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Thursday, 13 September 2018
Page: 49

Minister for Home Affairs


Mr BURKE (WatsonManager of Opposition Business) (14:30): My question is to the Prime Minister. In the previous answer, the Prime Minister said it was only a couple of weeks ago that the parliament considered whether to refer the Minister for Home Affairs to the High Court. Can the Prime Minister confirm that that vote was before the Solicitor-General had provided advice, and that that referral was defeated by just one vote, the vote of the Minister for Home Affairs? Why should the Minister for Home Affairs be allowed to hold the casting vote on his own referral to the High Court when even Malcolm Turnbull says he should be referred?


Mr PORTER (PearceAttorney-General) (14:30): I thank the member for his question. It is the case that there are now four pieces of legal advice in the public domain. One was commissioned by the national secretariat of the Labor Party, which sat to one side for 126 days. One is from the Solicitor-General. Two were commissioned by the member for Dickson. All of them are from senior counsels. Three of them conclude that the best view is that there is clear eligibility. One of them, commissioned by the Labor Party, interestingly, gives a view which is not the same as the other three, but a view about ineligibility.

Mr Perrett interjecting

The SPEAKER: The member for Moreton will leave under 94(a).

The member for Moreton then left the chamber.

Mr PORTER: Actually, when you take the time to read the advice that Labor commissioned and which sat in someone's drawer for 126 days, in the last paragraph the lawyers say, 'In our opinion it is clearly arguable that this at least represents an indirect pecuniary interest'. Then, 36 words after the word 'arguable', comes the rolled gold conclusion, 'As such, it follows that, in our opinion, Mr Dutton was incapable'. I must say that is one of the more curiously confident pieces of legal deductive reasoning that I have ever seen. A 1970 GT Falcon can go from zero to 100 in 6.9 seconds. Rarely have I seen legal advice go from 'reasonably arguable' to a rolled gold conclusion that someone is incapable of sitting in 36 words. It is absolutely remarkable.

The more reasonable appraisal is the one that is contained in the Solicitor-General's advice, which has been published and is fully available for anyone who wishes to read it. Whilst the Solicitor-General concludes that this is not an uncomplicated matter, he concludes in paragraph 4, 'the better view is that Mr Dutton is not incapable of sitting as a member'.

So what have we got? We've got one advice from Labor which provides yet another rolled gold guarantee—we've had a few of those from Labor before—of ineligibility. We've got the Solicitor-General's advice and advice from two other senior counsels that says whilst there is never uncertainty, the better view is that there is no incapacity to sit.

Labor say something that they sat on for 126 days is now so critically urgent and raises such terrible doubt to the integrity of the parliament that it must be acted on 126 days later. The answer here really is if the new standard that's being set by Labor is that anything short of or any absence of absolute certainty is now the standard for referral, then what next? Who else is to be referred? There are a number of people sitting here—indeed, there are a couple I can think of on that side—where that standard that they're now suggesting should exist, an absence of absolute certainty in a matter of this type, should warrant a referral. Perhaps they'll ask another question so we can talk about those people.

The reality here is that there is publicly seen advice, times four, and that advice concludes— (Time expired)