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

I thank honourable senators for their contribution to the debate. Two things have emerged from this debate very clearly. The first is that, as no senator has actually spoken against the motion, it is plain that it is the unanimous view of the Senate that the government is taking the right course in moving this referral motion under section 376 of the Commonwealth Electoral Act. There has been a lot of innuendo and there has been a lot of rhetoric and bombast from people like Senator Carr and Senator Whish-Wilson, but nobody has actually criticised the course the government is taking.

The other thing that emerges very plainly from this debate is the very high personal regard in which our former colleague Stephen Parry is held by all, because all who have risen in this debate to criticise him have at least had the decency and good grace to say words to the effect that he was a very good President of this Senate and a very good man, although there has been some criticism of the way in which he chose to deal with a situation with which he was confronted. As a friend of Stephen Parry's who passionately believes him to be a good, honourable and decent man who graced the office of President splendidly, let me merely say that those who wish to criticise how Senator Parry may have acted under pressure might do well to remember the advice of our Lord in John 8:7 and reflect upon the perfection or otherwise of their own conduct in difficult circumstances.

Lastly, because I don't want to delay the chamber, let me deal with an issue that only Senator Hinch has raised. As I said earlier, the first I knew of these matters was when Senator Parry rang me on Monday, 30 October. I've checked my mobile phone log: it records an incoming call from him at 9.11 am, Queensland time. Contrary to what Senator Hinch has said, Senator Parry didn't tell me that he had discovered that he was a dual citizen. What Senator Parry told me was words to the effect that, having studied the High Court's decision, he thought he might have a problem and that he had taken urgent steps to clarify the position with the British Home Office, but he had concerns. That's what he told me. As soon as that conversation was finished, I immediately rang my chief of staff, at 9.22 am Queensland time, and related to him what Senator Parry had said to me—namely, that he thought he might have a problem but he was checking to see what the position was and seeking urgent advice from the UK authorities. I asked my chief of staff to convey that to the Prime Minister's office, which he tells me he immediately did. I think—don't hold me to this—the Prime Minister was actually in the air at the time on the way to his visit to commemorate the centenary of the Light Horse charge at Beersheba.

Senator Hinch, you seem to misapprehend, if I may say so with respect. I'm not saying Senator Parry told me that he had concluded that he was a dual citizen. He told me that he had appreciated, having read the High Court's decision, that he may have a problem, and that is the information I caused to be conveyed immediately to the Prime Minister's office. I commend the motion to the Senate.

Question agreed to.

by leave—I move:

(1) That not later than 5 pm Friday, 1 December 2017 (and within 21 days of making and subscribing an oath or affirmation as a Senator) each Senator shall provide to the Registrar of Senators' Interests a statement containing the following:

(a) a declaration by the Senator that, at the time the Senator nominated for election to the Senate in this 45th Parliament he or she was an Australian citizen;

(b) a declaration that the Senator is not a citizen of any country other than Australia;

(c) a declaration stating:

(d) so far as the Senator is aware:

(e) whether the Senator has ever been a citizen of another country and if so which country or countries;

(f) what steps the Senator has taken to assure him or herself that they have not inherited citizenship of another country from a parent or grandparent;

(g) if the Senator has answered the question in e) in the affirmative, then provide details and evidence of the date and manner in which the Senator's citizenship of that other country was renounced (if it was renounced) or the date and manner in which it came to an end in accordance with the laws of that other country;

(h) if the Senator's citizenship of that other country had not come to an end at the date of his or her nomination for the Senate, detail and provide evidence of any steps the Senator has taken to renounce the citizenship of that other country prior to the date of nomination; and

(i) if the Senator has declared that he or she was at the time of nomination or is now a citizen of a country other than Australia, on what basis the Senator contends that he or she is, nonetheless, not disqualified under section 44(i).

(2) If at any time the Senator becomes aware that information provided in their statement is no longer accurate they shall update their statement as soon as practicable but not later than 21 days of being so aware.

(3) Statements shall be made in accordance with this resolution and in a form determined by the Committee of Senators' Interests. The Registrar shall, in accordance with procedures determined by the committee, maintain a Citizenship Register comprising statements provided under this resolution. Other than as specifically provided for in this resolution, the committee has the same powers and functions in relation to the citizenship register as it does in relation to the Register of Senator's Interests.

(4) The Registrar shall, upon the expiry of the time for providing statements under this resolution, and at other times determined by the committee, publish the register and any alterations or additions to the register on the Parliament's website.

