Today I am announcing my decision to fill the JLN Senate vacancy should the High Court find me eligible. And I’d also like to make public, written legal advice from the respected former Senate Clerk, Dr Rosemary Laing and former High Court Justice and President of the Court of Appeal, Michael Kirby, which indicates respectively, that my bid for the Senate is “legally sound” and that “Local Government was not part of the Crown.”
Obviously when it comes to parliament and the law, you can’t get two bigger heavy hitters than Dr Laing and Justice Michael Kirby.
After consulting with my family, I am comfortable with my decision to seek to fill the Senate vacancy, following Jacqui Lambie’s surprise resignation.
In the lead up to the 2016 double dissolution election, I took every reasonable action and acted diligently, to ensure that my candidacy didn’t breach the Australian Constitution. This included officially asking (through Senator Lambie’s office) for advice from Dr Laing on Section 44 (iv) of our Constitution.
Dr Laing’s letter of reply is unique, because she doesn’t just write generally about local government members and their eligibility to run for federal parliament, as you’ll see today Dr Laing specifically pulls apart the Tasmanian Local Government Act 1993 in relation to Section 44 (iv) of our Constitution or the, Office of Profit under the Crown – Clause. And in doing so Dr Laing makes some very strong supportive statements, which in summary claim that my position was, legally sound.
In part Dr Laing also writes:
· The key point is that payments to councillors are not in the gift of the executive government, such that it could be said that councillors are paid by the Crown. and…
· In my view, it is unlikely that the office of councillor, including the office of mayor, would be found to be an office of profit under the Crown within the meaning of section 44(iv) of the Constitution.
This is because councillors are elected by the electors, they are not appointed by the executive government, and payments made to them are determined by statutory entitlements in respect of their offices.
Dr Laing’s March 2016 opinion was reconfirmed when I recently wrote to the new Clerk of the Senate, Richard Pye. I understand that some respected legal experts have publicly said that my Senate eligibility is in a Grey area. I’d ask those people to read Dr Laing’s letter and once again consider retired justice Michael Kirby’s black and white views on the matter that he expressed in a 1997 report to the House of Representatives titled Aspects of section 44 of the Australian constitution, which simply reads: “Local Government was not part of the Crown.”
I have recently written to Prime Minister Turnbull and Opposition Leader Bill Shorten. They both have a copy of Dr. Laing’s advice. I look forward to speaking with them and finding out their opinions on the matter.
Never-the-less, given the extraordinary chain of legal and political events that have occurred and the number of Senators and lower house members who have been found to be ineligible, should the Government choose to refer my matter to the High Court for further consideration, I’m very comfortable with that course of action.
Parliament library studies last year indicated that at least 38 Mayors have been elected to the federal parliament and not one has been referred to the High Court for a breach of Section 44 of the Constitution.
If I have to be the local government test case to help solve a problem, which has been in the too hard basket for decades, then I welcome the government’s action.
Many Tasmanian local government members have been in contact with me and offered their support and encouragement. The bottom line is: we all would like this question definitively answered sooner rather than later.
As to Jacqui, Jacqui’s work in the Senate has been amazing. She has fought tirelessly for Tasmania and for all Tasmanians. Jacqui has battled her way through Canberra, cut through the nonsense and never took a backward step.
Jacqui gave a voice to those who are too often not heard. And has done it all with the trademark humour and honesty for which she is loved for all around Australia.
The JLN have candidates running and registered for the state election and Jacqui is giving me all the space I need as Jacqui is paying attention to the state candidates. However, Jacqui is on my speed dial and available should I need her.
Right now though, I look forward to the chance, if eligible, to pick up where Jacqui has left off, Putting Tasmania first.