Richard Di Natale (Victoria, Australian Greens) Share this | Hansard source

That's right: we did. We accept that we initiated the cascade of events that have now befallen a number of other members of parliament, but look at the way that both Senator Ludlam and Senator Waters acted. They acted with integrity. They took it on the chin. They didn't blame their mum. They didn't blame anybody else. They said, 'We made a mistake, we should have done better, and we're going to accept full responsibility and resign.' That's what they did. They did it immediately.

They didn't do it because they agree with section 44 of the Constitution. We don't like it. We think it's a relic of the past. We think that it does need to be changed. We think that in a multicultural country like Australia, where so many people were born overseas, it has no role in modern Australia, and we'd like to change it. But you know what? It's in the Constitution. It's in our founding document, and, if you believe in representative democracy, you believe in upholding the founding document. You can't have it both ways. You can't on one hand say you believe in democracy and on the other hand trash the Constitution when it's convenient for you. You can't on one hand say, 'We expect other people to abide by our Constitution,' and on the other hand, when it comes to politicians, say, 'We'll ignore it when it's convenient.' That's where we are at right now: we have a constitutional crisis, a cloud hanging over this parliament that will continue well into next year.

Very early on in this process we called for an independent audit. We said, 'It's time to have an independent and transparent audit.' We called for that months ago. We had the support of every member of the crossbench. I know Senator Hinch has been very vocal in his support for an independent audit. If the Senate—that is, the Labor Party, the Liberal Party and the National Party—had agreed to that audit three months ago, we wouldn't be here right now. The whole thing would be sorted out. We'd have fixed it. Where there were doubts about MPs, those cases would have been heard, and we'd actually be here talking about how we're going to legislate for marriage equality and what it is that we're going to do to help those poor souls on Manus. That's what we should be talking about, yet right now this is a parliament consumed with itself, not with the business that affects people right around the country.

Of course, right through this, what it has revealed is a total lack of integrity, and Senator Wong is absolutely correct when she says that the government and this Prime Minister have acted shamefully, appallingly. Of course, when Senator Ludlam and Senator Waters resigned, that was incredible sloppiness! It was extraordinary negligence! It was a party not capable of governing! Yet, of course, what we now know is that there were members of the coalition sitting on this, not having the guts to come forward, own up to their mistakes and recognise that they too needed to do the right thing. We saw the incredible double standards when there were question marks over Senator Canavan and the decision was made for him to step aside from the ministry, yet when his Deputy Prime Minister got in trouble there was a totally different standard for him. He continued on as a minister, despite the fact that Barnaby Joyce knew in his gut he'd lose. He said that once the High Court handed down their decision. Double standards and hypocrisy—of course, this government is racked with it.

We saw an undignified end to the distinguished career of the former President of the Senate, Stephen Parry, who confided in his colleagues and was told to keep his head down, to shut up. He suppressed information in the hope that somehow the High Court would rule in their favour. We don't know whether members of the Prime Minister's office were aware of it, or indeed whether the Prime Minister himself was aware, but, if he wasn't, what does that say about the dysfunction in the heart of this government—that the President of the Senate could have been ineligible to stand and that information wasn't communicated to the Prime Minister? That speaks to a dysfunctional, divided government.

Then we have the extraordinary comments from Senator Brandis, who said that it's unthinkable that members of one party would refer members of another party to the High Court, yet that's exactly what they're proposing to do right now—again, more hypocrisy. We had the lecture from Senator Brandis about the information from the Solicitor-General—he was confident in the advice that was provided but so confident that he didn't have the guts to release it, to make it public. We called for an order for the production of those documents. We're still waiting. And we have the arrogance of the Prime Minister to instruct the High Court—'the High Court will so hold'. Well, it didn't. It was a seven-zip ruling. Now we are expected to believe that this motion, agreed to in a back room, is somehow designed to try and resolve this. Forgive me for not accepting the government's word that they are keen to put this behind them. It is a stitch-up; it is a fix. Nothing brings the two old parties closer together than the threat of losing people from their own side. That's what this is about. In an effort to avoid referrals to the High Court, we've seen this last-minute stitch-up to continue the protection racket that benefits Labor, Liberal and the Nationals. They're colluding today on this register in an attempt to be doing something when the reality is this is a smokescreen for inaction.

