George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

The government will not be supporting this motion. As I have pointed out in the past, the Senate relies upon senators to behave with integrity, and I believe that members of this Senate have behaved with integrity. Several senators have now stood up and, under no pressure at all but the dictates of their own conscience, have declared that they had a concern that they may be ineligible under section 44 and have referred themselves to the Court of Disputed Returns. We saw that as recently as a few minutes ago in the case of Senator Nash and Senator Xenophon. So we will not be supporting this motion.

I wanted to avoid doing this but because in the brief debate about Senator Nash some remarks were made, in particular by Senator Di Natale, about the timeliness of Senator Nash's referral let me put on the record what happened. On the evening of Monday, 14 August, the government was made aware for the first time of advice from the British Home Office that, on the basis of the limited facts then available, it appeared that Senator Nash may be a British citizen by descent. She advised the Prime Minister early on that Monday evening and the Prime Minister advised me.

I then called the Solicitor-General to let him know that we would be seeking his urgent advice in relation to a possible section 44 matter. I made that call at 7.16 pm on Monday evening, as soon as I left the Prime Minister's office. The Solicitor-General told me that he would be in the High Court for most of the week and wouldn't be able to deal with the matter until he had finished his matter before the High Court. At 1.30 pm on Tuesday, 15 August, my office received an email from counsel assisting the Solicitor-General saying that the Solicitor-General would like to have expert advice from a United Kingdom citizenship lawyer in order to prepare his opinion.

During the course of Tuesday and Wednesday, further information was sought from Senator Nash to identify or establish relevant aspects of her family history. Because both Senator Nash's parents are deceased, it took some time to establish the relevant facts. Meanwhile, my office sought to identify a suitable UK based citizenship law expert, and by Wednesday, 16 August, we had identified a suitable English QC who is an expert on UK citizenship law and was available to provide advice to the government urgently. On Wednesday evening at 7.16 pm, one of my staff emailed John Reid, who is the head of the Office of International Law within the Attorney-General's Department, with instructions to the British lawyer, Mr Fransman QC, requesting urgent advice on the basis of the facts that had been established during the course of that day and the previous day. Mr Fransman agreed to deal with the matter urgently and, on Thursday at 5.40 am, his written advice was sent to my office.

I spoke to the Solicitor-General on Thursday morning. He was still in the High Court but he said he expected to be finished with his matter by Thursday afternoon. I told him that I'd send him Mr Fransman's advice and I said to him words to the effect of 'as soon as you have finished in the High Court, could you please give the government an urgent opinion on the Nash matter'. The advice from Dr Donaghue, the Solicitor-General, was received in my office at approximately 5 pm on Thursday, 17 August. I was in meetings at the time. The Prime Minister dropped into my office at 6.15 pm on Thursday evening to discuss the matter and, at that time or thereabouts, both the Prime Minister and I read Dr Donaghue's advice. The Prime Minister immediately convened a meeting of the governance committee of the cabinet, comprising himself, Ms Bishop and me. The Deputy Prime Minister was unavailable. The governance committee resolved that the matter would be referred to the Court of Disputed Returns under section 376 of the Commonwealth Electoral Act.

The Prime Minister asked Senator Nash to come and see him. She arrived a few minutes later and was acquainted with the advice. A decision was made that it was desirable that the matter of Senator Nash's citizenship should be made public as soon as possible. We decided between roughly 6.30 and 6.50 pm on Thursday evening that Senator Nash should go into the chamber immediately to tell the parliament and the public what the position was. She did so at 7.05 pm—in other words, approximately 50 minutes after the Prime Minister and I first saw the Solicitor-General's advice.