Senator the Hon Mathias Cormann

LEIGH SALES: The citizenship crisis in the Federal Parliament is continuing. The President of the Senate, Stephen Parry has now resigned after confirming he is a British citizen. He was aware for weeks that he might have had a problem, but chose to stay quiet until after the High Court made its ruling on seven other MPs last week. His bombshell revelation of his dual citizenship yesterday has renewed calls for an independent audit of the status of all federal politicians, something the major parties are resisting. Senator Mathias Cormann is a senior member of the Turnbull team, he is with me now from Perth. Thanks for being with us. 

MATHIAS CORMANN: Good to be here.

LEIGH SALES: For months, the major parties have been assuring us that they have checked everything, that there were no more problems, that an independent audit was not necessary. Senator Parry has blown that out of the water hasn’t he? 

MATHIAS CORMANN: Well, the situation with Senator Parry is very unsatisfactory. It would have been preferable if he had made the decision that he has ultimately made sooner, though it is good that he swiftly took responsibility and made the decision to resign once it became clear that he was in breach of the Constitution. Let me just make a couple of points. It is incumbent on every individual Member and Senator in the Australian Parliament to comply with the Constitution. It is incumbent on all of us in the Federal Parliament to ensure that we are satisfied, that we satisfy ourselves, that we are complying with the Constitution and if we become aware of information that we may or are likely to be or could be in breach, we need to take the appropriate steps. But there is only one authority in our country which ultimately can authoritatively and conclusively resolve these questions and that is the High Court.

LEIGH SALES: What you have described there though is basically a form of self-policing. Clearly, that system has not worked brilliantly, now that we see the emergence of Senator Parry. Why shouldn't we have an independent audit?

MATHIAS CORMANN: It is not just a system of self-policing, that is not quite right. Our Constitutional arrangements, our democracy is based on the very important principle of the separation of powers between the Executive, the Parliament and the Judiciary. Clearly, the Executive would be conflicted when it comes to assessing the eligibility of individual Members of Parliament. The Executive is accountable to the Parliament and the job under our Constitutional arrangements and our laws passed by the Parliament to adjudicate over the eligibility of Members of Parliament and compliance of Members of Parliament with the Constitution has been handed to the High Court. Any other process...interrupted. 

LEIGH SALES: Yes, but that is when it becomes a legal issue. What about at this point? Why not have an independent audit so you can establish for sure the status of all MPs.

MATHIAS CORMANN: Well it would not establish for sure the status of all MPs…interrupted.

LEIGH SALES: It would give you a fair idea.

MATHIAS CORMANN: It would not. Another important principle is that the burden of proof to establish any breach is on those alleging the breach. There is a process available now for Members of Parliament to be challenged in terms of their eligibility before the High Court. The High Court, sitting as the Court of Disputed Returns, over time has repeatedly heard cases where the eligibility of individual Members and Senators has been challenged in the past. They have dealt with the seven cases so far and will now deal with the case of former Senator Stephen Parry. 

LEIGH SALES: Former Liberal Senator Cory Bernardi says the major parties are running a protection racket. Why are you so scared of an audit?

MATHIAS CORMANN: It is not a matter of being scared at all. I am a Constitutional conservative and we are preserving the very important features of our Parliamentary democracy, of the Constitutional arrangements underpinning our democracy. I understand why people are superficially attracted to an audit, given the events of the last few months. I certainly can understand that. But we need to be very careful about the consequences that would come from this. In the context of actually wanting to ensure that people can have confidence in the Parliament and in the compliance of Members of Parliament with the Constitution, the most appropriate body to assess and adjudicate over any issues if and as they emerge is the High Court. To setup a separate ad hoc process will not lead to increased certainty, it would lead to less certainty. It would certainly lead to a lot of public discussion but it would not lead to a conclusive resolution. Only the High Court can deliver a conclusive resolution in relation to any such issues. 

LEIGH SALES: You say you have to be careful of the consequences. Is the main consequence you are worried about in reality the fact that if an MP in a marginal seat is exposed, that the Government could lose the seat in a by-election and then be in real trouble?

MATHIAS CORMANN: No, not at all. If any Member of Parliament, whatever the margin in their seat, has not complied with the Constitution, then there should be steps taken to have them referred to the High Court for the High Court to make relevant determinations. The problem is that if we were to run an ad hoc process, in terms of an audit, we cannot be satisfied, we cannot be confident that any advice or opinions that come out of that process would ultimately stand...interrupted 

LEIGH SALES: But also, sorry to interrupt, but you also cannot be confident currently that every MP in the Parliament is meeting the citizenship requirements?

MATHIAS CORMANN: Well we can be confident that whenever a problem has arisen, it has been swiftly referred to the High Court...interrupted.

LEIGH SALES: But how do we know that though? Senator Parry sat there quietly for a while.

MATHIAS CORMANN: Senator Parry should have acted sooner, there is no question about that. In the end, whether that is in relation to the eligibility of Members of Parliament and their compliance with the Constitution, whether it is in relation to other legal processes, the burden of proof here is on those alleging a breach. If there is a suspicion that someone is in breach and that person does not come forward themselves, there is the opportunity to pursue appropriate action through the High Court sitting as the Court of Disputed Returns. That is the appropriate way to handle this by the way. 

LEIGH SALES: Senator Cormann, good to have you on the Program. Thanks very much.

MATHIAS CORMANN: Always good to talk to you.