Senator the Hon Mathias Cormann

DAVID SPEERS: With me now is the Finance Minister Mathias Cormann, to talk about this as well as the same sex marriage postal survey. There are High Court challenges to that getting underway this week. Thanks for your time this afternoon Minister.

MATHIAS CORMANN: Good to be here.

DAVID SPEERS: First on this one, I do note that you said a couple of weeks ago, I don’t believe that Bill Shorten is a dual citizen. You were right.

MATHIAS CORMANN: I have been on the record, as you say, for some time. I agree with the statement that Bill Shorten has made in the Parliament today. We should draw a line in the sand. We should not go after each other the way this has been happening in recent weeks. We should let the High Court determine. We have got seven test cases now in relation to circumstances where people without their knowledge obtained citizenship by descent of another country. We should let the High Court determine what the appropriate interpretation is of section 44. Our advice is that neither Barnaby Joyce nor others in that circumstance on the Government’s side breach section 44 of the Constitution. Based on the advice we have received we believe they do not ... interrupted 

DAVID SPEERS: Okay, your view as you have just stated is that, sure Bill Shorten has done this. He’s clear. You don’t think other Labor MPs or Government MPs have to necessarily do the same? 

MATHIAS CORMANN: We are not in a position to stand in judgement of ourselves for starters. There is an interpretation that needs to be clarified. The only authority that can clarify the proper interpretation of section 44 is the High Court. There are seven cases in front of the High Court as we speak. I think the most appropriate thing for us right now is to let the High Court do its work. Depending on what comes out of that process and as I say, we are confident none of the Government Senators who have been referred are in breach of section 44. But depending on what comes out of that process, we can then determine as a Parliament what the appropriate next steps will be. 

DAVID SPEERS: But on this question of proving your innocence, I should remind people that you chose to put your own documents out there as well, to prove you don’t have an issue. Bill Shorten has chosen to put. But many are arguing that it shouldn’t be up to the individual. It should be a requirement. You have got to prove it. 

MATHIAS CORMANN: The way the process is meant to work, is that you are validly elected unless somebody is able to contest your eligibility through the High Court sitting as the Court of Disputed Returns. I think we should remind ourselves as to what the proper process under the Constitution actually is to validly challenge somebody’s eligibility to sit in the Parliament. None of us have the authority to make these judgements. The Parliament has not got the authority to make these judgements. The only authority in Australia who has that authority is the High Court. If there is a view in relation to somebody that they may have been invalidly elected to the Parliament, there is a process that can be pursued through the High Court. 

DAVID SPEERS: What about section 64 of the Constitution, which talks about no Minister of State shall hold office for a longer period than three months unless he is, or becomes a Member of Parliament. Could this raise and Labor has been targeting this issue today, if Barnaby Joyce and Fiona Nash are ruled ineligible could this put a question mark over decisions they have taken as Ministers?

MATHIAS CORMANN: We believe that you are getting ahead of yourself there. Firstly, as I have indicated, we are very confident that neither Fiona Nash nor Barnaby Joyce breach Section 44 based on the ... interrupted

DAVID SPEERS: Is there advice, is there any advice?

MATHIAS CORMANN: ... based on the advice that we have got. Unless and until the High Court decides otherwise, every Member of the House of Representatives and every Senator in the Senate are validly Members and Senators. So ... interrupted

DAVID SPEERS: Yes, but surely the Government, would as a prudent move be getting some legal advice on what might happen here? 

MATHIAS CORMANN: Again, look at the relevant Senate practice and the relevant House of Representatives practice, which is based on High Court decisions in the past. There has been precedent for Members and Senators who have in the past been found to have been invalidly elected. And ... interrupted 

DAVID SPEERS: And none of Parliament are fine. But decisions of Minister’s have not been tested in the High Court. 

MATHIAS CORMANN: Our proposition is this. Barnaby Joyce and Fiona Nash are validly Members of the House of Representatives and the Senate respectively ... interrupted 

DAVID SPEERS: But I am trying to establish, there is or there isn’t any legal advice on this.

