Ms MARTIN - 2000-10-12
Yesterday in this House I pointed out that by speaking in the House on the matter that affected the payroll tax arrangements of his company’s ongoing contract with the Department of Mines, the member for Nightcliff had breached the Self-Government Act and should be disqualified.
Chief Minister, you have now had 24 hours to seek advice on this matter. Will you please inform the House what you intend to do?
ANSWER
Mr Speaker, yes, I have considered the matter. I said I would act decisively, I take the opportunity to inform the House of my decisions and you will see in my reply another attempt by the Leader of the Opposition to mislead the House and Territorians.
Before I begin my comments it is worth noting the comments of a prominent ex-member of this Assembly, Mr Parish an ex-Labor MLA. I have a wealth of advice, I offer Mr Parish’s advice in the first instance. He said today: ‘The Territory legislation, provision section 21, unlike the Commonwealth one, does not provide for disqualification of a member who has a contract of profit with the Crown’.
Mr Stirling: This is the Northern Territory’s leading constitutional expert is it?
Mr SPEAKER: Order!
Mr BURKE: Again, I would simply say to Territorians, it is the member for Nhulunbuy interjecting, and I apologise that he is trying to drown out my comments.
Mr Parish went on: ‘The Commonwealth one does, although there has only ever been one case on it but, presumably, in response to the problems that arise from that, the Self-Government Act was drafted’, this is interesting, ‘the Self-Government Act was drafted so that it does not provide for disqualification’.
If one reads the Constitution it is very explicit. The Self-Government Act essentially leaves the issue in the hands of the parliament. What it says is that a person who does have a contract with the Crown shall not speak or vote in a debate on that issue. It does not provide for any particular consequences if you don’t. It simply provides that the matter gets dealt with by the Legislative Assembly. Now one would have thought that in the circumstances where you have a person, who is a back-bencher who is about to retire, where there is no conceivable bias, I would have thought for him to be influenced in his conduct of his duties as a member of the parliament is difficult. I would expect the Legislative Assembly would probably deal with it very quickly and would have thought very properly and come to the conclusion that it ought to take no further action. I offer that simply as Mr Parish’s point of view.
This is my point of view. First of all, in her allegations, the Leader of the Opposition quoted to the parliament clause 21(3) and then proceeded to interpret it for us: ‘In simple terms that means if an MLA has a contract with government and speaks in the Assembly on a matter that relates to that contract they have broken the law. The penalty is disqualification from being a member of this Chamber’. In simple terms, or even complicated terms, it does not mean that at all. For starters, subsection (3) does not cover every contract with the government. If it did cover every contract with the government, obviously the member for Nhulunbuy and the member for Arafura living in Housing Commission homes, would be interpreted as a contract with the government. They have spoken in this Assembly on that issue and therefore should be disqualified if that was the case. Perhaps it should cover those particular situations.
Secondly, subsection (3) cannot be read without reference to subsection (4), which the Leader of the Opposition either failed to notice, or decided to ignore. Subsection 4 reads: ‘Any question concerning the application of subsection (3) shall be decided by the Legislative Assembly, and a contravention of that subsection does not affect the validity of anything done by the Legislative Assembly’. So the matter is not, as the opposition charges one for me, as Chief Minister to uphold the law. It is a matter for this parliament to decide.
Thirdly, I am not sure how the opposition leader …
Ms Martin: Put a motion.
Mr BURKE: The Leader of the Opposition says put a motion. I simply say to her that that ability is open to any member of this House. I am explaining why I will not be putting a motion. I am not sure how the opposition leader has arrived at the conclusion that the penalty is disqualification. I see no mention of the word in either subsection (3) or subsection (4). In contrast, the earlier subsections of clause 21 make it quite clear. Subsection (1) states ...
Mr Stirling: Okay. So ...
Ms Martin interjecting.
Mr SPEAKER: Order! Both the Leader of the Opposition and the member for Nhulunbuy please refrain from comment. Let’s hear the answer.
Mr BURKE: It is important to note, for Territorians, that the allegation made in this Chamber by the Leader of the Opposition would lead, in her opinion, to the disqualification of one of the members of this House, and they do not even have the courtesy to listen to the answer on such a serious matter.
I go on: In contrast, if one reads the Self-Government Act, the earlier subsections of clause 21 make it quite clear. Subsection (1) states quite bluntly: ‘A person is not qualified to be a candidate if etc’. Similarly, subsection (2) begins: ‘A member of the Legislative Assembly vacates his office if…’ and it goes on. Subsection (3), the area of the allegation, makes no such admonition. It says simply:
A member of the Legislative Assembly who is a party to, or has a direct or indirect interest in, a contract made by or on behalf of the Territory under which goods or services are to be supplied to the Territory shall not take part in the discussion of a matter, or vote on a question, in the Legislative Assembly where the matter or question relates directly or indirectly to that contract.
