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senate vote 2017-08-17#5

Edited by mackay staff

on 2017-11-17 14:34:36


  • Documents Deputy Prime Minister; Order for the Production of Documents
  • Documents - Deputy Prime Minister - Let a vote happen


  • <p class="speaker">Nick McKim</p>
  • <p>I seek leave to move a motion to take note of the government response to an order for the production of documents.</p>
  • <p>Leave not granted.</p>
  • The majority voted against a [motion]( to let a vote happen. In parliamentary jargon, they voted to suspend the [standing orders]( This means that the vote won't happen.
  • ### Motion text
  • > *That so much of the standing orders be suspended as would prevent Senator McKim moving a motion relating to the Government's failure to provide a response to an order for production of documents concerning the Member for New England.*
  • <p>I move:</p>
  • <p class="italic">That so much of the standing orders be suspended as would prevent Senator McKim moving a motion relating to the Government's failure to provide a response to an order for production of documents concerning the Member for New England.</p>
  • <p>The reason I'm doing this in this way is that the Attorney-General is failing to provide the legal advice that the government is relying on in its quite abject defence of the Deputy Prime Minister, Mr Joyce. Certainly the Attorney-General has a right to decline to provide that legal advice, but it is the Senate's right to insist that the documents be produced irrespective of the claim for public interest immunity, because all we've got so far is a claim for public interest immunity made by a minister of the Crown. It is up to this place, the Senate, and all the senators in this place to determine whether it will accept that claim or, on the converse side of the discussion, to insist on the production of the legal advice. This suspension of standing orders will be, in effect, this Senate insisting that the Attorney-General provide the advice.</p>
  • <p>We've got a crisis in our democracy happening right now, as we speak. This is not just a crisis that is contained within the walls of this parliament or this chamber; it is a crisis of confidence in our democratic process out on the streets; in the pubs and the clubs, whether they be sporting or otherwise, of our country; and particularly around the dinner tables of ordinary Australians. We have a number of members of the Senate referred already to the High Court, sitting as the Court of Disputed Returns, and I'd bet my bottom dollar we will see more MPs referred to the High Court, sitting as the Court of Disputed Returns, as we move through the coming weeks and months.</p>
  • <p>What the Australian Greens want is evidence of two things, and really two things only. I am sure that the Senate will be prepared to compromise so that other matters can remain protected by a claim of public interest immunity. The first thing we want to see is the part of the legal advice that the Prime Minister was relying on when he issued his riding instructions to the High Court earlier this week and gave an absolute 100 per cent guarantee of certainty that the High Court would rule in favour of Mr Joyce remaining eligible to sit in this parliament, and that is that part of the legal advice that shows that the advice is unequivocal&#8212;in other words, that bit of the advice that allowed the Prime Minister to proceed with the 100 per cent level of certainty that he did earlier this week in the House of Representatives. What gives him and the Attorney-General such confidence that the High Court is, with absolute certainty, going to rule that Mr Joyce was eligible to be elected and therefore is eligible to remain as a member of parliament?</p>
  • <p>Remember, this isn't a humble backbencher we're talking about&#8212;I know humility's not a strong suit of Mr Joyce. This man is the Deputy Prime Minister of Australia, and within a couple of weeks he's going to be the Acting Prime Minister of Australia. He's going to be running the show at the same time as the High Court, sitting as the Court of Disputed Returns, is going to be considering how to respond to the reference by the House of Representatives of the Deputy Prime Minister, who will soon be running the country when the PM is overseas.</p>
  • <p>So let's have a look at that part of the legal advice that the government, the Attorney-General and the Prime Minister are relying on that shows that the advice is unequivocal. It's worth placing on the record that government experts and their own legal counsel have told us that it's pretty much black and white, as Mr Joyce said. The second element we're after is the part of the S-G's advice that demonstrates that the member for New England is legitimately authorised to remain and vote in the parliament. That is what we are demanding. <i>(Time expired)</i></p>
  • <p class="speaker">George Brandis</p>
  • <p>First of all, I should point out to the Senate that neither I nor my office nor, so far as I can establish, the government received any notice of this motion by Senator McKim to suspend standing orders. I know that Senator McKim hasn't been here for very long, but it is a longstanding courtesy of this chamber that a motion of this kind is only moved after notice has been given. I see Senator McKim giggling away up there on the crossbench. Senator McKim, if you're not prepared to extend your colleagues the ordinary professional courtesy that is always extended by colleagues in this chamber to one another, despite party differences, you do not belong here.</p>
  • <p>The motion is a motion to suspend standing orders so as to take note of the response of the government to an order to produce documents. The order to produce documents sought the production of legal advice&#8212;specifically, Solicitor-General advice. It is well known to every member of this chamber that, as a matter of course, governments do not publish their legal advice. That is a practice observed by Labor governments and coalition governments alike. The principle, which was stated by a former Labor Attorney-General, Gareth Evans QC, some years ago, is this:</p>
  • <p class="italic">Nor is it the practice or has it been the practice over the years for any government to make available legal advice from its legal advisers made in the course of the normal decision making process of government, for good practical reasons associated with good government and also as a matter of fundamental principle.</p>
  • <p>Former Senator Evans said that in this chamber on 28 August 1995. The practice to which former Senator Evans then referred is a practice that had been observed by every Australian government since federation and, although that statement was made in 1995, it has been observed by every Australian government since, including, most recently, by the Gillard government, when Senator Ludwig, who represented the Attorney-General of that government, during an estimates hearing on 26 May 2011 said:</p>
