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‘Grubby Deal’ Protects Criminal, Bankrupt MPs Being Kicked Out Of Parliament

Exclusive: Labor and Coalition politicians stitched up a deal to protect themselves from being kicked out of Parliament.

In April, in the dying hours of the last Parliament, with the Federal Budget being debated and the election about to be called, Labor and Coalition politicians got the deal done.

Labor senator Deb O’Neill said the elimination of 15 MPs and Senators over citizenship issues had “plagued this Parliament and this democracy.”

But the solution agreed with the Coalition essentially sidelines the High Court, not just on citizenship but on every other Constitutional ground for politicians to be disqualified.

“Basically it’s another grubby deal between the Government and the Opposition to protect their own in the Parliament,” independent MP Andrew Wilkie told 10 News First.

Then-Labor leader Bill Shorten and Prime Minister Scott Morrison in parliament. Photo: AAP

Section 44 and 45 of the Constitution disqualify people from Parliament on a range of grounds, including foreign citizenship, being bankrupt, having pecuniary interests involving Commonwealth funds and being a criminal subject to up to a year in jail.

The changes, snuck through on April 3 and 4, effectively prevent any shrewd politician from being thrown out on those grounds.

READ MORE: Morrison Kept 'In The Loop' As Dutton Moves To Avoid A High Court Challenge

No longer can Parliament directly refer ineligible MPs and Senators to the High Court for judgement. They must now be referred to the House of Representatives’ Privileges Committee or the Senate equivalent.

Even if these committees confirm suspicions a politician has breached the constitution, they can only be sent to the High Court on the basis of “facts not (already) disclosed” by the politician involved.

Without a High Court judgement, the suspect politician can remain in Parliament.

High Court of Australia, in Canberra. Photo: Getty

“I think that’s a very significant development in this country when parliamentarians think they can sideline the High Court,” Wilkie said.

“It’s more likely we’ll have people sitting in Parliament who are not entitled to be there,” added UNSW Constitutional law professor George Williams.

“There won’t be a route to get them into the High Court.”

READ MORE: Anti-Semitism Claims Disrupt Potential Frydenberg Section 44 Challenge

Candidates are now required to file a declaration with the Australian Electoral Commission affirming that they are eligible to enter Parliament. Under law, the AEC is not allowed to judge whether those declarations are truthful or sufficient.

If the candidate is elected, within 28 days of taking the oath of office they have to affirm or update their candidate statement. If they feel at any time those statements “can no longer be regarded as accurate” they have 28 days to change them. By doing that, they have satisfied the requirements of disclosure.

Photo: Getty

So consider this: a Senator in a mood of drunken violence assaults his domestic partner. The crime is so bad, it could carry a jail term of one year or more. He admits his guilt and awaits his fate. In the past, that would be grounds for referral to the High Court and expulsion from the Parliament.

Under the new rules, so long as he quickly discloses the criminal behaviour, Parliament is not able to refer him to the High Court. It can’t shift him.

There are other potential examples.

A politician’s personal business investments go sour and creditors send him into bankruptcy. As long as the politician is quick to disclose it, he can’t be shifted even though the constitution bans bankrupts from sitting in Parliament.

Another politician organises for her family company to do business with the Commonwealth. She immediately discloses it, thereby protecting herself from facing the High Court, despite the Constitution forbidding “any pecuniary interest in any agreement with the public service of the Commonwealth.”

Parliament House in Canberra. Photo: Getty

“All they’ve got to do is declare something and simply by doing that, that then prevents the Parliament from referring them to the High Court,” Wilkie said. He claims that’s no oversight or accident.

“I don’t think that’s an unintended consequence of the motion. I think this is by design.”

READ MORE: Malcolm Roberts Successfully Sued For Being A Dual Citizen In Parliament

Professor Williams says the new rules breach a fundamental duty.

“Parliament should be doing everything it can to make sure people are properly entitled to be in those chambers,” he said.

The Minister responsible, Mathias Cormann, has told 10 News First that “timely disclosure will under no circumstances immunise a potentially disqualified parliamentarian from being referred [to the High Court]. This is a total misreading of the relevant resolutions."

“If a person becomes bankrupt, or is convicted of a relevant crime, or comes under any of the other disqualifying factors listed in the Constitution, no amount of disclosure, however timely, would prevent either House from referring that Parliamentarian to the High Court."

But that’s not what the new rules say. You can read them here and here.

See the full story on Wednesday evening from 5pm on 10 News First.