And for any penalty or action it refers the reader to subsection (4).
It would appear that the drafters of the Self-Government Act recognised that members of parliament would face such conflicts of interest. In their wisdom they obviously decided that such conflicts should not disqualify a member, but rather just restrict the activities of the MLA in the parliament wherever such conflict arose. The drafters chose to impose a restriction that the parliament itself, this Assembly, could administer. That is the obvious intent when you read subsections (3) and (4), rather than be blinded by the need to get a headline and only read a section that agrees with your spin on events.
So, now, that is the background. Let’s turn to the particular matter that the opposition leader raised: The fact that the member for Nightcliff spoke in a particular debate.
If we return to the debate on 15 June this year and we look at the comments of the Leader of the Opposition during that debate, we find that during her speech, and remember she is speaking now before the member for Nightcliff gets to his feet, during her speech she says: ‘I note that the amendment schedule number 76 has been circulated by Mr Hatton. It is an attempt to change that amendment. It will interesting to hear the member speak to this amendment’. A few seconds along she repeats her invitation: ‘I am interested to hear the mover [that is, the member for Nightcliff] of the amendment talk to it’.
Twice the Leader of the Opposition urged the member for Nightcliff to speak. Let’s be clear about this. Nobody on either side ...
Ms Martin: I wanted him to explain what his amendment was, you great idiot. Goodness, this is a parliamentary Chamber ...
Mr SPEAKER: Order!
Mr BURKE: Let’s be very clear on this, nobody on either side of the House was in any doubt that the member for Nightcliff faced a conflict of interest in this matter. We all knew of the conflict, yet the opposition leader urged and encouraged him ...
Members interjecting.
Mr SPEAKER: Order! Order!
Mr BURKE: ... urged and encouraged him to speak. Perhaps she was playing agent provocateur. Perhaps she was the black widow spider - talk about four months for the trap to close, but perhaps we could stretch the bow and suggest that that was her ...
Mr Stirling: You have justified it. Sit down.
Mr BURKE: However, back on 15 June ...
Ms Martin interjecting.
Mr Stirling interjecting.
Mr SPEAKER: Order! Once again, both the Leader of the Opposition and the member for Nhulunbuy are over the top.
Mr BURKE: Back on 15 June, no sooner had the opposition leader resumed her seat than the member for Nightcliff accepted her invitation to stand and speak. This is a very serious allegation. He accepted her invitation to stand and speak. He started his remarks ...
Mr Stirling: It was his amendment, who else was going to speak to it if he didn’t? I didn’t see any of these blokes stand up to speak for it.
Mr SPEAKER: Order! Would the member for Nhulunbuy like to spend an hour out?
Mr BURKE: He started his remarks in this way. He said: ‘Mr Speaker, I intend to speak on this bill but I must declare an interest in respect to this payroll tax legislation and I advise that I will not be participating in any vote that takes place. Members are aware,’ the member for Nightcliff continued, ‘that the comments will be made in the context of my family business, which is directly and specifically affected by the legislation and the comments should be taken in that light’.
That was on any interpretation a completely upfront explanation of the situation. No one from this side of the House jumped up and objected, no one from the opposition side jumped up to withdraw the leader’s invitation for the member for Nightcliff to speak. By these actions, the Legislative Assembly had decided that the member for Nightcliff could speak, thus exercising his right under subsection (4) to deal with matters under subsection (3) of the Self-Government Act.
To reinforce that acceptance, the Deputy Leader of the Opposition was inspired to rush into the parliament after the member for Nightcliff had finished his remarks. The member for Nhulunbuy acknowledged – as he put it – the absolutely astounding amendment and contribution of the member for Nightcliff and the conflict of interest, but he raised no objection to the member having made his speech.
Again, a tacit exercise of the right of this Assembly under subsection (4) to deal with subsection (3) of the Self-Government Act. For the opposition now to turn up four months later and start claiming some sort of outrage in the outing of the member for Nightcliff is pretty typical of the hypocrisy they continually practice. If it was a breach of the Self-Government Act for the member for Nightcliff to speak on this issue, then why did the opposition urge him to comment during the debate.
We all know that any conflict arises because of his association with his company, SP & C Hatton Pty Ltd trading as Best Practice Skills - we all knew that conflict existed back on June 15; we all decided to allow him to speak. It should be recorded that the member for Nightcliff made one further contribution to the debate that night when he withdrew his amendments because he said…
Mr Stirling: Why did he withdraw it?
Mr SPEAKER: The member for Nhulunbuy!
Mr BURKE: He not only did not vote, he withdrew his amendments because to quote the member for Nightcliff, ‘His amendments were going nowhere’, and this allegation is going in the same way, nowhere.
