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 Tasmania in the Senate for the place for which Stephen Parry 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.

Mr President, I'm not going to detain the chamber for very long this morning, because we are aware of the circumstances in which your predecessor, former senator Stephen Parry, took the course he did and resigned the office of President and resigned his place as a senator for the state of Tasmania.

In brief, the High Court of Australia delivered its decision in the reference of seven members of this parliament, six senators and one member of the House of Representatives, on Friday, 27 October. Senator Parry rang me the following Monday morning shortly after 9 am Queensland time—I assume it was shortly after 10 am where he was at the time—to advise me in words to the effect that, having studied the High Court's decision, he considered that it applied to him by reason of the fact that his late father was a UK citizen, and, as we know, he resigned his place. Although Senator Parry resigned his place, it is nevertheless appropriate to make this reference under section 376 of the Commonwealth Electoral Act so that the court can make orders, as the motion indicates, for the filling of that place. The usual course, as we know from the previous cases involving Senator Nash and Senator Ludlam and Senator Waters, is by a special count conducted by the Australian Electoral Commission, but that must await an order by the Court of Disputed Returns.

Given that the High Court has recently and famously delivered a unanimous judgement on the proper interpretation of section 44(i) of the Constitution, there would not seem to be any room for legal controversy about the principles to be applied, they having been recently and emphatically settled, nor would there appear to be any factual controversy about the fact that Senator Parry, the son of a UK citizen, would appear to be ineligible to have been chosen, following the reasoning the court adopted in the earlier cases to which I have referred. Therefore, the government wouldn't anticipate that the matter would be the subject of fresh contentious argument before the High Court—but that remains, of course, entirely a matter for it.

It is our role, and our role only, to exercise the power we have under section 376 of the Commonwealth Electoral Act, which is itself derived from section 44 of the Constitution, to make this reference. I would submit to the Senate that, plainly, the grounds for the making of the reference do exist. The terms of the reference are the same as the terms in which the other six senators recently referred to the High Court were referred, and it is an appropriate exercise, and indeed a necessary exercise, of the Senate's power to make this reference. I commend the motion to the chamber.