Legal arguments win the day in Newhouse nomination saga

In the last NSW parliamentary sitting week prior to the federal election NSW Upper House Liberals moved to have documents relating to questions about the validity of the nomination of Labor candidate for the federal seat of Wentworth, George Newhouse, made public.

The Greens MPs did not support the Liberal's motion for the release of these papers. We received significant support for our position, with many people contacting us and saying they were pleased that we did not get caught up in Liberal dirty tricks and allow parliamentary process to be misused to undermine legal rights.

However, we copped some criticism for our position with some people believing we had failed to fulfil  a commitment to greater transparency in public life.

As the Greens electoral spokesperson I handled many of the inquiries about this matter. All four Greens MPs voted against the Liberal's motion. We weighed up many aspects of this issue before coming to our decision.

My fellow Greens MPs and I are very passionate about transparency and accountability in government.

Newhouse's nomination came into question because as a member of the state Consumer Trader and Tenancy Tribunal, he was deemed to hold an office of profit under the Crown.

The Greens for many years have campaigned for change to the section of the Australian Constitution  that disqualifies hundreds of thousands of Australian public sector employees from running in federal elections. In fact when the Newhouse story first broke Senator Bob Brown put out a media release (see end of this blog) reiterating the Greens' call for the Australian constitution to be amended so people like Newhouse and some of our Greens candidates are not penalised by being forced to resign from their jobs.

When the Liberals motion came before the NSW Upper House Newhouse was on the ballot paper and the way the laws are written he would remain on the ballot paper no matter what. The only way a candidate leaves the ballot paper is if he or she dies. Under all other circumstances, the election goes ahead with the nominated candidates, even if strong evidence emerges that one of them is ineligible.

I strongly contended that the election should be decided on its merits and any legal issues regarding Newhouse's resignation from an office of profit and the eligibility of the nomination should be determined later when all sides of the debate and legal argument can be thoroughly presented and considered. 

The only body that could make a proper determination about the legitimacy of Newhouse's currently valid nomination is the court of disputed returns, and that can only be convened after the election.

I saw this motion, moved by the Liberals, as an attempt to prejudge the validity of the Newhouse
nomination, which had been accepted by the Australian Electoral Commission. On the facts that were known at the time, release of the letter of resignation could not resolve the matter and neither a  judge nor the media should make a determination on a selective part of the evidence.

All that would have happened would have been further publicity and speculation about the validity of the nomination, with the Liberals using it as a key campaigning tool.

Even if  the reportedly undated resignation letter was out of time, and it may not have been, there is another legal aspect to this case. NSW legislation covering Newhouse's employment on a government tribunal deems him to have resigned from his employment upon nominating for a
state or federal election.  That argument would make his nomination valid.

In deciding how to vote on the motion before the NSW Upper House this point was critical as no conclusion could have been reached on the arguments until after the election.

But Mr Newhouse lost the battle for Wentworth so it looks like we are denied a chance to test all this in the court of disputed returns.

In any event the alleged failure to resign is a very minor matter. It did not involve corruption. There were no victims of the alleged crime. There is no financial cost to the public purse. Thus there would have been no great public purpose advanced by the release of these papers.

Hopefully this sorry saga has given more impetus to the need to remove barriers to those who hold "offices of profit under the crown" from running in federal election.

And the Greens will continue to work for greater transparency and accountability in public life, but that needs to be balanced with a principle of not prejudging a matter on limited evidence and argument that only a court can determine.

----------------------

MEDIA RELEASE

POSTED ON WEDNESDAY, NOVEMBER 14TH

All Australians should be able to run for parliament - Brown

Greens Leader Bob Brown today called to end the discrimination that makes it hard for more than 5 million Australians to run for Parliament.

Senator Brown was responding to reports doubting the legitimacy of federal Labor candidate George Newhouse's nomination for Wentworth.

"In order to run for Parliament, more than 5 million Australians would either have to resign from their public sector jobs, rescind the dual citizenship the Howard government has been encouraging them to take out, or even disqualify themselves from receiving the aged pension or other welfare payments," Senator Brown said.

"Australia's democracy is diminished when millions of Australians are discouraged from running from parliament. In 2002 I moved legislation in the Senate for a referendum to amend the Constitution to allow all adult Australians to run for parliament."

"The proposal received in principle support from both Labor and the Coalition, but it is time that both Mr Howard and Mr Rudd committed to initiating a Constitutional referendum to the Australian public at the 2010 federal election."

"Nearly one third of all Australian voters are currently discouraged from running for parliament. Labor and the Coalition agree that there is a problem, but what is required is for them to implement a solution," Senator Brown said.

Further information: Ebony Bennett 0409 164 603