  • <p class="italic">To the extent that we are now going to go to the content of the advice, can I say that it has been a longstanding practice of both this government and successive governments not to disclose the content of advice.</p>
  • <p>And that statement is not only correct; it is uncontroversial&#8212;indeed, it is canonical.</p>
  • <p>Now&#8212;on no notice whatsoever&#8212;what Senator McKim seeks to do is to overturn 116 years of constitutional orthodoxy. Of course the government will not be producing legal advice because we will be observing the fundamental, well-established and never-questioned constitutional orthodoxy that governments do not produce their legal advice. And I look forward to hearing Senator Collins, who represents the Labor Party in the chamber at the moment, confirming that that is the Labor Party's understanding of the constitutional orthodoxy.</p>
  • <p>The question of Mr Joyce was referred by the government, of its own free choice, to the High Court, sitting as the Court of Disputed Returns, on Monday of this week after receiving Solicitor-General advice and after having considered that advice. On the basis of the government's consideration of that advice, we have taken the position that we have taken. Nevertheless, the matter is going to be argued before the High Court in coming weeks and, because of that, of course it would put the parties in an impossible position if the legal advice on which the government acted, which was received confidentially, were to be published.</p>
  • <p class="speaker">Jacinta Collins</p>
  • <p>The opposition will not be supporting this suspension of standing orders today. This is not for the reasons advanced by Senator Brandis, however. He characterises courtesy in this chamber around matters around the order for production of documents. Yet I can recall not long ago Senator Birmingham refusing to respond to a Senate order for production of documents on that occasion. I can recall countless suspensions of standing orders that have occurred following the chamber's refusal to allow a senator to take note without any notice.</p>
  • <p class="italic">Senator Brandis interjecting&#8212;</p>
  • <p>'An issue of this kind,' says Senator Brandis. Well, I'm sorry, Senator Brandis, but I also differ with your characterisation about the position with respect to legal advice&#8212;but once again you will say, 'Not on matters of this nature.' There have been countless situations where, with careful consideration, government has provided legal advice.</p>
  • <p>I would like to make it very clear that the opposition thinks the Attorney-General should comply with the Senate's order yesterday for the production of documents. This Attorney-General is a serial offender when it comes to ignoring orders of the Senate, particularly when it comes to orders for production of documents. This is a very serious matter as it deals with the eligibility of the member for New England and Deputy Prime Minister to sit in the other place and, indeed, hold the second-highest office of the land.</p>
  • <p>We will not be supporting this suspension of standing orders for a few reasons. Firstly, the time frame for compliance with the order of the Senate was midday today. And while we note that the Attorney-General has not met this deadline, it is still now only around 90 minutes past that time. We would use this opportunity to remind the Attorney-General of the seriousness of the matter that surrounds this order for the production of document and we call on him to comply with the order as a matter of urgency. Secondly, we do not respect that the government does not always release legal advice. This is a matter that needs to be considered seriously. Thus, there is some flexibility in Labor's position about the time frame. However, it is open to the Attorney to release appropriate redacted advice that meets the order of the Senate without prejudicing hearings.</p>
  • <p>We also note that the matter surrounding the Deputy Prime Minister's citizenship is shortly to be before the High Court of Australia. I do, however, foreshadow to the Attorney-General and the government in the Senate that the opposition will be watching compliance with this order very carefully. It is open to pursuing this matter in the next sitting period in this chamber. We aren't supporting Senator McKim, because in this attempt to censure Senator Wong he has only given us as much notice as he gave the opposition yesterday. It is for these reasons that the opposition will not be supporting the suspension today.</p>
  • <p class="speaker">Derryn Hinch</p>
  • <p>I will be supporting the Greens' move to suspend standing orders because I do agree with Senator McKim that it is a matter of major importance. Here we have this man, the second-highest officer in the land, the Deputy Prime Minister, holding onto his job there. The Attorney-General, himself, stood alongside Senator Canavan when he relinquished his ministerial position and his place in cabinet and said he would not vote until the High Court hearing had been done. I think that was right and proper. I saw the Deputy Prime Minister on Sky News last night. He didn't seem to be showing much remorse, given the situation. This should be discussed, and I agree that the standing orders should be suspended.</p>
  • <p class="speaker">Ian Macdonald</p>
  • <p>This is a motion to suspend standing orders to deal with a matter that has already been raised a number of times in this chamber. If there is any doubt whatsoever about any member of parliament, the right institution to determine that is the High Court, not a kangaroo court of this chamber, which the Greens keep trying to set up.</p>
  • <p>I say to Senator McKim, by interjection, that it has been raised in several newspapers that he is English-born and has never, as I understand it, shown any material on how he has renounced that citizenship.</p>
  • <p class="speaker">Gavin Marshall</p>
  • <p>Senator McKim, a point of order?</p>
  • <p class="speaker">Nick McKim</p>
  • <p>Senator Macdonald is misleading the Senate. What he has just said is false.</p>
  • <p class="speaker">Gavin Marshall</p>
  • <p>That is not a point of order.</p>
  • <p class="speaker">Ian Macdonald</p>
  • <p>Perhaps, if Senator McKim takes some umbrage at that, he could easily fix it by tabling the documents in the Senate, which is what he asked everybody else to do. You see, it is always one rule for everyone else and a separate rule for the Greens political party. I might say to anyone having the misfortune to listen to this debate that Senator McKim was once a minister in a government&#8212;albeit, the government of Tasmania&#8212;</p>
  • <p class="speaker">Gavin Marshall</p>
  • <p>Senator McKim, a point of order?</p>
  • <p class="speaker">Nick McKim</p>
  • <p>He's taking pot shots at my home state of Tasmania, which I resent and which every Tasmanian will resent.</p>
  • <p class="speaker">Gavin Marshall</p>
  • <p>It is not a point of order.</p>
  • <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>