Topics: Lidia Thorpe;
1135 AEST
24 October 2024
Dan Bourchier: Let’s get more now on the federal opposition seeking legal advice to determine if Senator Lidia Thorpe is eligible to remain in Parliament. The Shadow Foreign Minister, Senator Simon Birmingham, joins us now from Adelaide. Welcome to the program. What is the advice you’re seeking?
Simon Birmingham: Well, Dan, what Lidia Thorpe did in speaking with the ABC yesterday was to claim, to admit, that she had not fulfilled her constitutional obligations to make and subscribe the oath or affirmation in taking her seat in the Senate. That’s what section 42 of the Australian Constitution requires an individual to do, to make and subscribe the oath or affirmation of office to then be eligible to take their seat in the Senate. Lidia Thorpe yesterday clearly made the statement and the claims that in making the affirmation, she actually didn’t do so in accordance with the constitutional requirements as annexed in the Constitution. So, what we see now is a circumstance that creates a doubt over her eligibility and validity to have taken up her seat in the Senate, and that obviously requires some careful analysis and consideration.
Dan Bourchier: Anne Twomey addressed that point directly and said that the fact that Senator Thorpe had then signed the document, the written version, which of course says heirs rather than hairs, and that that was witnessed that that is the more important component of this. What do you say to that?
Simon Birmingham: Professor Anne Twomey’s advice and analysis is important to this. She’s one of Australia’s leading constitutional scholars. She’s also said that she believes there is something for the president of the Senate to look at here as to whether, in fact, the requirements have been fulfilled appropriately. I do come back to that point that the Constitution in section 42 requires a senator to both make the oath or affirmation and to subscribe it. The practice is that a senator does so verbally and then signs the test roll of the Senate in the way they undertake it. Lydia Thorpe seems to be trying to wear as some badge of honour her claim that she subverted that process and, in fact, that she didn’t make or take the affirmation of office. And that is her claim. It’s not one that I’m making up or seeking to create an issue around. She’s volunteered that information.
If you like, it’s analogous in parts of its approach to what happens in the House of Commons in the Westminster, where a number of members of Parliament there have been elected from Northern Ireland representing Sinn Féin, those individuals refused to make or take an oath or affirmation of loyalty to the British monarch. That’s their right to do so. But as a consequence of that, for many, many years those elected members of the House of Commons in the UK have on principle, therefore never actually taken up those seats in the House of Commons. Lidia Thorpe is not showing that type of principle. She wants to try to have it both ways and say, I didn’t actually take the affirmation properly, but I’m still going to sit in the Senate. Well, that’s not the intent, nor potentially the detail of our Constitution.
Dan Bourchier: And in terms of the options that you’re exploring, what are those?
Simon Birmingham: Dan, we obviously want to be guided by what is proper and constitutional. Upholding Australia’s constitution is important to ensure the integrity of the laws of our land. The operation and principle of the Senate. I think in addition to this constitutional question, there is an important practical and if you like diplomatic one that the Parliament needs to now explore. Lidia Thorpe’s actions aren’t the first green or, in her case, disaffected or thrown out Greens senator to cause disruption.
Dan Bourchier: Independent, I think she would describe herself as well.
Simon Birmingham: She can describe herself whatever she wants. She’s in the Senate because people voted Greens, and that should actually be a warning to Australian voters that if you vote Greens, you get this type of extreme senator. But there is also the fact that other Greens senators over the years have disrupted other proceedings with visiting guests and officials. US President George W Bush was heckled by Greens senators. Philippine President Marcos junior faced protest from Greens senators. This is creating a problem for diplomatically how governments of the day in Australia, be it a Labor government or a Coalition government, can have confidence to give the invitation to visiting guests to have the honour of addressing our Parliament without them facing a risk that it somehow becomes an embarrassment to do so, or a major issue in incident when they do so. That doesn’t help us as a country and how we engage with the rest of the world.