Let me get to the details of what is being proposed. There are four key problems with what the government has put forward. The first thing is that many of the so-called requirements for the register are based on belief or awareness. That is the reason we are in this mess. When we nominate, we declare on our nomination form to the Australian Electoral Commission that we believe we are not dual citizens. This is effectively asking us to do what we are asked to do when we nominate. That's all this does. Mr Shorten, in his letter to the Prime Minister, was absolutely correct when he stated that statements of knowledge and belief as to citizenship status are meaningless. They are meaningless. The High Court has made it clear here that it is the underlying facts that matter. What's the point in asking people to repeat on their declaration of interest the same information that they provide when they nominate for election? That's the reason we're here, for goodness sake—because people are either incompetent, or ignorant of the law, or in some cases have made genuine mistakes, and are found to be dual citizens. Yet paragraph 1(e) of the motion says that the senator must declare 'whether the Senator has ever been a citizen of another country and if so which country or countries'. It is asking the senator to make the same declaration that was made on the nomination form when they stood for election. By now we should recognise it is not a matter of individual senators (a) being trusted or (b) knowing whether they are dual citizens. That is the whole point of this issue, and simply asking them to declare it repeats the same mistake. Instead of making declarations, parliamentarians should be required to disclose the facts from which conclusions about citizenship can be drawn. This is a question of law determined by facts, not by belief, and that's what this register needs to include—facts, not questions of belief.

The second problem with this process is that there is no action to take this information forward—no active process of an audit or review or scrutiny of the information that is put on the register. It somehow leaves that work up to somebody else. So it's designed to provide information that's so vague, about a Senator's personal belief, and then ask somebody else to follow that up. Well, that's what's happening right now. That's why we're in this mess. We've got information that has been selectively disclosed, through the court of public opinion, with no process for independent scrutiny or review. Again, I come back to that single point: these are questions of law to be determined by the facts of the case, and unless we start instructing individual senators to be clear about the facts of their circumstances rather than making declarations of belief then this can't solve the problem. And there has to be an active process of audit.

The third problem is: what happens when question marks are raised? We know from today that nothing will bring the two parties closer together than a threat to their own numbers. So how do we know that these individuals will end up being referred to the High Court? You're asking the Senate to believe that, should questions be raised around an individual senator's eligibility, somehow, miraculously, the parties to whom those senators or members belong will refer them to the High Court. Well, that's just not how it works. The only reason former Senator Malcolm Roberts was referred to the High Court was that the Greens threatened to refer him and gained the support of the crossbench and, indeed, the Labor Party. That's why Senator Roberts ended up being referred to the High Court. We can't trust individual parties to act in the national interest, because we know that, to date, they've acted only in their own narrow self-interest.

The fourth problem with this is the time frame. We think that, at the very least, this could be dealt with. The information that's required should be provided within the next fortnight, and I will get to the sort of information that's necessary. But you can bet your bottom dollar that, if any one member of this place got a phone call to say, 'You know what? On that lottery ticket you bought you've just won a million bucks, but we need you to provide a bit of information here, and you need to have it within the next couple of weeks,' they'd find the time to provide that information. It'd probably take only a few days, not weeks. And now we've got a time frame to 1 December. I mean, you would have had to be hiding under a rock not to understand that this information needs to be made available and be made available quickly.

So the Greens will be amending this motion that comes before this Senate, and we'll be amending it in a way that addresses those four key points. Firstly, we're going to propose a shorter time frame so that we get a speedier resolution, and we've said that there is no excuse for this information not to be provided in the next fortnight. So we want to have this resolved much more quickly.

Secondly, we propose that, rather than asking senators what they believe to be the case—the Malcolm Roberts defence—which is what this motion does, matters of fact on eligibility be provided by senators. You know, declarations that just duplicate the declaration that each candidate made in signing the AEC nomination are totally meaningless. That's what this motion does. The High Court has said very clearly: 'It is the facts of the case that matter, and we will draw conclusions about someone's citizenship from the facts of the case.' So we've outlined what those facts need to be: the date and place of birth of MPs, their parents and their grandparents; whether individuals or their parents or grandparents have been naturalised as citizens of any country and, if so, when; some details around information on foreign passports and whether they've been renounced; and of course details of any other act by MPs under which they relied on foreign citizenship—that is, 'Have you voted in elections in another country?' They are basic facts that will help us determine objectively, in law, whether somebody is a dual citizen.

