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Thursday, 4 April 2019
Page: 14898


Mr HAWKE (MitchellSpecial Minister of State) (16:36): I move:

That the House require all Members to provide statements in relation to disqualification under sections 44 or 45 of the Constitution in the following terms:

Members ' qualifications

Register of Members ' qualifications relating to sections 44 and 45 of the Constitution

(1) The Registrar of Members' Interests shall, in accordance with procedures determined by the Committee of Privileges and Members' Interests (the committee), maintain a Register of Members' qualifications, comprising material:

(a) tabled on behalf of the Australian Electoral Commission in accordance with s. 181B of Part XIV of the Commonwealth Electoral Act 1918 in respect of Members; and

(b) provided by Members in accordance with the obligation to provide an attestation or supplementary information under paragraphs (5), (6) or (7) of this resolution.

(2) Other than as provided for in this resolution, the committee has the same powers and functions in relation to the Register as it does in relation to the Register of Members' Interests.

(3) The Registrar shall publish the Register and any supplementary information as soon as practicable after a Member has provided documents to the Registrar, or after tabling of documents on behalf of the Australian Electoral Commission.

(4) The Registrar shall remove information from the published copy of the Register when a Member ceases to hold office as a Member of the House of Representatives.

Requirement to provide statements and supplementary information

(5) Within 28 days of making and subscribing an oath or affirmation as a Member of the House of Representatives in accordance with section 42 of the Constitution, each Member shall provide to the Registrar a statement attesting to the House of Representatives the accuracy and completeness of the material provided to, and tabled on behalf of, the Australian Electoral Commission in respect of the Member's last nomination for election in accordance with Part XIV of the Commonwealth Electoral Act.

(6) In making an attestation in accordance with paragraph (5), a Member may provide supplementary material. Supplementary material may augment, explain, or correct earlier information contained in the material provided to, and tabled on behalf of, the Australian Electoral Commission, but must not result in removal from the Register of material that was previously entered on the Register.

(7) If a Member becomes aware that information they have attested to in accordance with paragraph (5), or have subsequently provided in accordance with paragraph (6), can no longer be regarded as accurate, the Member shall provide supplementary material to the Registrar as soon as practicable, but no later than 28 days, after the Member becomes aware of the inaccuracy. Such supplementary material does not cause earlier material to be removed from the Register.

(8) The committee shall prescribe a form or forms for the purposes of paragraphs (5), (6) or (7), which shall be consistent with the disclosure requirements in Part XIV of the Commonwealth Electoral Act.

Consideration of possible disqualification matters

(9) The House of Representatives will deal with any question concerning a Member's qualification under the Constitution only in accordance with the following procedures, and not otherwise.

(10) If a Member becomes aware of circumstances that give rise to a possible disqualification under sections 44 or 45, arising from facts not disclosed in accordance with Part XIV of the Commonwealth Electoral Act, the Member may provide a statement of those circumstances to the Speaker. Any material redacted from the material entered onto the Register, including redactions from documents tabled on behalf of the Australian Electoral Commission is taken not to have been disclosed.

(11) If, and only if, a matter satisfies the conditions in paragraph (10), the Speaker shall, as soon as practicable, report the matter to the House, and the Member who raised the matter may move, without notice, a motion referring the matter to the committee for inquiry and report.

(12) Before reporting on such a matter, the committee shall provide a reasonable opportunity for a Member affected by the reference to respond to the allegations, to the evidence before the committee, and to any recommendation the committee proposes to make.

(13) If, on the evidence before it, the committee considers that there is sufficient doubt about a Member's qualifications, then the committee may recommend that the matter be referred to the Court of Disputed Returns under section 376 of the Commonwealth Electoral Act; however, the committee shall not make such a recommendation unless it determines that the question arises from facts not disclosed in accordance with Part XIV of the Commonwealth Electoral Act.

(14) When a question respecting a Member's qualification turns solely upon the interpretation or application of foreign citizenship law, the committee shall not recommend that the question be referred to the Court of Disputed Returns unless the committee has taken evidence from experts in the relevant foreign law and the committee considers there is a sufficient possibility that the Member was a foreign citizen under the relevant foreign law at the relevant time.

