Interview on ABC Radio National Drive with Patricia Karvelas
Topics: Citizenship of Parliamentarians; Same-sex marriage

Patricia Karvelas: Simon Birmingham, Minister for Education, welcome back to RN Drive

Simon Birmingham: G’day Patricia, nice to be with you.

Patricia Karvelas: So how many MPs are you preparing to potentially lose, have you clearly done your own little check internally?

Simon Birmingham: Ah well none, Patricia would be the answer to that.

Patricia Karvelas: Well you said that a week ago about another person, who is now facing a by-election?

Simon Birmingham: And Patricia, that’s why of course across the Parliament we have championed and are pleased that there will now be a full disclosure undertaken, which will ensure that everybody regardless of their political party is treated equally, and when it comes to referrals to the High Court everybody regardless of their political party will also be treated equally even though Bill Shorten may have asked Malcolm Turnbull to essentially give Labor MPs a blank cheque. That they wouldn’t need referral unless the Labor party agreed. We will treat everybody consistently, fairly, equally through this process to bring it to an end. Because the Australian people don’t want to hear any more talk about politician’s citizenship.

Patricia Karvelas: You’re dead right, they’re pretty over it.

Simon Birmingham: They want to hear us all focused on the things that matter to them, their jobs, their livelihoods, their cost of living pressures.

Patricia Karvelas: So if there are Labor MPs which the Government suspects are dual citizens, but don’t disclose as such, or argue that they’re not, will you refer them to the High Court anyway, how does that work?

Simon Birmingham: Well yes, clearly if people present circumstances that leaves sufficient doubt about their compliance with the provisions of the Constitution then they will be referred to the High Court because that will then be the right place for those doubts to be addressed.

Patricia Karvelas: So we have an example already, Justine Keay, she’s spoken and said she did delay her renouncing, will you refer her because we know the circumstances there, I mean she’ll have to by before December 1st explain it all, but we know the circumstances does that, is that a clear cut referral for you?

Simon Birmingham: On the basis of what is available at present, it does look like it would be a matter that the High Court ought to consider because if you take a look at the judgment that was handed down recently when the High Court took its steps to clarify they were very precise about the significance of the closing date around nominations, and Justine Keay and Susan Lamb the Labor MP from Queensland as well appear to have been in breach of those provisions. The High Court has determined around the closing date of nominations. Now I think it is safe to say that the Government would have preferred that the High Court had not taken such a strict, literalist interpretation of the Constitution, but they did, that’s what they’ve said, and now everybody including the Labor party whether Bill Shorten likes it or not will have to live with it.

Patricia Karvelas: Ok, so when the High Court is basically deals with some extra MPs and they’ve been referred after December the 1st, what happens next, are you hoping that the High Court gives you more clarity around you know, the times of nominating, and renouncing, are you hoping that there is a further ruling that makes this well not as black letter as it is?

Simon Birmingham: Well I think the greater clarity the court gives under any hearing it undertakes, the better it is for the functioning of our democracy in the future, and that’s why we will still proceed to have the Joint Standing Committee on Electoral matters take a look at these issues as well because it would be a tragedy if there were Australians out there who thought they might like to offer themselves for public office but were scared away because of these circumstances. So we do need to make sure that the rules are as clearly understood as they can be, the advice and process that is applied by the Electoral Commission is as supportive of individuals as is possible, and all of that is really important to make sure that we aren’t disenfranchising Australians from being able to put their hand up to contest a party pre-selection to ultimately run for Parliament, because that as I would say would be a real tragedy for our democracy if we didn’t have that certainty and confidence for individuals.

Patricia Karvelas: If you’re just tuning in, this is RN Drive, I’m Patricia Karvelas with a croaky voice, and Simon Birmingham, is my guest, he is a frontbencher.

Simon Birmingham: You’ve only just started Patricia?

Patricia Karvelas: You know me, I’m always talking, Simon Birmingham, it’s hard, it’s hard. What is the expectation of those dual citizens that are uncovered by this process, especially if they’re Ministers, is it immediate resignation, is that the new benchmark now?

Simon Birmingham: Well Patricia, I guess in the case such as Stephen Parry or John Alexander, what those individuals have decided, is that upon examination of their circumstances, upon checking with the in those cases British High Commission, they’ve determined that their situations are clear cut enough, to that of Fiona Nash who the High Court had already heard upon and therefore they’ve taken the step to simply resign and those positions will go through an uncontested process I guess in being replaced, in John Alexander’s case, a by-election, which we hope and trust he will be successful in being re-elected as the Member for Bennelong. In Stephen Parry’s case the High Court will order a recount of the Tasmanian ballot. So people where they make a decision that it’s clear cut, I guess there is a precedent there for them to follow. People who dispute the circumstances well then that is of course where the High Court is the only body in the land who can provide an actual determination, that’s why having an independent audit of some people call for, or other types of processes is really quite pointless, what we’re doing, what Malcolm Turnbull has made happen, is that every member of Parliament will disclose all of the relevant facts and details, and then if it’s obvious that there is a doubt, the High Court as the right body can determine it from there.

Patricia Karvelas: Let’s move on to the issues of same-sex marriage. Liberal Senator James Patterson has really put out his alternative same-sex marriage Bill drawn up by conservatives. Malcolm Turnbull has now since said in a press conference that he supports Dean Smith’s proposal as a good Bill to start with, and you’ve said something similar, but I want to know about the to start with here, he describes it as first draft. What’s the second draft going to look like?

