Senator the Hon Mathias Cormann

FRAN KELLY: As we heard on AM, uncertainty surrounds the numbers in the Senate following the shock revelation that Bob Day’s election to Parliament may have been invalid. This was the big news that broke late yesterday. The Turnbull Government is now claiming that the Senator had a pecuniary interest in a contract with the Commonwealth, which means he may have breached Section 44 of the Constitution. The Government is referring this matter to the High Court, which could order a recount of the South Australian Senate results. Mathias Cormann is the Finance Minister and Deputy Leader of the Government in the Senate, he joins us in our Parliament House studios. Minister, welcome back to breakfast.

MATHIAS CORMANN: Good morning. Good to be back.

FRAN KELLY: Bob Day denies any pecuniary interest quote exists or has existed in other words he says he never received any rent from the Commonwealth. So why are you seeking a High Court ruling on whether he is in breach of the Constitution, which would ultimately make his election invalid?

MATHIAS CORMANN: It is true that Senator Day has not received rent from the Commonwealth. However, last Thursday the Government did receive very clear legal advice from an eminent independent expert. That advice certainly put to the Government that there was a Section 44 issue here in relation to a potential indirect pecuniary interest. We provided that advice to the President of the Senate the next morning. When Senator Day announced his resignation yesterday certain statements were made by the President of the Senate, which then led to the Government confirming our intended course of action when the Senate resumes next week, which is to initiate a referral of this question to the High Court. Ultimately, the only authority in Australia that can determine whether or not there was an indirect pecuniary interest in breach of relevant provisions in the Constitution is the High Court sitting as the Court of Disputed Returns.

FRAN KELLY: Can we nail down this timeline a bit because the Attorney General George Brandis only announced the referral to the High Court yesterday after Bob Day announced his resignation. But is has been reported that the Special Minister of State, Scott Ryan terminated the lease on Bob Day’s office back on the 7^th of October after being advised that it could be in breach of Section 44 of the Constitution. If that is true, why have you taken so long to refer his position to the High Court.

MATHIAS CORMANN: Some information came before the Government and the Government sought advice. The initial advice raised a series of questions, which led the Government to decide to seek a formal opinion from an eminent independent counsel. That advice was received last Thursday, as I say, last Thursday late afternoon. The next morning it was provided to the President of the Senate. The reason it was provided to the President of the Senate is because under relevant provisions in the Commonwealth Electoral Act, it is up to Senate or the House of Representatives to refer questions in relation to the qualifications of any of its Members to the High Court. It may do so under Section 376 of the Commonwealth Electoral Act.

FRAN KELLY: Labor Leader in the Senate Penny Wong said on AM this morning, if the Attorney General knew there were concerns about the Senator’s election, he should have done something about it before now and certainly since the date of October the 7^th as we said when the Special Minister of State, Scott Ryan terminated the lease after being advised it could be in breach of Section 44. The Government has accepted Bob Day’s votes on legislation including on the Country Fire Authority Bill. Should you have done that if you knew there was a cloud over his position?

MATHIAS CORMANN: We did not know, we had a ...interrupted

FRAN KELLY: Well he was advised it could be in breach of Section 44 of the Constitution.

MATHIAS CORMANN: It is not up to the Government to determine the eligibility of individual Senators. Ultimately that is a matter for the High Court. What the Government did was seek independent expert legal opinion, which we received last Thursday. On having received that independent expert legal opinion confirming that there was a potential indirect pecuniary interest in relation to an agreement with the Commonwealth, the Government the next morning provided that opinion to the President of the Senate. It was a matter for the President of the Senate to determine the next steps. As it has been made public, the Government, when the Senate returns on the 7^th of November, intends to initiate a formal referral to the High Court of this question under Section 376 of the Commonwealth Electoral Act. It is important to remember that even to this point that this is not a settled question. The Government is not in a position to settle this question. The Opposition is not in a position to settle this question. The only authority in Australia which is in a position to settle this question is the High Court itself, which is why we intend to propose to the Senate to refer this matter when the Senate next meets.