Thirdly, we propose an active process of audit by the Senate Standing Committee of Senators' Interests. When this information is provided, what happens next? Well, at the moment, the uncertainty will continue. We know that there is no process for doing anything with this information. We believe that, if we are indeed to have an independent audit, what it should look like is that the Committee of Senators' Interests are able to review the facts of each individual's circumstances; that they've got the power to send for and examine individuals and documents; that they can, as with other Senate committees, move to sit in public or private to provide that information; and that, if they need to, they can be empowered to appoint persons with specialist knowledge for the purposes of the committee—that is external, legal expertise. They can do all of that. That is the process of independent audit that is necessary here. And finally, where there is a question to answer, we propose a clear process for referral to the High Court sitting as the Court of Disputed Returns.

We have to put this mess behind us. It just seems that the government doesn't understand that the longer this goes on, the more this uncertainty lingers and the more this chaos continues, the more it undermines faith in our democracy. People have had a gutful, and this declaration, which is a smokescreen for inaction and which serves to benefit the interests of both the Liberal Party and the Labor Party, is not good enough. So we urge all members in this place to look at those individual amendments and to recognise that we can't repeat the same mistakes that were repeated when individuals nominated through the Australian Electoral Commission forms—the facts relevant to each individual circumstance should be provided and provided in a timely way. We've already said that we would be prepared to refer all individuals who are put forward in a motion to the High Court, regardless of where those referrals come from, because we want to see this crisis end.

And it is a constitutional crisis, because, when we don't have the confidence that the governing party in this place has the numbers on the floor of the lower house of parliament, that is as serious as it gets. We need an effective resolution to this crisis and it needs to be done quickly. This resolution, this motion before the Senate, is not that. To use the Labor Party's own words, 'Statements of knowledge and belief as to citizenship status are meaningless,' and yet this motion duplicates those problems in most respects. We have to get it sorted. The parliament is looking like a joke—a laughing stock—and we continue to see more delay and a proposal that's a smokescreen for action, when the very last thing both the government and, indeed, the opposition want is serious action on this front. I move:

(1) That not later than 5pm Friday November 24 2017 (and within 5 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 (along with any documentation):

(a) The date and place of birth of the parliamentarian;

(b) The date and place of birth of the parliamentarian's parents;

(c) The date and place of birth of the parliamentarian's grandparents;

(d) Whether the parliamentarian, his or her parents and his or her grandparents have ever been naturalised as citizens of any country, and if so, the country and date of naturalisation;

(e) Details, including dates of issue and, if relevant, cancellation, of any foreign passports previously held by the parliamentarian;

(f) Details of any other act by the parliamentarian under which they relied on foreign citizenship (eg voting in another country);

(g) Statement as to whether the parliamentarian, his or her parents and his or her grandparents have ever renounced citizenship of any foreign country, and if so, evidence of that renunciation and its acceptance by the authorities of the foreign country;

(h) The date on which the parliamentarian nominated with the Australian Electoral Commission for the 2016 federal election (or, for the House of Representatives, any more recent by- election).

(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 5 days of being so aware.

(3) Statements and documentations 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.

(4a) The Committee of Senators' Interests:

(a) commencing 24 November 2017, inquire into the citizenship status of each current Senator; and

(b) report to the Senate whether there are circumstances which may warrant a question or questions respecting the qualification of one or more Senators being referred to the Court of Disputed Returns under section 376 of the Commonwealth Electoral Act 1918; and

(c) present its final report on or before 6 December 2017; and

(d) during the inquiry:

(i) have power to send for and examine persons and documents;

(ii) to move from place to place, to sit in public or in private, notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives; and

(iii) have leave to report from time to time its proceedings and the evidence taken and such interim recommendations as it may deem fit; and

(iv) be provided with all necessary staff, facilities and resources and be empowered to appoint persons with specialist knowledge for the purposes of the committee with the approval of the President; and

(5) Any Senator who:

(a) knowingly fails to provide the statement and evidence 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 or, if appropriate, the Court of Disputed Returns.

(6) A message be sent to House of Representatives to acquaint it with this resolution.