three to resign. So, we have, yes, taken a very procedural course, put this absolutely beyond doubt. Our view was always that there was little or no doubt with respect to this in about October of last year. But going to both that question and the previous question, as I noted at the outset, in relation to this issue, Mark Dreyfus said 'Labor care about the constitutional legitimacy of the Australian Parliament.' If that is true, Bill Shorten must require the resignation of those three Labor members today.

QUESTION: Inaudible

MINISTER PYNE: And Samantha, there's no need to refer these members to the High Court. That would be more waste of taxpayers' money. It would be more delay and take more time when there's an unambiguous decision of the High Court today confirming an unambiguous decision in the Canavan case. Referring those members to the High Court, if that's what Bill Shorten ends up thinking is the thing to do, he's just costing taxpayers more money and more delay. It's time for Bill Shorten to front up and act like a leader rather than a union bovver boy.

QUESTION: What happens then if they take their seats this afternoon, what will you do?

MINISTER PYNE: We expect Bill Shorten to do the right thing and cause those members to resign. That is a matter for Bill Shorten and for Bill Shorten's leadership.

QUESTION: The operation of section 44 is very strict. Are you going to commit to a referendum to fix it or attempt some kind of patch up job to prevent these problems at the next election?

ATTORNEY-GENERAL: What we are doing today is sorting through the constitutional legitimacy of the Parliament that we have before us and the four members who should not be sitting in that Parliament …

QUESTION: … So, they should not come into the Parliament today?

ATTORNEY-GENERAL: They should not. They should resign. Bill Shorten should require the resignation of his three members of Parliament. Sadly, Rebekha Sharkie should also resign. She should do that now. And look, some contention was put by Rebekha today that her case is distinguishable because she applied for annunciation before the close of nominations.  That is precisely what all the other members did. Her case is indistinguishable – the four cases are legally and in principle indistinguishable from each other and indistinguishable from the case of Senator Gallagher.

MINISTER PYNE: There is no difficulty at the next election because the High Court's made it very clear that all members of Parliament have to do, or aspiring members of Parliament, is get their act together in good time before nominations close. And in the case of all these members, they didn't get their act together in time.

QUESTION: But you said that before October, the Labor Party with its strict vetting processes and these MPs, thought they were in accordance with the statutory ruling, the reasonable steps judgement. Do you accept that?

ATTORNEY-GENERAL: I don't accept that. I think that this strict vetting process was just an utter smokescreen designed to delay to what was going to be the inevitable day of reckoning and here we are, and yet still we have not had the required resignation of the members in question.

QUESTION: Attorney, you set a very specific deadline earlier, you said they must resign by the close of business today. That implies there are consequences if they don't. What are the consequences if they don't?

ATTORNEY-GENERAL: Well, what we say is that it is inevitable that they will, because the clarity of this decision and the public pressure that we've brought to bear and no doubt the views of people in this room, put to Bill Shorten when he actually has the courage to front you, will be so insurmountable that there is no other realistic outcome to this than the resignation of those four.

QUESTION: Do you have a parliamentary mechanism you can use, though?

ATTORNEY-GENERAL: Well, it will be unnecessary because they will resign, and Bill Shorten no doubt will require their resignation because there is no other choice here.

MINISTER PYNE: Karen, you can ask that questions all these different ways about what the Government will or will not do. Today the question is to Bill Shorten; will he do the right thing, finally, after nine months since August last year, of obfuscating? Will he do the right thing, act like a leader and cause these members to resign? That is a matter for him.

QUESTION: …. sitting in Parliament when they're not entitled to be, that's illegal.

MINISTER PYNE: That's why they should resign.

ATTORNEY-GENERAL: Exactly, and there is actually a mechanism in the Constitution to require a fine, but it's not going to come to that, because the individuals …

QUESTION: Why not?

ATTORNEY-GENERAL: ….well, individual plaintiffs might seek to use that particular provision, but these Members need to resign today. Look, the reality is that, in the operation of the law and in politics, there are sometimes, in fact, more often than not, grey areas. On very few occasions is their absolute clarity about the state of affairs. This is one of those rare occasions.  And that clarity determines a singular course of action which is Bill Shorten demanding, requiring and affecting the resignation of his three Members.

MINISTER PYNE: And your question goes to why John Alexander resigned last year. As soon as John Alexander could not satisfy himself that he didn't have an entitlement to citizenship of another country, he realised that he could be in breach of the constitution, so he resigned immediately. He did the right thing. Now, in all the Labor Party cases, none of them are doing the right thing, unless they resign today, but they should have resigned last August when they had the chance.

QUESTION: Just picking up this question, though, in relation to these fines.  I mean, this is a racket, is it not? When you were running the Social Services portfolio, if someone did the wrong thing, you didn't say to them: Oh, if you stop claiming for a single parent pension when you're living in a de facto relationship, if you just stopped doing that, we won't ask for the money back. Why shouldn't these politicians have to pay the money back if they've been sitting in Parliament illegally? Why shouldn't the parties have to face some sort of penalty for that, other than just fighting by-elections?

ATTORNEY-GENERAL: Well, Samantha, I mean, there is a provision in the Constitution, in the use of the Common Suitors' Act that allows for that to happen. But that is not the question today. The question today is what happens to these four Members who are not validly sitting in the Australian Parliament, and they should resign.

QUESTION: So is it $11 million in legal fees this has cost the Australian taxpayer.  Can you respond to that? Does that pass the pub test, that sort of thing?

ATTORNEY-GENERAL: Well, this should not have occurred. I mean, Bill Shorten could have dealt with this far, far earlier. And let me say that when Bill Shorten and Mark Dreyfus were going out and talking about reasonable steps tests and the reasonable steps that Senator Gallagher took, they knew that was wrong at law. They were delaying, they were obfuscating, and they did so at enormous expense to the Australian taxpayer, and frankly, they tried to take everyone for mugs and there was always going to be a day of reckoning and here it is, and where are they?

MINISTER PYNE: But once again, this goes to the contrast between the way the Government's behaved and the way that the Labor Party has behaved, because when John Alexander realised that he was potentially in breach, he didn't refer himself to the High Court and cost a whole lot of taxpayers' money - he resigned. Now, on the other hand, Katy Gallagher and the Labor Party decided to refer her to the High Court when the Canavan decision was completely unambiguous. And if the Labor Party's course now is to refer those three members to the High Court, they will be wasting more taxpayers' money, more time in order to run this protection racket around their caucus.

QUESTION: Josh Wilson gave up his dual citizenship on the day that he was found out he was nominated, at the last minute. Do you think there is any scope for Josh Wilson's last minute nomination to count?

ATTORNEY-GENERAL: Well, it is a very strict decision, it was very strict in October, it has been confirmed in its strictness today. Now, you might have views about that but it is utterly clear, so the unfortunate answer to that is no.

MINISTER PYNE: And of course, if Josh Wilson and the Labor Party in Western Australia were aware that he might have a citizenship issue, they should have nominated someone else.

ATTORNEY-GENERAL: Thanks everyone