Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

I rise to speak on the motion moved by the Leader of the Government in the Senate and also to make some comments, if I may, about motions which I understand Senator Di Natale intends to move in relation to two other former senators. These motions raise very important issues for the Senate to resolve. In November last year, the Senate considered similar motions relating to the eligibility of former Senators Day and Culleton. On each of these motions, the Senate came to the view without the need for a division. The matters should be referred to the High Court of Australia sitting as the Court of Disputed Returns for resolution.

It's important to note that that decision of the Senate did not presuppose an outcome. Rather, it was a reflection that serious doubts about the eligibility of the senators in question had been raised and that, given the complexity of these issues, it is desirable to send the matters to the High Court so that it may, as the Court of Disputed Returns under the Commonwealth Electoral Act, resolve the matters beyond any doubt. Taking this step—referring the matters to the only authority that can resolve them, which is the High Court of Australia—serves to protect the interests of the parliament and the integrity of our electoral system.

It is disappointing that we are faced today with the same task. However, the opposition believes the government is taking the correct approach. Credible doubts have been raised about the eligibility of Senator Canavan, and these doubts need to be resolved one way or the other. That is why the act makes provision for this process and that is why we believe that the government has done the right thing in moving the motion it has, and the opposition will be supporting it.

Senator Di Natale has also indicated publicly that he intends to move similar motions relating to former Senators Ludlam and Waters. I want to take this opportunity to foreshadow that, subject to any additional evidence that may be tabled or arise in this debate, the opposition also intends to support these motions. Again, this is not to presuppose the outcome. Evidence may be put before the court that leads to a determination that one or all of these senators are eligible to sit. But, in each case, doubts are clear and on the public record, and the only way to resolve these matters is for the High Court to determine them.

I also wish to set out the approach the Labor Party is taking to these matters more generally. It is a very serious matter to question the eligibility of a senator to sit in this place. It is not a decision that should be taken lightly and it can't be taken without consideration of evidence on the public record. I know some in this place have called for the appointment of some body or eminent person to 'audit' the eligibility of all senators. This isn't an approach that the Labor Party supports.

I would like to look at a little bit of history. The Senate considered a similar proposal to this in 1999, from Senator Len Harris, a One Nation senator. The debate on that motion is instructive. In particular, I draw the Senate's attention to the contribution from Senator Bob Brown, on behalf of the Australian Greens:

One of the problems is the reversal of the onus of proof. I am concerned it could be followed up by a wide variety of motions which require members of parliament to attest to their propriety without there having been any evidence that they had acted with impropriety. Surely that is not the way for us to proceed in a parliament which, as has been said by previous speakers, members have been required to sign something to say that they have abided by constitutional requirements. In effect, through taking the oath or affirmation when entering this place, they have repeated that assurance that they have been properly elected. This point was reiterated, on behalf of the Labor Party, by Senator Robert Ray:

… it is not unheard of for this chamber to refer a matter of qualification to the Court of Disputed Returns but it always does that on the basis of some evidence—and we do not want to reverse the onus of proof.

Senators from the Liberal Party took a similar approach in the same debate.

So, the approach the Labor Party will take today is a consistent approach that we have taken on similar matters for several years, and actually reflects the position adopted by those opposite and the past position of the Australian Greens. We do not support reversing the onus of proof and requiring all senators to prove their eligibility where no question has arisen. However, where the public record reveals serious credible doubts, the only appropriate resolution is through a referral to the one body that can make an authoritative determination, and that is the High Court of Australia.

Those who propose an administrative audit need to appreciate that nobody other than the High Court can authoritatively resolve questions of eligibility. So their proposed solution is no solution, and any audit can only ever assess eligibility at a point in time. If we reflect on the case of Mr Day, an audit conducted when he was first elected to this place would have revealed no impediment. He only became ineligible subsequently, when he entered into a financial arrangement with the Commonwealth in breach of section 44 placitum (v). The current circumstances are also a reminder of the importance of all candidates and all parties in running a thorough vetting process. As Senator Faulkner said during that 1999 debate, with his characteristic clarity, 'If you fail to do your homework, as is the case with Ms Hill, you make a mistake, a big one, and you get caught out—tough, that's the way it works.'

Mr President, questions relating to the composition of this chamber go to the heart of representation in our democracy. It is unfortunate that, for the second time in 12 months, we find ourselves in the position of having to seek the guidance of the High Court to clarify who is properly chosen to sit in this chamber. In the 1999 debate to which I referred, Senator Robert Ray made the following observation about the processes that parties need to go through to assess the eligibility of potential candidates:

It is tedious and it is time consuming, but it is done so that we do not face these particular situations.

Recent events are a timely reminder of the importance of parties and candidates ensuring their processes are robust. The opposition supports the referral of this matter, and looks to the High Court for its decision.