I will add and reinforce the fact that the offer is open to any member of this House to raise a motion to ask the House to deal with. It is not an issue primarily for the Chief Minister. That is simply my point of view, this is a scurrilous allegation and should go nowhere.
Chief Minister, you have now had 24 hours to seek advice on this matter. Will you please inform the House what you intend to do?
ANSWER
Mr Speaker, yes, I have considered the matter. I said I would act decisively, I take the opportunity to inform the House of my decisions and you will see in my reply another attempt by the Leader of the Opposition to mislead the House and Territorians.
Before I begin my comments it is worth noting the comments of a prominent ex-member of this Assembly, Mr Parish an ex-Labor MLA. I have a wealth of advice, I offer Mr Parish’s advice in the first instance. He said today: ‘The Territory legislation, provision section 21, unlike the Commonwealth one, does not provide for disqualification of a member who has a contract of profit with the Crown’.
Mr Stirling: This is the Northern Territory’s leading constitutional expert is it?
Mr SPEAKER: Order!
Mr BURKE: Again, I would simply say to Territorians, it is the member for Nhulunbuy interjecting, and I apologise that he is trying to drown out my comments.
Mr Parish went on: ‘The Commonwealth one does, although there has only ever been one case on it but, presumably, in response to the problems that arise from that, the Self-Government Act was drafted’, this is interesting, ‘the Self-Government Act was drafted so that it does not provide for disqualification’.
If one reads the Constitution it is very explicit. The Self-Government Act essentially leaves the issue in the hands of the parliament. What it says is that a person who does have a contract with the Crown shall not speak or vote in a debate on that issue. It does not provide for any particular consequences if you don’t. It simply provides that the matter gets dealt with by the Legislative Assembly. Now one would have thought that in the circumstances where you have a person, who is a back-bencher who is about to retire, where there is no conceivable bias, I would have thought for him to be influenced in his conduct of his duties as a member of the parliament is difficult. I would expect the Legislative Assembly would probably deal with it very quickly and would have thought very properly and come to the conclusion that it ought to take no further action. I offer that simply as Mr Parish’s point of view.
This is my point of view. First of all, in her allegations, the Leader of the Opposition quoted to the parliament clause 21(3) and then proceeded to interpret it for us: ‘In simple terms that means if an MLA has a contract with government and speaks in the Assembly on a matter that relates to that contract they have broken the law. The penalty is disqualification from being a member of this Chamber’. In simple terms, or even complicated terms, it does not mean that at all. For starters, subsection (3) does not cover every contract with the government. If it did cover every contract with the government, obviously the member for Nhulunbuy and the member for Arafura living in Housing Commission homes, would be interpreted as a contract with the government. They have spoken in this Assembly on that issue and therefore should be disqualified if that was the case. Perhaps it should cover those particular situations.
Secondly, subsection (3) cannot be read without reference to subsection (4), which the Leader of the Opposition either failed to notice, or decided to ignore. Subsection 4 reads: ‘Any question concerning the application of subsection (3) shall be decided by the Legislative Assembly, and a contravention of that subsection does not affect the validity of anything done by the Legislative Assembly’. So the matter is not, as the opposition charges one for me, as Chief Minister to uphold the law. It is a matter for this parliament to decide.
Thirdly, I am not sure how the opposition leader …
Ms Martin: Put a motion.
Mr BURKE: The Leader of the Opposition says put a motion. I simply say to her that that ability is open to any member of this House. I am explaining why I will not be putting a motion. I am not sure how the opposition leader has arrived at the conclusion that the penalty is disqualification. I see no mention of the word in either subsection (3) or subsection (4). In contrast, the earlier subsections of clause 21 make it quite clear. Subsection (1) states ...
Mr Stirling: Okay. So ...
Ms Martin interjecting.
Mr SPEAKER: Order! Both the Leader of the Opposition and the member for Nhulunbuy please refrain from comment. Let’s hear the answer.
Mr BURKE: It is important to note, for Territorians, that the allegation made in this Chamber by the Leader of the Opposition would lead, in her opinion, to the disqualification of one of the members of this House, and they do not even have the courtesy to listen to the answer on such a serious matter.
I go on: In contrast, if one reads the Self-Government Act, the earlier subsections of clause 21 make it quite clear. Subsection (1) states quite bluntly: ‘A person is not qualified to be a candidate if etc’. Similarly, subsection (2) begins: ‘A member of the Legislative Assembly vacates his office if…’ and it goes on. Subsection (3), the area of the allegation, makes no such admonition. It says simply:
A member of the Legislative Assembly who is a party to, or has a direct or indirect interest in, a contract made by or on behalf of the Territory under which goods or services are to be supplied to the Territory shall not take part in the discussion of a matter, or vote on a question, in the Legislative Assembly where the matter or question relates directly or indirectly to that contract.
And for any penalty or action it refers the reader to subsection (4).
