How indirect is indirect?

Recently the High Court ruled that Bob Day was ineligible to be a Senator because he had an indirect pecuniary interest in the Commonwealth. The Liberals choose to bring that action and were successful in having Bob Day disqualified.

So fast forward to the present.

Labor has launched High Court action against Assistant Health Minister David Gillespie after a decision by the national executive today.

If Dr Gillespie, a Nationals MP from NSW, were to be disqualified from parliament it would threaten the Turnbull government’s slim majority.

Dr Gillespie owns a small shopping centre in Port Macquarie and one of his tenants has an arrangement with Australia Post, a government-owned business. Labor are questioning whether this means he has an indirect pecuniary interest with the Commonwealth.

I am a firm believer is poetic justice and on the facts and my understanding I suspect David Gillespie has a problem. It is going to be very interesting to watch the High Court either wriggle its way out of bringing down the government with a very nuanced argument or watch it actually bring down the government.

Even more interesting is that this is an issue that unites commentators with as diverse views as Andrew Bolt and John Quiggin.

My views are mixed. On the one hand I understand the mischief that could occur if an MP did have a pecuniary interest in the Commonwealth. On the other hand, the founders did not envisage a Commonwealth that has such an intrusive and ubiquitous presence in our lives.

As John Quiggin suggests this has become an absurd technicality. But nonetheless it is a technicality  written into the constitution and the Liberals used that very technicality this year.  The Liberals also tried to use this technicality to bring down the Gillard government. So it is unsurprising that Labor should repay the effort.

All up, however, this suggests that our friends in Canberra are not interested in the big picture – the flourishing and prosperity of Australia – but rather in playing silly buggers. As I once said on Radio National, unfortunately we can’t throw them all out at the same time.

The other point that I should point out is that this represents the increasing Americanisation of our politics. Our American friends are used to settling their political disputes in the courts. I think this is a mistake – we should settle our disputes through the political process, in the Parliament, or at the ballot box.

This entry was posted in Federal Politics. Bookmark the permalink.

59 Responses to How indirect is indirect?

  1. ar

    Wasn’t Day already disqualified due to bankruptcy? The challenge to eligibility was to hurry things along and get someone new into the senate. Or not…

  2. Sinclair Davidson

    Perhaps. Bob has already resigned his seat.

    Perhaps the objective was to get the second person on the 2016 ballot into the Parliament and not have Family First nominate someone else. But even then that is playing silly buggers.

  3. Infidel Tiger

    Anything that ends this current government is welcome.

    We can survive 6 years of Shorten. For the most part it is only poor people who will suffer and die anyway.

  4. Bruce of Newcastle

    Oh look what was in the paper yesterday!

    Labor and unions pocket $6.4m each after Curtin House sold

    Labor and the ACTU have ­quietly sold John Curtin House in Canberra and will equally split the $12.8 million proceeds, leaving them in a strong financial position.

    The Department of Defence is the tenant until 2022. The buyer, Doma, bought the building to hold it for the long term and wants to keep the tenant, but could also refurbish if it departs.

    Does that mean all Labor Party MP’s were elected illegally in the last election?
    Seems to.

  5. Carpe Jugulum

    Bring it on

    it will be a backlash against the ALPBC

    Or a boost for the Stupid.Fucking.Liberals with Malturd in tow.

    In a more sane world it would mean the destruction of the greens and the ascendancy of the Conservatives in the senate.

  6. Bruce of Newcastle

    Oops, 7 June that story is from, not 7 July. Still means that the ALP was in breach of the Constitution, so all their MPs were ineligible to be elected.

  7. Bruce of Newcastle

    Well in breach of whatever Gillespie is supposed to be in breach of.

  8. Roger

    I am a firm believer is poetic justice and on the facts and my understanding I suspect David Gillespie has a problem. It is going to be very interesting to watch the High Court either wriggle its way out of bringing down the government with a very nuanced argument or watch it actually bring down the government.

    Good Lord!

    Are you drunk posting, Sinclair? In which case it’s a little bit early in the evening, although I understand you are in NZ presently.

    Be that as it may, the High Court’s chief and only concern in this matter is not the the government’s future but the application of the Constitution to this case.

    I suspect Gillespie is safe.

    Otoh, your complaint about the “Americanisation” of our politics is justified.

    Both major parties should take note.

  9. Infidel Tiger

    The repercussions of this case could be amazing.

