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

by leave—I move:

That pursuant to section 376 of the Commonwealth Electoral Act 1918, the Senate refers to the Court of Disputed Returns the following questions—

(a)   whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation of New South Wales in the Senate for the place for which Senator Fiona Nash was returned;

(b)   if the answer to question (a) is "yes", by what means and in what manner that vacancy should be filled;

(c)   what directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference; and

(d)   what, if any, orders should be made as to the costs of these proceedings.

As honourable senators are aware, on Thursday, 17 August, when the Senate last sat, Senator Nash made a statement to the Senate during the course of which she disclosed that she had a concern in relation to her eligibility to be chosen for the state of New South Wales because of subparagraph (i) of section 44 of the Constitution. Senator Nash was quite forthright, at the earliest opportunity, in raising that issue in the Senate.

The government has taken advice from the Commonwealth Solicitor-General. On the basis of that advice, I can advise the Senate that the government is of the view that Senator Nash is not ineligible to sit and was not incapable of being chosen. Nevertheless, in view of the matters raised by Senator Nash it seems a prudent course for the Senate to make a reference under section 376 of the Commonwealth Electoral Act, which is the purpose of this motion. The facts and circumstances were set out in Senator Nash's statement on 17 August. The history of the matter was related by me during the Senate Legal and Constitutional Affairs Committee spillover hearings on the morning of Friday 18 August. I will not detain the Senate by going over those circumstances again. Suffice it to say that Senator Nash acted very promptly and very properly, and we will be supporting this reference.