It would appear that the drafters of the Self-Government Act recognised that members of parliament would face such conflicts of interest. In their wisdom they obviously decided that such conflicts should not disqualify a member, but rather just restrict the activities of the MLA in the parliament wherever such conflict arose. The drafters chose to impose a restriction that the parliament itself, this Assembly, could administer. That is the obvious intent when you read subsections (3) and (4), rather than be blinded by the need to get a headline and only read a section that agrees with your spin on events.
So, now, that is the background. Let’s turn to the particular matter that the opposition leader raised: The fact that the member for Nightcliff spoke in a particular debate.
If we return to the debate on 15 June this year and we look at the comments of the Leader of the Opposition during that debate, we find that during her speech, and remember she is speaking now before the member for Nightcliff gets to his feet, during her speech she says: ‘I note that the amendment schedule number 76 has been circulated by Mr Hatton. It is an attempt to change that amendment. It will interesting to hear the member speak to this amendment’. A few seconds along she repeats her invitation: ‘I am interested to hear the mover [that is, the member for Nightcliff] of the amendment talk to it’.
Twice the Leader of the Opposition urged the member for Nightcliff to speak. Let’s be clear about this. Nobody on either side ...
Ms Martin: I wanted him to explain what his amendment was, you great idiot. Goodness, this is a parliamentary Chamber ...
Mr SPEAKER: Order!
Mr BURKE: Let’s be very clear on this, nobody on either side of the House was in any doubt that the member for Nightcliff faced a conflict of interest in this matter. We all knew of the conflict, yet the opposition leader urged and encouraged him ...
Members interjecting.
Mr SPEAKER: Order! Order!
Mr BURKE: ... urged and encouraged him to speak. Perhaps she was playing agent provocateur. Perhaps she was the black widow spider - talk about four months for the trap to close, but perhaps we could stretch the bow and suggest that that was her ...
Mr Stirling: You have justified it. Sit down.
Mr BURKE: However, back on 15 June ...
Ms Martin interjecting.
Mr Stirling interjecting.
Mr SPEAKER: Order! Once again, both the Leader of the Opposition and the member for Nhulunbuy are over the top.
Mr BURKE: Back on 15 June, no sooner had the opposition leader resumed her seat than the member for Nightcliff accepted her invitation to stand and speak. This is a very serious allegation. He accepted her invitation to stand and speak. He started his remarks ...
Mr Stirling: It was his amendment, who else was going to speak to it if he didn’t? I didn’t see any of these blokes stand up to speak for it.
Mr SPEAKER: Order! Would the member for Nhulunbuy like to spend an hour out?
Mr BURKE: He started his remarks in this way. He said: ‘Mr Speaker, I intend to speak on this bill but I must declare an interest in respect to this payroll tax legislation and I advise that I will not be participating in any vote that takes place. Members are aware,’ the member for Nightcliff continued, ‘that the comments will be made in the context of my family business, which is directly and specifically affected by the legislation and the comments should be taken in that light’.
That was on any interpretation a completely upfront explanation of the situation. No one from this side of the House jumped up and objected, no one from the opposition side jumped up to withdraw the leader’s invitation for the member for Nightcliff to speak. By these actions, the Legislative Assembly had decided that the member for Nightcliff could speak, thus exercising his right under subsection (4) to deal with matters under subsection (3) of the Self-Government Act.
To reinforce that acceptance, the Deputy Leader of the Opposition was inspired to rush into the parliament after the member for Nightcliff had finished his remarks. The member for Nhulunbuy acknowledged – as he put it – the absolutely astounding amendment and contribution of the member for Nightcliff and the conflict of interest, but he raised no objection to the member having made his speech.
Again, a tacit exercise of the right of this Assembly under subsection (4) to deal with subsection (3) of the Self-Government Act. For the opposition now to turn up four months later and start claiming some sort of outrage in the outing of the member for Nightcliff is pretty typical of the hypocrisy they continually practice. If it was a breach of the Self-Government Act for the member for Nightcliff to speak on this issue, then why did the opposition urge him to comment during the debate.
We all know that any conflict arises because of his association with his company, SP & C Hatton Pty Ltd trading as Best Practice Skills - we all knew that conflict existed back on June 15; we all decided to allow him to speak. It should be recorded that the member for Nightcliff made one further contribution to the debate that night when he withdrew his amendments because he said…
Mr Stirling: Why did he withdraw it?
Mr SPEAKER: The member for Nhulunbuy!
Mr BURKE: He not only did not vote, he withdrew his amendments because to quote the member for Nightcliff, ‘His amendments were going nowhere’, and this allegation is going in the same way, nowhere.
I will add and reinforce the fact that the offer is open to any member of this House to raise a motion to ask the House to deal with. It is not an issue primarily for the Chief Minister. That is simply my point of view, this is a scurrilous allegation and should go nowhere.
Last updated: 09 Aug 2016