    Technically I’m not sure anyone could sit in parliament. A very welcome development.

  10. Robber Baron

    He should have put the property in his wife’s name.

    Did he not learn anything from Rudd? Those hundreds of millions in outplacement fees only went to Therese…Kevin didn’t benefit at all did he? He just happened to live in the same multi-million dollar house(s). Sheer good fortune!

  11. jupes

    Be that as it may, the High Court’s chief and only concern in this matter is not the the government’s future but the application of the Constitution to this case.

    Yeah just like they “applied” the Constitution in the Mabo Case.

  12. Peted

    Sounds like a good reason to bring on the privatisation of Australia Post.

  13. a reader

    Surely with Australia Post being operated as a Government Business Enterprise at arm’s length from the government it wouldn’t count.

  14. 2dogs

    I doubt the ALP could win Lyne if a by-election was called; it would need a 10% swing.

  15. John64

    wriggle its way out of bringing down the government

    I don’t think things are that drastic, Professor.

    If Gillespie was forced out; LNP would control 74 out of 148 votes on the floor of the House of Representatives until a by-election could be held. So it would pass legislation with the Speaker’s casting vote. Plus, in the mad scramble after last year’s election; both Katter and McGowan stated they would support the LNP on matters of confidence. I don’t think anything has happened since that would change the position of these 2 independents.

    Gillespie won Lyne last year with a 2PP vote of 62% and won just under 50% of the first preference votes in his own right. So it would be short odds that the Nats would win a by-election with a new candidate. The fact this is Rob Oakeshott’s old seat you would think would make the voters less likely to experiment again with another independent in a tight Parliament. It didn’t work out too well last time.

    BTW; based on the precedent set with the decision in Bob Day’s case, I can’t see how the High Court could reach any decision other than to find David Gillespie ineligible.

  16. Brett

    I doubt the ALP could win Lyne if a by-election was called; it would need a 10% swing.

    True; but little Robbie Oakeshot and will probably have another crack, along with other independents who think their time might have come given the alienation of conservatives by Maladroit.

  17. Habib

    I think it’s shameless opportunism and a colossol waste of money and HCA time, however schadenfraude is a hoot, and anything that tips these deadshits out of their sinecure is a winner. Hopefully a hung parliament limps on for a while doing nothing, falls over, and is replaced with another one equally imobile. Best this place ever runs is when governments can’t govern.

  18. Sinclair Davidson

    Roger – in principle you are quite correct. The High Court should only concern itself with the strict application and interpretation of the Constitution. Let justice be done even though the heavens fall and all that.

    But … I suspect I have become jaded enough to know (think?) that the courts don’t (always) behave in that manner.

  19. Tel

    We can survive 6 years of Shorten. For the most part it is only poor people who will suffer and die anyway.

    Oh I think anyone who owns Australian Government Bonds is quite likely to suffer.

  20. Habib

    So the Chicoms cop a burn as well, who gives a fuck? Surely no-one here would be dim enough to entrust their beer vouchers voluntarily with any Australian government? Be better off pumping it into keno. Or kero. In the NT. Packaged in individual portions.

  21. Crossie

    As I once said on Radio National, unfortunately we can’t throw them all out at the same time.

    We can throw out all the incumbents and replace them with a new crop which would give us about a year before the new ones go off.

  22. C.L.

    It would be a fitting and appropriately embarrassing end to the Turnbull Debacle.

  23. Crossie

    Hopefully a hung parliament limps on for a while doing nothing, falls over, and is replaced with another one equally imobile. Best this place ever runs is when governments can’t govern.

    Didn’t Belgium run without a government for over a year and nobody noticed?

  24. Crossie

    In fact we would be better off without a government, no new laws, no new programs. Government would run on with the tax it gets and no more.

  25. H B Bear

    But … I suspect I have become jaded enough to know (think?) that the courts don’t (always) behave in that manner.

    For shame Snic. Surely you aren’t saying the separation of powers is not a feature of the Australian legal system? It’s enough to make Lionel Murphy turn in his grave.

  26. Pedro the Ignorant

    IF Gillespie loses his seat because of this lawfare bullshit, it will hasten the HOP time. This is blatant opportunism using a highly technical legal avenue to score a political point. The Day decision outraged many people, this will just throw more fuel on the fire.

    What a crock, and no wonder people despise these fools in Parliament, regardless of political colour.

