‘Send them all to the High Court’ Crossbenchers weigh mass referral of MPs

Crossbenchers Andrew Wilkie and Cathy McGowan may support a mass referral of MPs, including Peter Dutton, to the High Court.

Former Liberal, and now crossbencher, Julia Banks and Labor’s Anne Aly in parliament yesterday. Picture: Gary Ramage

Crossbenchers Andrew Wilkie and Cathy McGowan could support a mass referral of MPs — including Home Affairs Minister Peter Dutton — to the High Court, potentially giving the government enough numbers to test the eligibility of Labor and crossbench members under constitutional clouds.

Mr Wilkie, the Tasmanian MP for Denison, told The Australian he wanted to see all parliamentarians facing questions under section 44 of the Constitution referred to the High Court “in one lot”, after the government was thrown deeper into minority status with the defection of Victorian Liberal MP Julia Banks to the crossbench.

He refused to name the members he believed were in doubt but the Coalition is targeting Labor MPs Tony Zappia, Michael Freelander and Anne Aly and the new independent member for the seat of Wentworth, Kerryn Phelps.

“That would leave it to the High Court to be the sole arbiter and avoid a protracted tit-for-tat series of referrals that would consume the parliament for all of its remaining sitting weeks,” Mr Wilkie said.

Dr Phelps yesterday said she “won’t be intimidated” after Leader of the House Christopher Pyne warned that the government would “of course” attempt to refer her and Labor MPs if Mr ­Dutton’s election was sent to the High Court.

She has rejected requests to release legal advice from Sydney barristers Perry Herzfeld and Geoffrey Kennett SC she said cleared her of any constitutional breach, but was “very carefully” examining “evidence” in Mr Dutton’s case. His legal advice is on the public record.

Constitutional lawyers have questioned whether Dr Phelps at the time of her nomination had some kind of agreement with the commonwealth through Medicare that could give rise to a direct or indirect pecuniary interest.

“I’ve been looking at a range of legal advice on this (Mr Dutton’s situation) and I’ll be making my decision when this comes to ­parliament,” Dr Phelps said.

“It’s a very important decision to make because of the position (he) has as a minister and the decisions that (he) makes about deportations and other ­issues.

“If parliament were to decide I needed to be referred to the High Court, I would absolutely accept that and take whatever measures were needed to clarify whatever ­issues were outstanding.”

Ms McGowan said she would consider details of any proposed referral to the High Court but, like Mr Wilkie, did not say who other than Mr Dutton she believed could be in trouble. “Where there is doubt, it is important the situation is clarified,” the independent MP said.

Opposition Treasury spokesman Chris Bowen hit out at the government’s “act of low-rent desperation” in threatening to retaliate against any Dutton referral by attempting to send other MPs to the High Court, labelling it a “smear campaign against Kerryn Phelps and others”.

Manager of opposition business Tony Burke told the ABC: “It’s a desperate attempt from their dirt unit … so you just throw up someone’s name and suddenly you’ve got a (High Court) ­challenge?

“There probably won’t even be any (parliamentary) sitting days left by the time the High Court made its decision but we’re in a situation with Peter Dutton where because of the executive role that he holds in Home Affairs … the cases are already starting to turn up in the courts of people claiming significant decisions he made might not be legally backed up because of the doubts and his constitutional status. This is a serious concern.”