FRAN KELLY: The former Solicitor General Justin Gleeson revealed on the 14th October that the previous day the Attorney General had sought urgent advice on the composition of the Senate. Was that about Bob Day on this matter?

MATHIAS CORMANN: No it was not.

FRAN KELLY: Bob Day has given us a statement this morning. He is now calling on all Senators and MPs to immediately disclose any financial interest in any property or company that has a contract, lease or agreement of any kind with the Commonwealth. That includes defence housing or loans to or from companies that do business with the Commonwealth. Do you know for certain that no other MPs or Senators might have a similar pecuniary interest in the Commonwealth? Is this going to take the lid of something here?

MATHIAS CORMANN: What I know for certain is that all of us in the Federal Parliament need to comply with the provisions in the Constitution including and in particular the provisions in relation to our eligibility to stand for election and the qualification to be a Member either of the House of Representatives or of the Senate. If anybody else were to be in such a position, the law and the Constitution would apply in the precise same way.

FRAN KELLY: Bob Day was usually sympathetic to the Government in the Senate. I think he voted with the government 9 out of 10 times. You will have some important bills before the Chamber next week, particularly the ABCC and the toughening of the ban on asylum seekers, refugees ever being able to come back to Australia if they have been processed offshore. Will you still be putting these matters to the vote next week?

MATHIAS CORMANN: We do have a full program implementing our plan for the economy and more jobs. Implementing our program to ensure that Australia is safe and secure and that we deal with the legacy issue that we have inherited from Labor when it comes to all of the illegal arrivals that arrived at that time ...interrupted.

FRAN KELLY: So are you going to go ahead with that legislative program?

MATHIAS CORMANN: We will continue to work with all Senators to ensure that our policies are legislated to the extent that they need to be legislated.

FRAN KELLY: So will you introduce these bills next week to vote?

MATHIAS CORMANN: There are three sitting weeks coming up between now and the end of the year. We have got a full program. All of the matters you have raised are part of our program. We will continue to work our way through them one by one.

FRAN KELLY: Minister you refer to the High Court when the Senate resumes. It is up to the high Court sitting as the Court of Disputed Returns then to consider this whole matter. If it rules that Bob Day’s election was invalid what process do you believe should be followed to fill the vacancy? Would a recount of the votes for the South Australian election be in order?

MATHIAS CORMANN: I am not going to get ahead of myself here. None of us should get ahead of ourselves. These are matters now for the High Court to consider. Once the Senate has referred the matter to the High Court, the High Court is able to determine what should happen from here. What is important is that the people of South Australia receive appropriate and proper representation consistent with the will of the people at the last election. There is a whole range of complex issues to be worked through. The High Court is the right body to do so. We will work with whatever comes out of that process

FRAN KELLY: It is quarter to eight on breakfast, our guest is Senator Mathias Cormann. He is the Deputy Leader of the Government in the Senate and Australia’s Finance Minister. Minister Tony Abbott has made it pretty crystal clear via a third party in a newspaper this week that he wants a job in Cabinet. In particular he would like indigenous affairs, is he going to get his wish?

MATHIAS CORMANN: Firstly, the composition of the cabinet is entirely a matter for the Prime Minister...interrupted.

FRAN KELLY: Should there be room for Tony Abbott?

MATHIAS CORMANN: Secondly there is no vacancy in the indigenous affairs portfolio. Finally, what I have heard Tony Abbott say in recent weeks and months is that he is happy to be the Member for Warringah, wants to do the best job he can as the Member for Warringah and is not seeking a return to Cabinet.

FRAN KELLY: I do not know if you read it, but how I read it was there was an implied threat in that, in his push for a seat at the Cabinet table. Basically bring me into the Cabinet or I will continue to speak out and we will have outbreaks I suppose. Like that very public spat with the Prime Minister over gun control. Did you see it that way?

MATHIAS CORMANN: I am sure that that is not the case. I am sure that there would not be such a threat at all.

FRAN KELLY: Mathias Cormann, thank you very much for joining us.

MATHIAS CORMANN: Always good to talk to you.