Dan Bourchier: Senator, by that equation, did the January 6th riots in the United States have an effect on chilling Australian politicians from visiting Congress?
Simon Birmingham: Well, the January 6th events were horrific events and appalling events in terms of the riots that were undertaken, and I condemn them at the time and many other Australians did. Now, they weren’t, though, targeted at visiting foreign officials. They were clearly an appalling, disruptive incident, an assault on democracy within the United States. And that’s a matter for the United States as to how they deal with it. The issue we’ve got here is that now, on multiple occasions, people who came to the parliament as Greens senators have used the occasion of a significant visiting guest to the parliament to disrupt that occasion. Now, if we want in the future to be able to use that for the advancement of Australia’s diplomatic interests with other countries, we should be able to do so without the fear and the risk that those senators will create an incident that casts embarrassment on our country and potentially upon that visiting guest. Which is not to say we silenced the freedom of speech to criticise at all. It’s about the respect of the Parliament. People can criticise me, visiting guests, anybody else. And in fact, as a senator, I, Lidia Thorpe, other Greens all have enormous rights and privileges for how we can undertake those criticisms and do so under parliamentary privilege. But it doesn’t mean that you create an incident that isn’t just disruptive or disrespectful, but also does create reputational risk for the Parliament and the country.
Dan Bourchier: Senator, if I can draw you back, what are the options that you’re exploring?
Simon Birmingham: I would hope that the presiding officers of the Parliament should already, frankly, be looking at this, the speaker and the president as to how the standing orders or the interpretation of the standing orders may well be able to be strengthened in terms of how we actually can respond. People have spoken a lot about censure motions in the last few days, and of course, that sends an important signal when a chamber of the Parliament censures another member of that chamber. But it doesn’t come with any practical consequence in terms of their ability to continue to sit in that chamber, whether there is any suspension to that ability, whether there are other impacts that have been considered in recent times for other conduct issues for parliamentarians around salary or those types of factors as well. So, there could be a number of things that ultimately presiding officers or procedure committees of the Parliament could and potentially should consider.
Dan Bourchier: Is this Potentially a matter for the Privileges Committee and for the mechanisms in the Parliament under privileges?
Simon Birmingham: Initially, in terms of the standing orders by which the chambers operate it is a matter more for what’s known as the Procedure Committee that provides advice to the Senate around those standing orders in terms of a matter of privilege that would be invoked and occur in a different setting. And particularly the challenge here is because Lidia Thorpe’s conduct was outside of the Senate chamber. It is not necessarily covered by those standing orders at present, and so doesn’t revert to the privileges committee. But it was clearly an official event of the Parliament conducted within the parliamentary precinct. And so, how that actually could be looked at in the future to try to create greater deterrence and to try to give greater confidence to potentially visiting guests in the future, that they’re not going to face embarrassment when the Australian Parliament has invited them to actually speak within our confines.
Dan Bourchier: And, Senator, I’m curious, outside of the nature that you described as disruptive and the some of the language, do you think the issues that the Senator was raising have validity to be discussed around treaty, around truth telling, around reparations or repatriation of remains as well?
Simon Birmingham: Dan, in our democracy, all of these things can be discussed and whether they are discussed by individuals and advocated by individuals in our Parliament is up to the voters. Many indigenous leaders I’ve seen in recent days have expressed their concern at the way Lidia Thorpe conducted herself. And I think it’s important to remind not just Australians, but also all those internationally who’ve followed these incidents that Lidia Thorpe’s conduct in no way should reflect upon the vast majority of indigenous leaders in Australia, who, I’ve always found, conduct themselves politely, thoughtfully, in an engaging way with me, whether they agree or disagree and with many others across our political divide.
Dan Bourchier: Certainly, a range of views, we’ll have to leave it there. Senator Simon Birmingham, thanks for your time.
Simon Birmingham: Thanks Dan, my pleasure.
[ENDS]