    In what universe could owning a shop in a country town that has a tenant who has a licence to run a Australia Post franchise influence Government policy?

  27. Marcus Classis

    I think this is a mistake – we should settle our disputes through the political process, in the Parliament, or at the ballot box.

    Nope.

    Duello. Political issues like this involving politicians should be settled by duello.

    In the case of our sleazoids… oops, politicians, I think duels should use flamethrowers, in a phone booth. With the politicians involved naked.

    However, this may be seen as slightly a tiny bit unnecessarily dangerous.
    So hows about just using the Irish Code Duello, as “adopted at the Clonmel Summer Assizes in 1777 for the government of duellists”. We just replace the black powder duelling pistols with .457 magnums.

  28. Habib

    Fling both from a trebuchet into a stone wall while afire, survivor if any retains seat.

  29. Zulu Kilo Two Alpha

    Duello. Political issues like this involving politicians should be settled by duello.

    I have often lamented the passing of the practice of dueling – it gave gentlemen an opportunity to settle their differences, besides I used to be a crack shot with a handgun..

  30. Habib

    Should’ve noticed a lack of new regulation, imposition and larceny, and no decline in income, savings and living standards.

  31. jock

    If only the high court would find that any payment to a federal mp including a salary was in breach of the constitution. We would see how long these tossers wanted to remain in parliament if it meant no pay no perks no pension.

  32. jock

    I should also add that the inference in the constitution that teceiving money from the commonwealth leads to bias can be turned the other way. Judges paid for by the commonwealth would have to be biased in any tax or regulatory case and would have to recuse themselves.

    This vould be fun.

  33. Zulu Kilo Two Alpha

    If only the high court would find that any payment to a federal mp including a salary was in breach of the constitution. We would see how long these tossers wanted to remain in parliament if it meant no pay no perks no pension.

    That’s a sight I’d pay good money to see..

  34. Zyconoclast

    How many federal politicians have been removed by?
    44. Any person who –

    (i.) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power:

  35. wal1957

    And they wonder why we can’t stand the bastards?
    How about doing what they’re paid to do!
    If the country was a business, all current thieving, self-serving politicians, ( 90% or more of the current rabble), would have been shown the door well before now.
    I used to vote Liberal, not anymore!
    Now… I vote for the party that stands for the values that I believe in.
    Both Liberals and Labor (the 2 majors) are on the nose.
    It’s going to be an interesting election next time around.

  36. H B Bear

    Reckon you might have Doris Bagshawe under that clause Zyconoclast.

  37. JohnA

    Infidel Tiger #2435888, posted on July 8, 2017 at 6:52 pm

    The repercussions of this case could be amazing.

    Technically I’m not sure anyone could sit in parliament. A very welcome development.

    Exactly.

    Since every MP has to be eligible to be on the electoral roll themselves, they are all indirectly benefiting from whatever Parliament does.

    And they all face the technical prospect of a charge of conflict of interest in the deliberations of the Parliament.

    Everybody, take a deep breath! Relax!

  38. Barry 1963

    I can’t see any merit in Labor’s case. Waste of time and money.

  39. johanna

    It depends on how literally they take the word “indirect.” Taken to extremes, almost nobody would be eligible to be an MP, because just about every superannuation scheme has shares in commercial property, some of which would inevitably be rented to federal agencies.

    But Sinc’s wider point is a very good one. Lawfare is a lousy way to run a country.

  40. Sydney Boy

    Johanna +1

    EVERY politician currently in parliament would some indirect benefit. Like Sinc said, how indirect is indirect?

  41. gowest

    The high court has taken perverse delite in curtailing the voters will many times. It is time they were put up for election.

  42. Texas Jack

    Lyne would be hard for the ALP to win and there’s a view in the electorate that Oakeshott only ran in 2016 to scam electoral funding. Maybe there’s some popular local in Port Macquarie waiting in the wings but it’s a pretty safe Nats seat and the whole Oakeshott-takes-20-minutes-to-announce-he’s-backing-Gillard farrago still smarts. I doubt the Coalition has much to worry about over Gillespie.

  43. Herodotus

    There must be some instances where such things are quite ok. For example, when a member of the pollie family has a business placing unemployed in jobs, something that was once done exclusively by centrelink, but became more dispersed. A good earner, I hear.

  44. Penguinte

    Another contributor may already have covered this aspect but isn’t it a fact thay day actually received rental from the Government for the office space he owned and was using as an electiral office? The current situation is quite different in as much as Gillespie owned the complex and rented a space to Australia Post.