(5) Any Senator who:

(a) knowingly fails to provide the statement required by this resolution to the Registrar of Senators' Interests by the due date; or

(b) knowingly fails to correct an inaccuracy in his or her statement within the required timeframe; or

(c) knowingly provides false or misleading information to the Registrar of Senators' Interests;

shall be guilty of a serious contempt of the Senate and shall be dealt with by the Senate accordingly, but the question whether any senator has committed such a serious contempt shall first be referred to the Privileges Committee for inquiry and report.

The purpose of the motion is to require honourable senators to provide to the Registrar of Senators' Interests, not later than 5 pm on Friday, 1 December 2017, a statement containing a declaration by the senator that at the time the senator nominated for election to the Senate in this parliament he or she was an Australian citizen; a declaration that the senator is not a citizen of any country other than Australia; a declaration stating the place and date of the senator's birth, the citizenship that the senator held at the time of birth, and, if he or she did not obtain Australian citizenship at birth, the date he or she was naturalised as an Australian citizen; so far as the senator is aware, the place and date of birth of the senator's parents and grandparents; whether the senator has ever been a citizen of another country and, if so, which country or countries; and what steps the senator has taken to assure himself or herself that they have not inherited citizenship of another country from a parent or grandparent.

If the senator has answered the question of whether they were a citizen of another country in the affirmative, the senator is required to provide details and evidence of the date and manner in which the senator's citizenship of that other country was renounced, if it was renounced, or the date and manner in which it came to an end in accordance with the laws of that other country. If the senator's citizenship of that other country had not come to an end at the date of his or her nomination for the Senate, the senator is required to provide details and evidence of any steps he or she had taken to renounce the citizenship of that other country prior to the date of nomination. Finally, if the senator has declared that he or she was at the time of nomination or is now a citizen of a country other than Australia, the senator is required to state on what basis he or she contends that he or she is nonetheless not disqualified under section 44(1). Of course, statements made to the Registrar of Senators' Interests in obedience to this motion can be made only to the best of the senator's knowledge or belief. I think that goes without saying.

This has been a difficult time for the Senate as an institution and indeed for the House of Representatives, and it is important that all senators and indeed members act with integrity. In my belief, certainly those government senators and members who have been affected by these issues have done so. Might I point out that, in the case of the Deputy Prime Minister, Mr Joyce, and in the case of the member for Bennelong, Mr Alexander, both of those gentlemen resigned from the parliament, causing by-elections in their constituencies, because they had themselves declared to the Australian people facts which, on the view taken by the High Court of section 44(1) of the Constitution, made it appropriate that they do so, just as Senator Canavan came forward, just as Senator Nash came forward and—although there's been some controversy about delay on his part—just as Senator Parry came forward when he appreciated the effect upon him of the High Court's decision. And, seldom though it is that I commend the Greens, I've said before and I say again that I cannot fault and do not criticise the way in which Senator Ludlam and Senator Waters dealt with this matter.

The one political party represented in this parliament which has not adopted the appropriate course is the Australian Labor Party. We know—and we now have the advice of an eminent constitutional lawyer, no less than the former Solicitor-General Dr David Bennett QC—in relation to at least two Labor members of the House of Representatives—the member for Braddon, Ms Keay, and the member for Longman, Ms Lamb—that, on the proper construction of the High Court's decision, they are also disqualified from sitting. But there is this difference: whereas Mr Alexander last Saturday came forward and said, 'In view of what I appreciate now to be the position, I believe that I should resign,' the Leader of the Opposition, Mr Shorten, remains insistent, in the face of all the evidence, that his members of parliament—in particular Ms Keay and Ms Lamb, and there are others as well who may potentially be affected—will not budge. That is unsatisfactory and it is unacceptable, and it falls below the standards which the government has set.

When this issue first arose in the Senate, on 9 August this year, when the motion by Senator Di Natale concerning Senator Roberts was moved, I had this to say:

I caution the Senate that it is a very dangerous course for this chamber or any parliamentary chamber to decide on what might be a party-line vote in the absence of clear evidence that a member of this chamber is not eligible to be here.

Of course, that statement does depend upon both sides of politics, all elements of the chamber, having a common appreciation of their legal and, dare I say, moral obligations in circumstances of this kind. Certainly in the case of the member for Braddon and in the case of the member for Longman, there is clear evidence. And it demonstrates a significant failure of leadership on the part of the Leader of the Opposition, Mr Shorten, that he has not been prepared to insist that members of his caucus observe the same standards that members of the government and members of the Senate crossbench have themselves observed, particularly now in the light of the High Court's very clear decision and in the light of the advice that has been obtained from Dr Bennett QC.