Simon Birmingham: Well Patricia, that is matter for normal parliamentary process, so there is of course a questions as to yes what Bill does the Parliament decide to debate, and I have said very clearly as has the Prime Minister, that Dean Smith’s which was developed out of quite an exhaustive process involving a Senate Committee inquiry, based upon an exposure draft that the Attorney-General had previously released is a logical starting point for the Parliament to consider. Now then in what will be a free vote scenario across the Parliament, it will be for individuals Members and Senators to determine whether any amendments to that Bill are made or not, and people can put forward amendments such as those that are in James Patterson’s Bill. The Greens may put forward amendments that seek to go in a different direction, who knows in terms of what will come forward during the debate, each of them will need to be considered on their merits

Patricia Karvelas: You expect to vote as just as a Senator, not to be bound, I know some conservatives hope to take to the alternative bill and say that should be the starting point, that the Dean Smith Bill shouldn’t be the starting point?

Simon Birmingham: Ever since the idea of a plebiscite or free vote scenario, sorry, a plebiscite or postal vote scenario has ended up being, we’re entertained, it is always being on the basis that should there be a yes vote, the Government would facilitate debate in relation to same-sex marriage but it would be a non-binding free-vote across the Parliament in terms of the details of that and what ultimately passes. So I fully expect that will the case. That we will get a debate commenced not long after the result is known, that hopefully that will proceed in an orderly manner through the Parliament. There is no reason why it cannot be done within the sitting weeks that are available this year, so well and truly done before Christmas. I expect it will commence with Dean Smith’s Bill as the logical starting point whether or not any amendments are successful, well we have to see what amendments people bring to the parliament and we will consider them.

Patricia Karvelas: Well we know some of them. Let me help you out. Should people have the right to refuse services or products to same-sex weddings, would you vote yes too that amendment?

Simon Birmingham: No look, my view there is that if you hang your shingle out as a commercial business seeking to make a profit that we already have in place very clear anti-discrimination laws that say you can’t turn customers away on the basis of their gender, or their race, or other factors, and indeed at present that would already extend to not turning customers away on the basis of their sexuality. And that we should not be changing that aspect of the operation of those laws.

Patricia Karvelas: The Patterson Bill also gives a provision for parents and you’re the Education Minister, so I’m really fascinated to hear what you think here? To remove their kids from schools if they don’t agree with the teachings on marriage on religious grounds, should that be included in the Bill?

Simon Birmingham: Well I think there are a couple of things to look at there and I haven’t had a chance since it was released this morning, a full diary today, to look at the details of Senator Patterson’s Bill but in terms of the principle of that. Firstly, I’d say that in terms of contentious areas of curriculum and teaching, such as sex education, such as religious instruction and the like. I think that parents should be made fully aware of the content and structure of those lessons and that it is not unreasonable for there to be options where they conflict with the values or religious beliefs of parents for them to opt out of that, however there is a further issue here to consider which is the extent to which the Federal Parliament, which does not operate the nation’s schools, actually has the scope and constitutional power to be able to legislate in that regard versus it rightly being a matter for the states and territories in terms of the operations of their school systems, to make sure that they are providing parents with fully informed options in relation to work controversial areas.

Patricia Karvelas: Ok, so you don’t think it should be enshrined in the Bill?

Simon Birmingham: Well as I said, I will have a look at what is proposed in detail in any amendment that comes forward and consider that. But I don’t think one of the aspects we ought to consider is indeed, the constitutional standing of any such amendment.

Patricia Karvelas: So you think that that amendment might be unconstitutional?

Simon Birmingham: Patricia, as I say I haven’t seen it.

Patricia Karvelas: That’s what you just said though.

Simon Birmingham: No, no I think.

Patricia Karvelas: I’m trying to interpret for my listeners.

Simon Birmingham: Indeed, indeed, I think the principle of the Federal Parliament trying to legislate exactly how the curriculum is delivered in our schools could well struggle to pass the constitutional test, may well be subject to challenge by the states if we were to go down that avenue. We have a national curriculum but it’s a national curriculum by virtue of agreement with the states and territories about that national curriculum, not by that form of legislation that directly opposes the national curriculum.

Patricia Karvelas: Just finally, Fraser Anning was sworn in as a One Nation Senator this morning, but well he was out of the party in a matter of hours, first day, that’s quite extraordinary, but that’s Canberra, that’s one more set of negotiations in the Senate for you isn’t it, doesn’t it make the Government’s job harder?

Simon Birmingham: Well yes in the sense that across the Senate there is now another individual to discuss and negotiate with, that is an extra bit of work that each of us as Government Minister’s will have to undertake to brief and to discuss and to get the support of Senator Anning, I guess as Queenslanders are going to the polls as present, it should also be cause for them to pause and reflect given of course if you go way back to 1998 or thereabouts, when Pauline Hanson first had a surge in electoral popularity and retuned a whole bunch of MPs to the Queensland Parliament only for them to fall apart in different disparate groups over the ensuing term of office and for the party to collapse, this is a reminder of how quickly people in parties like that can decide to desert the party, sit in some other sort of form and not necessarily give people what they thought they voted for.

Patricia Karvelas: Can I thank you for coming on the show, I hope you have a good week in the Senate.

Simon Birmingham: Thank you Patricia, I’m sure we will.

Patricia Karvelas: Oh, it’s so fun in the Senate.