  45. ar

    “I doubt the ALP could win Lyne if a by-election was called; it would need a 10% swing.”

    Please please please can we see Oakeshott take another tilt

  46. Haidee

    For the most part, only poor people will suffer and die? I shouldn’t laugh.

    Yes, settle disputes in the Parliament or at the ballot box.

  47. Dr Faustus

    It depends on how literally they take the word “indirect.” Taken to extremes, almost nobody would be eligible to be an MP, because just about every superannuation scheme has shares in commercial property, some of which would inevitably be rented to federal agencies.

    The constitutional draftsmen anticipated this; s44 provides disqualification for a person who:

    has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;

    On the face of it, Dr Gillespie has a indirect pecuniary interest in “agreement with the Public Service of the Commonwealth” via his pecuniary interest in his tenant, who holds that agreement.

    Is there actual harm? Good question. Inevitable vengeance? Yes. Playing silly buggers? Certainly. Knock on ramifications. There better be.

    But there are two issues that should be important to everybody.

    1) Our elected representatives should be strictly observant of the all legal requirements placed on them – particularly in the pecuniary interests department. MHR’s getting away with playing fast and free with the system has already led us to unlimited whale watching – and a host of other insults.

    2) We should be urgently concerned that the High Court looks a the black letter of the issue and does not get into the ‘vibe’.

  48. johanna

    Dr Faustus – a superannuation fund is not an incorporated company. The fund’s trustee company is incorporated, but the members of the fund are not necessarily members of the trustee company in the conventional sense. For example, in union based funds the union can appoint up to half of the directors, (trustees) as opposed to all directors being elected by the membership.

    I daresay that there is plenty of scope for complicated legal argument on this point, but if renting a space to an AP franchisee is ruled to be an indirect benefit, the door is open for certain kinds of super funds to also be ruled as conferring indirect benefits outside the exclusion clauses.

  49. Squirrel

    Somewhere in Canberra, work will already be afoot on a bid for the 2028 Bulahdelah Olympics – just in case…..

  50. Rob MW

    It is going to be very interesting to watch the High Court either wriggle its way out of bringing down the government with a very nuanced argument or watch it actually bring down the government.

    Having watched the HCA for many years they will indeed twist their opinion(s) to resemble something like a pretzel rather than fix up an own goal and worse, fix up an injustice from lower courts. They seem to bend with the prevailing social wind, one only has to look at the disastrous Tasmanian Dam case in the pretext that a wide definition should be given to “External Affairs”, on the one hand and then on the other give a very narrow definition of “Just Terms”. What the Gov’t wouldn’t give in this day and age of AGW to have at their disposal another hydro electric scheme which the HCA with the help of the Hawk gov’t stopped. What comes around, goes around.

  51. .

    Squirrel
    #2436493, posted on July 9, 2017 at 5:04 pm
    Somewhere in Canberra, work will already be afoot on a bid for the 2028 Bulahdelah Olympics – just in case…..

    Absolute gold. I’d laugh but this country is probably unsalvagable.

  52. .

    HEY GRANNY!

    But I Paid Into The System

    Should have a transcript. Should be put up at all voting booths, in all democracies in every election.

  53. .

    Rob

    The High Court has gone through 7-8 ways of interpreting the constitution. Most are entirely garbage and either a way to be an “interstitial legislator” and legislate from the bench or roll over and get a tummy rub from the PM. Some of the worst cases of all were the Dams Case, the Engineer’s Case, Peter Spencer and Cole v Whitfield.

  54. Sure, trade is important, BUT – you have to have something to trade, made possible in this 21st century by the availability of cheap, reliable electricity.

  55. Rob MW

    Some of the worst cases of all were the Dams Case, the Engineer’s Case, Peter Spencer and Cole v Whitfield.

    Dot – not to mention probably the worst of all – Pye v Renshaw. P J Magennis Pty Ltd v Commonwealth should have, under any sort of common sense, halted Pye in its tracks. Pye brought forward the imbecile notion that the Commonwealth can in fact do indirectly was it is Constitutionally barred from doing directly.

  56. .

    I can quote case law saying that is flat wrong too – from Justice Starke.

    Jesus. How we’ve fallen.

  57. Rob MW

    Dot – is your email address still good ??

  58. .

    Yes. Thanks for sending anything though.

Comments are closed.