MATHIAS CORMANN: I am not going to go to the content of legal advice to the Government. What I am saying to you, is that in our judgement and based on all of the past practice, they are validly Members of the House of Representatives and in the Senate, unless and until the High Court decides otherwise. As such, they are also eligible to be Ministers. 

DAVID SPEERS: Just before we leave citizenship, was it embarrassing for some to have pursued Bill Shorten as hard as they did. 

MATHIAS CORMANN: I am not going to provide commentary. I have made my views clear on the record. I never believed, I have got many issues in relation to Bill Shorten ... interrupted

DAVID SPEERS: You were right. You were right all along. 

MATHIAS CORMANN: I go as hard as anyone on Bill Shorten in relation to policy matters. I never believed that he was a dual citizen. It is good that he clarified it. 

DAVID SPEERS: Let me turn to the other High Court matter this week and that’s the same sex marriage postal survey. How confident are you about this actually going ahead? 

MATHIAS CORMANN: The Government believes that the arrangements that we have put in place to give Australians a say on whether or not the definition of marriage should be changed to allow same sex couples to marry is both Constitutional and legal and that the expenditure of up to $122 million for the purpose is appropriate expenditure.

DAVID SPEERS: Do you believe the various parties that are challenging the survey and that includes the independent MP Andrew Wilkie, the Greens Senator Janet Rice. Do they have the right to mount these challenges?

MATHIAS CORMANN: These are technical arguments that are being pursed in front of the High Court. 

DAVID SPEERS: What do you think?

MATHIAS CORMANN: I am not going to express a view while there is a matter before the High Court ... interrupted

DAVID SPEERS: Because the first question really is whether they have standing at court to challenge.

MATHIAS CORMANN: And that is a matter on which the Solicitor General is making representations on behalf of the Commonwealth ... interrupted

DAVID SPEERS: He’s arguing that they don’t.

MATHIAS CORMANN: I am not going to run a political argument on something that is currently before the High Court. That is a matter for the High Court to settle. 

DAVID SPEERS: Alright, whether MPs can challenge the spending of taxpayers’ money is the question.

MATHIAS CORMANN: MPs are of course are part of the processes of Parliament, where all of the decisions are made in relation to the $122 million that comes out of an appropriation by the Parliament, which was provisioned in the Appropriations Act 2017-18. 

DAVID SPEERS: The Senate bells are ringing Minister so I better let you. Do you need to run to the Senate? Can you squeeze in one more? What happens if the High Court does rule this invalid, the actual postal survey. What will the Government do?

MATHIAS CORMANN: We believe that what we have put in place is constitutionally valid and legal. But we will obviously cross that bridge if that scenario were to emerge. We do not believe it will. But if it does we will have to consider next steps at that point.

DAVID SPEERS: So you don’t rule out a parliamentary vote?

MATHIAS CORMANN: You are now asking me well and truly a very hypothetical question. I am not going to entertain a hypothetical question. If we came to that bridge, we would cross that bridge at that point in time. 

DAVID SPEERS: Okay, but nothing’s ruled out then?

MATHIAS CORMANN: You are asking me to comment in relation to something that we do not believe will happen, that has not happened. I cannot make judgements in relation to something that I have not got any information in front of me on. 

DAVID SPEERS: One of the challenges to this postal survey is to whether the spending is urgent because under the Appropriations Bill No. 1 that you were using to justify this, it says if the Finance Minister is satisfied there is an urgent need for expenditure. Why is this urgent? 

MATHIAS CORMANN: Because the policy decision that the Government has made is that we want a result by 15 November 2017, which means that this is now expenditure that is required in the 2017-18 financial year, which was not foreseen at the time when the Budget was put together and at the relevant time when the Appropriation Bills were finalised ... interrupted 

DAVID SPEERS: But why do you need to urgently need to give the answer this year. Why not just wait until next year’s budget?

