Labor has launched a high court challenge to the right of a National party MP to sit in the parliament, which could remove the Coalition government’s one-seat majority.
Labor’s national executive confirmed the decision on Friday morning to challenge the assistant health minister and National MP for Lyne, David Gillespie, over a potential commercial interest with the commonwealth.
If the case were successful, a byelection would be triggered in the safe National party seat on the New South Wales mid-north coast. If the Coalition candidate lost, the Turnbull government would lose its one-seat majority. Gillespie won the seat after the former independent Rob Oakeshott retired at the 2013 election. Oakeshott ran at the 2016 election in the nearby safe National seat of Cowper but failed to unseat MP Luke Hartsuyker after a three-week campaign.
The high court case has been launched by the 2016 Labor candidate for Lyne, Peter Alley.
“Today I have commenced proceedings in the high court of Australia to determine whether David Gillespie’s election as member for Lyne in 2016 was unconstitutional,” Alley said.
“This is not a step that has been taken lightly. It has been taken after considering expert legal advice from senior counsel about the constitutionality of Dr Gillespie’s election in 2016.
“The application filed today contends that the member for Lyne had an indirect pecuniary interest in an agreement with the commonwealth.
“If this is established under Section 44 (v) of the constitution, Dr Gillespie was not eligible to stand at the 2016 election and is constitutionally unqualified to sit as a member of the House of Representatives.”
According to a Fairfax Media report in February, confirmed at the time by Guardian Australia, Gillespie and his wife own a small suburban shopping complex at Lighthouse Beach in Port Macquarie, NSW.
Through their company, Goldenboot, they lease one of the shops to a local woman who runs a newsagent with an Australia Post outlet as a licensee of the government-owned corporation.
Gillespie has previously insisted there was no conflict of interest or constitutional breach because his company has no agreement or deal with Australia Post.
When approached for comment on Friday, Gillespie said: “As this matter is now subject to legal proceedings it would be inappropriate to make any comment at this time.”
The foreign affairs minister, Julie Bishop, dismissed the high court case as an attempt by Labor to distract from the government’s effective policies.
The acting Labor leader, Tanya Plibersek, said Dreyfus had asked Brandis twice to investigate whether there was a conflict of interest over Gillespie’s arrangements.
“The government was very quick to take cases to court in relation to those two crossbench senators [Bob Day and former One Nation senator Rod Culleton],” Plibersek said.
“Yet, when it is one of their own in the House of Representatives, when they are relying on this one vote, they are refusing to examine any potential conflict of interest and they are refusing even to respond to Labor’s correspondence about whether there is a conflict of interest.”
Under section 44 (v) of the constitution, a sitting member can be disqualified if they have “any direct or indirect pecuniary interest in any agreement with the public service of the commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than 25 persons”.
If the challenge is successful, the Turnbull government could lose its one-seat majority. The government holds 76 seats, but with Speaker Tony Smith holding one seat. There are 74 seats across the aisle, where Labor holds 69, with Greens MP Adam Bandt, NXT MP Rebekha Sharkie and independents Bob Katter, Cathy McGowan and Andrew Wilkie.
Alley said he did not believe he had a choice over the legal action.
“Over 100,000 people who voted in Lyne last year deserve to know that the member for Lyne was eligible to be elected,” Alley said. “This is their democratic and constitutional right.”
In April, the high court ruled unanimously that Bob Day was ineligible to be a senator because he had an “indirect pecuniary interest” in an agreement with the commonwealth.
That case related to the lease of Day’s Adelaide electorate office by the commonwealth. Fullarton Investments, an entity that bought the 77 Fullarton Road property from the Day family trust on a vendor finance basis, was to receive rent from the commonwealth and use it to pay back the trust, although no rent was ever paid.
A majority of the court found that Day was ineligible from 26 February 2016, the date on which Fullarton Investments directed the commonwealth to pay rent to a bank account owned by Day.
Earlier this year, the shadow attorney general, Mark Dreyfus, wrote to the attorney general, George Brandis, pointing out that the court noted Day was disqualified because he had an “indirect financial interest in a commercial property that was leased to the Department of Finance to serve as his taxpayer-funded electorate office”.
“There is a clear correlation between Mr Day’s situation and that of the Coalition member for Lyne, the Hon Dr David Gillespie MP, who owns a retail premises which is occupied by an outlet of Australia Post,” Dreyfus wrote.
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