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Government MP's political future threatened
The Labor Party will challenge the eligibility of Nationals MP David Gillespie to remain in politics, threatening the government's slim majority.
The opposition believes Assistant Health Minister David Gillespie may have an indirect financial interest in the Commonwealth - grounds for disqualification from office under section 44(v) of the constitution.
As revealed by Fairfax Media in February, the Nationals MP owns a small suburban shopping complex in Port Macquarie and one of the shops is an outlet of Australia Post - a government-owned corporation.
The ALP has obtained high-level legal advice that says this arrangement could result in Dr Gillespie's election being ruled invalid, just like that of former Family First senator Bob Day.
Labor's national executive signed off on the challenge at a meeting on Friday morning and papers were subsequently served on Dr Gillespie.
If Dr Gillespie is disqualified, it would spark a byelection in his seat of Lyne, potentially bringing down the government which only has a one-seat majority.
The case is being brought by the former Labor candidate for the seat, Peter Alley.
"This is not a step that has been taken lightly," Mr Alley said. "It has been taken after considering expert legal advice from senior counsel about the constitutionality of Dr Gillespie's election in 2016.
"I don't believe I have a choice but to make this application. Over 100,000 people who voted in Lyne last year deserve to know that the member for Lyne was eligible to be elected. This is their democratic and constitutional right."
Mr Alley said the government had sought to turn a blind eye to Dr Gillespie's constitutional problems and the High Court was "the most appropriate venue for it to be properly and fairly considered".
The ALP has assembled a high powered legal team to argue the case, led by barristers Bret Walker, SC, and James Mack. Ray Finkelstein, QC, is assisting.
If there is a byelection, the Nationals will be well-placed to retain the seat but it would be an enormous political headache for the Coalition. The seat was previously held by independent Rob Oakeshott.
Dr Gillespie won the seat only after Mr Oakeshott announced his retirement in 2013.
Dr Gillespie and his wife, through their company Goldenboot, lease the shop space in question to a woman who is an Australia Post licensee - meaning he has no direct financial link to the postal service.
Nonetheless, prominent constitutional law expert George Williams believes Dr Gillespie has a case to answer based on the broad definition of "indirect pecuniary interest" the High Court applied in the Bob Day test case. Fellow constitutional lawyer Anne Twomey on Friday said: "You never can tell what the High Court will do."
In the court's April decision, Mr Day was ruled ineligible to be elected because he had an indirect financial interest over a taxpayer-funded electorate office leased to the Department of Finance.
Section 44(v) of the constitution says any person who "has 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 shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives".
The section is an anti-corruption measure, designed to stop people sitting in Parliament and at the same time making money through contracts with the Commonwealth.
At a Senate estimates hearing on May 23, Attorney-General George Brandis revealed he had urged Dr Gillespie to seek his own legal advice on the matter. He did, from prominent Sydney barrister Guy Reynolds, SC.
"Mr Reynolds' opinion is that Dr Gillespie does not have a section 44 problem. I have not written any advice in relation to the matter but I can tell you that I discussed the matter with Dr Gillespie and I formed the preliminary view that his arrangements were nowhere near a section 44 problem because of the indirectness of the interest," Senator Brandis said in the hearing.
However Dr Gillespie has resisted calls to release Mr Reynolds' advice publicly.
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