What do we know about the case of the member for Braddon, Ms Keay? We know that the member for Braddon, Ms Keay, was preselected to be the Labor Party candidate for that seat on or around 26 June 2015—more than a year before the 2016 election. We know—because this is a publicly admitted fact—that Ms Keay completed the UK Home Office declaration of renunciation of British citizenship form on 9 May 2016. She delayed by almost 11 months after she knew that she was going to be the Labor candidate for Braddon to even initiate the process of renunciation of her UK citizenship. She waited until the day after the election was called to even initiate the process of renouncing her UK citizenship.

At the time Ms Keay was preselected, in June 2015, nobody knew when the next federal election was going to be, though it was expected to be sometime in 2016. But one thing Ms Keay did know from the time of her preselection was that she was going to be the Labor Party's candidate for Braddon. And she knew that, in order to be validly elected to this parliament, by the time of the next election she would have to have renounced her UK citizenship. And she didn't. She took no steps whatsoever for almost a year. Indeed, she delayed until after the election had been called before she even initiated the process. We know—this is not a controversial fact—that the process for renunciation of her UK citizenship was not complete until after the election had been held.

Under no circumstances could anybody possibly maintain, if they were being honest, that to delay for almost a year after you're preselected, to wait until the day after the election was called even to initiate the process, is taking reasonable steps to renounce the foreign citizenship. Indeed, Ms Keay had the boldness even to say that she wanted to wait and see whether she was elected or not. That was her explanation. But on no view could it be said that Ms Keay had taken reasonable, or indeed any, steps to renounce her foreign citizenship before the election was called.

Then there is the case of the member for Longman, Ms Susan Lamb, who was also a British citizen by descent from her father, as was Ms Keay. Ms Lamb, the member for Longman, was preselected on or about 10 July 2015, but she completed the UK Home Office form of renunciation on 23 May 2016. Like Ms Keay, she waited for almost a year—in her case 10 months—before completing the form. Like Ms Keay, she did not lodge the form until after the election had been announced and in fact she did not complete the form until some 15 days—more than a fortnight—after the election had been announced. Yet, like Ms Keay, Ms Lamb knew from the time of her preselection in July 2015 that she would be the Labor Party's candidate for Longman at the election likely to be called in 2016 but which, theoretically, could have been called at any time from after the date of her preselection. So in these two cases the Labor members—Ms Susan Lamb, the member for Longman, and Ms Justine Keay, the member for Braddon—delayed by almost a year in initiating the process of renouncing their foreign citizenship. In both cases they didn't complete the forms—in the case of Ms Lamb—or even begin to initiate the process—in the case of Ms Keay—until after the election had been called. Yet Mr Shorten expects us to believe that these two members took all reasonable steps to renounce their UK citizenship. The facts and the chronology of events plainly suggest that they did not.

There are other names that have been mentioned: Mr Wilson, the member for Fremantle; Ms King, the member for Brand; and there may be others. I have confined my observations this afternoon to the cases of the member for Braddon and the member for Longman because their cases are just so clear: preselected almost a year earlier; don't renounce their citizenship or even initiate a renunciation of their citizenship until after the election has been called; and still a foreign citizen on the day the election is held. The member for Longman and the member for Braddon are certainly in no more favourable a position from the point of view of section 44 of the Constitution than is the member for Bennelong, Mr Alexander, or the former member for New England, Mr Joyce. But Mr Joyce and Mr Alexander did the right thing, while Mr Shorten continues to protect the member for Braddon and the member for Longman, and we do not know how many others he continues to protect.

There has been a lot of sententious rhetoric from Mr Shorten, from Senator Wong and from others in the Labor Party, like Mr Burke, in recent days. But the truth of the matter is that the only political party—the only major political party—in this parliament which has refused to be observant of the process is the Australian Labor Party.

Now, late in the piece, we understand that the Australian Labor Party will support a process. They will support a motion moved, as I've done on behalf of the government, to enable there to be a public system of declaration so that the various inquiries set out in the steps that I've outlined in the motion can be satisfied. It is a shame that it has had to come to this. As the High Court has said by implication, it's a matter for this parliament to sort this issue out, and we are doing so. A similar motion will be moved in the House of Representatives as well.

Let me conclude where I began: when one exercises the jurisdiction under section 326 of the Commonwealth Electoral Act and section 47 of the Constitution to protect the integrity of the parliament against the presence within its chambers of people who—perhaps only for technical legal reasons and reflecting no bad character on themselves, by the way—were not validly elected, it does require both sides, and leaders on both sides, to act with integrity. That integrity has been singularly absent from the way in which the Leader of the Opposition, Mr Shorten, has dealt with this matter to date.