Referral to Court of Disputed Returns

(15) Notwithstanding anything contained in the standing orders or any other resolution, no Member may move a motion to refer any question to the Court of Disputed Returns under section 376 of the Commonwealth Electoral Act unless the committee has considered whether the matter be so referred and reported to the House of Representatives. After the committee has made such a report, a Member may, without notice, move to refer the matter to the Court of Disputed Returns.

False statements or omissions regarded as contempt

(16) Any Member who:

(a) knowingly fails to provide the material required by this resolution to the Registrar within the required timeframe; or

(b) knowingly fails to correct an inaccuracy in any material within the required timeframe; or

(c) knowingly provides false or misleading information to the Registrar;

shall be guilty of a serious contempt of the House of Representatives and shall be dealt with by the House accordingly.

(17) A question of whether any Member has committed such a serious contempt shall first be referred to the committee for inquiry and report.

This motion was developed in response to a proposal from the Joint Standing Committee on Electoral Matters in their 2018 report titled Excluded: the impact of section 44 on Australian democracy. I want to thank, from the outset, the opposition, the parliament, members of the government and members of the committee who worked on this report to ensure that we had a bipartisan arrangement in relation to improvements in the law and improvements to our standing orders here and in the Senate in relation to the administration of section 44 under the Constitution and in the requirements of the electoral processes to ensure that we get a better outcome for the Australian people.

The joint standing committee proposed that, in addition to legislative changes to require federal election candidates to disclose information about their eligibility to hold office under the Constitution, the House and the Senate also needed to adopt complementary parliamentary processes related to the issues of constitutional qualifications. I think any member that reflected on the passage of events in the last parliament that we've had would agree that there would be a need for improvement related to the issues of constitutional qualification procedures within our chambers.

Although interim motions were adopted to deal with these issues in each chamber, this replacement motion that I'm proposing today on behalf of the government was developed with the benefit of greater time. It deals more comprehensively with the eligibility issues and ensures greater alignment between the practices of both the House and the Senate to ensure fairness of treatment to all members and senators. A parallel motion, I note, was adopted in the Senate yesterday.

This motion does two things. The motion establishes a process to require public disclosure following discovery of new information after an election. Given that the electoral requirements for nominations now, as the parliament's laws have made clear, require disclosure of section 44 information up-front and transparently on the AEC's website, any new information will be required to be brought forward under this motion to the parliament in an orderly process with the cooperation of members and the Speaker. It's also fair and proposes a fair and orderly process for making referrals to the High Court sitting as the Court of Disputed Returns. Members will note that, given the lack of clarity about the procedures for making referrals to the High Court from this chamber, this motion will adopt a standing order change which will allow us to make an orderly referral and ensure there is clarity in future situations.

The Senate motion differs from the House motion in one regard: to provide procedures for disclosures by senators who are appointed to fill casual vacancies. Obviously, this is not relevant for members elected via by-elections as they can make their initial disclosures about their qualifications via the Australian Electoral Commission. As per the procedure with a general election, in a by-election candidates will be required to lodge the same information that a lower house candidate will have to nominate at a general election. The motions have bipartisan support, as I've stated. They've been shared with the chairs of the parliamentary committees that would have roles in administering these motions. They include the House Standing Committee of Privileges and Members' Interests.

I commend the motion to the House and simply record again my thanks to the opposition, the parliament, the Senate, the chairs and the Joint Standing Committee on Electoral Matters. It is important that, at this juncture, we provide clarity to members, with an election imminent, and that we understand and know the procedures. We listened to the outcomes of the High Court cases that have made clear the High Court's view on section 44, and I can say confidently to the Australian people, to the gallery and to the parliament that this government has listened very carefully and has moved to adopt modern and relevant changes to the law surrounding nominations regarding section 44, and that the motions that change standing orders in our House will also provide clarity to members in future parliaments.

Question agreed to.