Joyce pushes Phelps to show advice that she’s eligible for parliament

Barnaby Joyce has urged Kerryn Phelps to release legal advice showing her eligibility to sit in parliament.

Kerryn Phelps is expected to be confirmed as the independent MP for Malcolm Turnbull’s former seat of Wentworth shortly. Picture: Kym Smith

Former deputy prime minister Barnaby Joyce has urged Kerryn Phelps to “at the very least” release legal advice that she says clears her of any hurdles in section 44 of the Constitution, as she prepares to enter federal parliament and share the balance of power.

With Labor’s star candidate Brian Owler also refusing to publis­h legal advice he received regard­ing his work as a neuro­surgeon, Mr Joyce — who was disqualified in a dual-citizenship fiasco before reclaiming his seat — warned that there would be “zero sympathy” for any new MPs or candidates found to be ineligible.

Dr Phelps is expected to be confirmed as the independent MP for Malcolm Turnbull’s former seat of Wentworth shortly, but will not hand over advice from Sydney barrister Perry Herzfeld and Geoffrey Kennett SC, the constit­utional lawyer who cautioned that pharmacy owners could have an issue under section 44.

Constitutional lawyers Anne Twomey, from the University of Sydney, and George Williams, from the University of NSW, agreed that Dr Phelps’s job as a City of Sydney councillor and work as an unpaid university professor were unlikely to see her fall foul of the Constitution.

But they questioned whether, at the time of her nomination, the doctor had an agreement with the commonwealth through Medicare that could give rise to a direct or indirect pecuniary interest.

“That’s the outstanding question,” Professor Twomey said. “It may be that the Medicare system is purely statutory and no agreements with the public service are involved, in which case no disqualification issue would arise.

“It would become more doubtful, however, if there was an agreement concerning how Medicare funds were to be applied that was related to the grant of a Medicare provider number, and there was a private financial benefit in receiving those funds.”

The same question applied to Dr Owler, who was unveiled this week as Labor’s candidate for the Liberal-held seat of Bennelong in Sydney’s northwest.

Dr Owler will resign as a visiting medical officer with the Sydney Children’s Hospitals Network before he nominates for federal parliament and will carry out pro-bono work. It is understood he will still undertake some paid work.

Mr Joyce noted that he referred himself to the High Court after it was revealed he was a New Zealand citizen. “(Dr Phelps) has to at the very least table the advice as to why she believes she does not have to do the same,’’ he said.

“My advice came from the Solic­itor-General (Stephe­n Donaghue) and he was wrong,” Mr Joyce said. “If you’re confident in your advice, you would release it … Otherwise the questions will just continue and they’ll plague you through your political term.”

Doctors are in a grey area, as section 44(v) of the Constitution states any person who has a direct or indirect pecuniary interest in an agreement with the commonwealth cannot be a federal MP.

Dr Phelps was “confident on the basis of my own knowledge of the relevant laws and information available to me that I have no section 44 issue”. Dr Owler said he had received advice to ensure he was compliant with the Consti­tution before he nominated.