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Wednesday, 29 May 1996
Page: 1249

Senator MINCHIN (Parliamentary Secretary to the Prime Minister)(10.38 a.m.) —I was not going to speak on this motion, because I appear to be on trial in here. I have always taken the view that you should always get the best barristers to appear for you, and I have had Senators Hill, Alston and Abetz ably appearing on my behalf in this trial.

Senator Robert Ray —We will appeal for clemency.

Senator MINCHIN —Thank you, Senator Ray. However, I do need to respond to some of the claims made by Senators Ray and Schacht yesterday in the debate. Of course, I am used to abuse being hurled at me from many quarters. It is bemusing to listen to abuse from the ALP that is normally reserved for hurling at itself in its interminable faction fights when all sorts of allegations are made against each other within that party. The common reference to me has been that I am a dill. I am certainly used to that; my 10-year-old son calls me a dill every time I tip the Adelaide Crows to win in Melbourne.

However, I take, at the very least, strong objection to the inference that I have lied to the Senate. Senator Ray's impassioned speech about my role revealed the true tactics in this. There is an attempt to get me; I suppose I should be flattered by that. However, the Labor Party is trampling all over Ms Ferris to have a go at me, and the nature of their motion clearly reveals that. Senator Ray's comments clearly reflected that. He basically said, `Senator Minchin has to appear in this chamber and answer these charges, or we have got him.' He is talking as if he was some mafia don, out to crucify the government and government senators.

The allegation made was that I deliberately misled the Senate about the timing of legal advice to Ms Ferris. As I understand it, the assertion was that the advice of 17 May from Wheeler QC was the only legal advice that she received and, therefore, I must have lied in my statement of 22 May, where I referred to earlier legal advice to Ms Ferris. This was what I had to come into this chamber and respond to immediately.

I refer the Senate to a letter Ms Ferris has handed to me, dated 28 May, from Josephine Kelly BA, LLb, Barrister at Law, Selborne Chambers, Sydney, in which she says:

Dear Ms Ferris,

I confirm that on or about 7 February 1996 we had a telephone discussion about whether or not you would breach s 44 of the Constitution if you accepted a position in the office of a member of Parliament after the election and until your term as a senator commenced on 1 July 1996.

In response, and without going into the matter further, I forwarded to you several pages from the authoritative work "Lane's Commentary on the Australian Constitution", including pages 63-66 inclusive which deal with s 44. I also advised during a telephone conversation that I was not aware of any decided cases dealing with the circumstances you were foreshadowing.

I referred you particularly to page 66 of Professor Lane's work where he gives his opinion about a "senator elect" in circumstances I understood to be similar to yours, and which supports the proposition that accepting the position you were considering while a "senator elect", would not constitute a breach of s 44.

Following the election, you rang me again and asked me whether accepting a position in Senator Minchin's office until your term as senator commenced would breach s 44. Again, on the authority of Professor Lane's discussion and on the basis of the circumstances you told me of, I expressed the view that it would not.

That is the advice to which I referred in my statement. I did not lie to the Senate and I would appreciate your retracting the inference that I lied or misled the Senate. I will table that letter. I will also table a fax from Josephine Kelly, Barrister at Law, dated 7 February 1996, which encloses the pages from Lane's Commentary on the Australian Constitution to which Ms Kelly refers in her letter, dated 28 May, to Ms Ferris.

Senator Neal —Extracts from a book do not constitute advice.

Senator MINCHIN —Thank you for that legal opinion. I would also like to table, at the request of the Clerk, his advice on this matter. It is somewhat ironic that I should be asked to do this but, apparently, I am the last speaker on this motion, and I am happy to do it. In doing so, I make some respectful comments about Mr Evans's paper. I am not aware that he is a barrister or a constitutional lawyer, but I am always interested in his views. Of course, I fundamentally agree with him on the question of a constitutional monarchy. But I have to say that I do not agree with his advice. There is a fundamental error in his advice. He asks the question:

Did she hold an office?

He refers to my employment of Senator-elect Ferris in my capacity as a senator and concludes that, as a senator, I am entitled to appoint staff without qualification. He then asks:

Was it an office under the Crown?

He then refers to my employing her in my capacity as a parliamentary secretary to the Prime Minister. He cannot have it both ways. Our whole point is, and the legal advice from Wheeler QC is, that the proposed appointment was made in my capacity as a parliamentary secretary, which was clearly subject to the approval of the minister, and the approval was not granted. That is why she concludes that there was no office of profit under the crown. So Mr Evans's opinion on this has a fundamental error of fact about the status in which I am purported to be employing Ms Ferris. I table this document, but I cast it to one side.

In speaking briefly to the motion, I do support what Senator Alston has said. The fundamental problem with this motion, as presented by the Labor Party, is its reference to section 376, because section 376 talks about the power of the Senate to refer any question respecting the qualifications of a senator or respecting a vacancy. Fundamentally, there is neither case in issue here. We are not dealing with a senator and we are not dealing with a vacancy. I do not see how this motion can then really stand up.

The motion exposes Ms Ferris to a double jeopardy. The Court of Disputed Returns may reject this petition on the grounds that the Senate is not capable of referring this matter at this stage when the person in question is a senator-elect and not a senator, and nor is there a vacancy. It poses the risk for Ms Ferris of having to go through this twice—of having to appear before the Court of Disputed Returns on this petition, having it thrown out and then you bringing it back and proposing that it be dealt with when she is a senator. I think that is outrageous.

In relation to subparagraphs (d), (e) and (f) of the motion, this reflects the utter incompe tence of the Labor Party and the naked ambition of the Labor Party simply to have a go at me and to use the machine-gun to scatter everyone in their path. They refer in subparagraph (d) to any other senator aiding, abetting, counselling or procuring, or by act or omission being concerned, et cetera. Obviously, we all know that is directed at me. I understand the minor parties, at least, are not going to wear those provisions. Those words seem to have been taken from subsection 352(2) of the Electoral Act. It states:

For purposes of this Part, a person who aids, abets, counsels or procures, or by act or omission is . . . party to, the contravention of a provision of this Act, the Crimes Act 1914

or the regulations under this Act shall be deemed to have contravened that provision.

That quite clearly is referring to breaches of the Electoral Act or the Crimes Act. Not even the ALP, I believe, at this stage, is accusing me of breaching the Electoral Act or the Crimes Act. If it is, I would like it to advise me. On that basis alone, this is a nonsensical motion in its reference in subparagraphs (d), (e) and (f) to section 352, which it does not indicate in this—you have to go and find it.

I really think this is a very lightweight motion. It is nothing more than a witch-hunt designed primarily to get me and, in the meantime, to trample all over Ms Ferris. I table the documents. I regret that this motion has been brought in in the way it has been brought, dealing with a senator-elect. I think it is unbelievable that the Senate, in an unprecedented fashion, is seeking to force—by the power of the Senate, one of the great institutions of this country—a senator-elect, who is not a member of this chamber and is not here to speak on her own behalf, before the High Court to defend herself at considerable cost to her. It is unwarranted behaviour.