The Senate must decide the Dastyari question now. It’s more than about one senator. It’s about the control and influence of the Chinese Communist Party in the body politic.
We are still being told what we were told when the story broke over a year ago, that Senator Sam Dastyari has broken no laws.
What are the facts? It is established that he took money from a businessman close to the Communist Chinese government, Huang Xiangmo. He did this not only for his party, as both Labor and the Liberals do, he took money for himself.
When a bipartisan policy between government and opposition emerged opposing the building of artificial islands in the South China Sea and Beijing’s claims to that major navigation route through the high seas, Huang withdrew the promise of a very large donation to Labor.
Then, standing beside Huang at a Chinese press conference, Dastyari disavowed Australia’s policy, clearly adopting Beijing’s.
He was then able to neutralise this by arguing that he had been misreported, at least until a recording recently appeared which demonstrated that the Chinese media had, in fact, reported him accurately. That particular game was then well and truly up, although he said he was surprised to hear what he had actually said.
More recently, according to The Sydney Morning Herald, he warned Huang his phone could be tapped and suggested they talk outside of Huang’s mansion, leaving their phones inside in case the security services were listening. He has not satisfactorily explained why he did this, nor what was said.
Whether or not he has broken laws about security and funding, the essential question is whether he has jeopardised his status as a Senator for New South Wales. Unsurprisingly, there have been calls for him to resign.
He would be disqualified under section 44 of the Constitution if he were to be shown to be “under any acknowledgement of allegiance, obedience, or adherence to a foreign power’’, that is the Peoples Republic of China.
The Spectator Australia reported over a year ago, on 17 September 2016, that while Australians were being swamped with the mantra that Senator Dastyari had broken no rules, it was clear even then that he may well have broken the nation’s fundamental law. The matter would have been glossed over but for Senator Cory Bernardi calling for an inquiry into what he described as a ‘dodgy deal’, one with the ‘stench of corruption’.
As Spectator said then, Prime Minister Turnbull missed the point and “swallowed Bill Shorten’s line” that this question was just about donations. Rather, Spectator said, it was about the influence and indeed the control exercised in Australia by the Chinese Communist Party.
Spectator called on Dastyari to reveal not only what the financial arrangements with his benefactor are, but any link between those arrangements and his undermining of and his public denunciation of our crucial bi-partisan policy on freedom of navigation, under international law, in the South China Sea.
We said his explanation so far had been pitiful: from ‘misquote’, to ‘misspoke’ and ‘wrong’. It was subsequently shown to be untrue.
The Spectator said the Australian Constitution was clear, expressly disqualifying a senator in allegiance, obedience, or adherence to a foreign power, no ifs or buts. This is not some interpretation which tests the boundaries of commonsense. This is the clear text of the Constitution and is, without doubt, the original intention of the founders.
What has been extraordinary in the current “dual nationality” crisis is that Australian born citizens have been involved who had done nothing to take up some foreign citizenship. In this case, the question revolves precisely and only around Dastyari’s voluntary acts.
What the politicians seem to have forgotten is the elementary fact that, as Emeritus Professor Michael Detmold points out in the December 2017 Quadrant, and as we did in the Spectator, the power to interpret the Constitution is not exclusively the High Court’s. It is also the Senate’s and the House of Representatives.
Section 47 is the key, confirming the Westminster position. Under this, “any question respecting the qualification of a senator’’ as well as disputed elections, shall be determined by the Senate.
The section begins with the words, ‘’Until the Parliament otherwise provides.’’ Parliament has in fact only partially provided otherwise.
Under section 376 of the Commonwealth Electoral Act, adopted as long ago as 1918, among other matters, “any question respecting the qualifications of a Senator… may be referred by [Senate] resolution to the Court of Disputed Returns”.
Thus the Senate can itself determine the question of Dastyari’s eligibility to sit. That would save time and money. By resolving to set up a short, sharp inquiry under a Special Parliamentary Counsel, a QC or someone of that authority, the matter could be investigated immediately and a report prepared for the Senate’s early decision.
This is clearly what the Constitution intends and would allow the matter to be dealt with now. The Senate should get on with it without delay.
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