MATHIAS CORMANN: Because we have made a policy decision that it is in the public interest as a Government, as we are entitled to do, the Government has made a policy decision that it is in the public interest for there to be an outcome of this statistical information collection exercise that it is in the public interest to have a result by 15 November 2017. That means ...interrupted 

DAVID SPEERS: It might be politically urgent.

MATHIAS CORMANN: This section is an appropriation that is made by the Parliament to me. It is a provision that Labor in six years used on 32 occasions …interrupted 

DAVID SPEERS: But it is only as they say in the Act, it is only if it is urgent, urgent.

MATHIAS CORMANN: I am explaining to you. This is a section that we believe relates to an appropriation by the Parliament to the Finance Minister for decisions to be made in the Finance Minister’s judgement as to whether something is unforeseen and urgent. I have made relevant judgements, which I believe to be legal and consistent with all of the …interrupted

DAVID SPEERS: And you think the High Court will reckon it is urgent? 

MATHIAS CORMANN: That is going to be a matter for the High Court. 

DAVID SPEERS: The ads that have already started on this, they are not subject to the usual rules around elections that prevent information that is deceptive or misleading. What is going to happen here? So the High Court, if they do give the all clear to the postal survey going ahead, what exactly will you do? 

MATHIAS CORMANN: You have to first clarify, under the Electoral Act, the provisions that prevent conduct that is deceptive or misleading are actually very narrowly defined. They relate to communications that would deceive or mislead somebody into filling the ballot paper out informally. In relation to the survey forms by the ABS, as we have said, there are not the same formality requirements as you have with ballot papers. There is not going to be the same risk in relation to that particular matter because if the intention of the respondent sending in a survey form is clear, it will be accepted as a valid response …interrupted

DAVID SPEERS: So that is an interesting point, so it does not go to the content of arguments made in these ads? 

MATHIAS CORMANN: If it went to the content of arguments made in ads, what would have happened with Labor’s Mediscare in the last election? This becomes part of the political process and part of the political freedom of speech. 

DAVID SPEERS: So, these rules will only go to ads that suggest you can fill in the survey a way that you actually can’t? 

MATHIAS CORMANN: No, there is a range of additional legal protections which we think would be sensible. Our preference always was to run this process under the electoral laws framework, like the authorisations requirements and the like, so that people can clearly see who is responsible for a particular ad. There are various other protections which we believe are sensible …interrupted

DAVID SPEERS: So presumably some of the ads that are out already, things like whether the boys will be allowed to wear dresses to school and what the scientific research shows on kids in same sex couples. All of that is fine?

MATHIAS CORMANN: In the end, people will form their own views as to whether they agree or they don’t agree. But expression of opinion in a political process is not something that is new. People have expressed opinions on either side of various debates in Australia in the context of a process like this before. 

DAVID SPEERS: Aright, so these arguments about kids and so on, they are all fine? 

MATHIAS CORMANN: In the end these are matters of opinion that are put forward by both sides of the argument as they see fit. We have said as a Government that we want campaigners on both sides of the debate to engage in this debate with courtesy and respect. But ultimately, whether it is an election or whether it is a survey conducted by the ABS as we have in front of us, there are certain limits to the limits you can place on freedom of speech. 

DAVID SPEERS: So just finally, you are an opponent of same sex marriage, although you have said you will respect the outcome of the survey. 

MATHIAS CORMANN: I have said that I would vote in favour of the current definition of marriage. That is right. 

DAVID SPEERS: Yes that is right. Why is that? Can you just tell us? I mean, is it the kids issue is it …interrupted

MATHIAS CORMANN: I am responsible for the process. I am not going to get myself involved in the public dissection of both sides of the argument. I will continue to ensure that the process is run with integrity and that all Australians have the opportunity to have their say. 

DAVID SPEERS: Alright Mathias Cormann, Finance Minister and Acting Special Minister of State, thank you for joining us this afternoon. 

MATHIAS CORMANN: Always good to talk to you.