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

There is one reason, and only one reason, why a motion under section 376 of the Commonwealth Electoral Act should be passed by this Senate, and that is that the Senate is of the view that, on the facts disclosed to it, it is appropriate to refer a senator to the Court of Disputed Returns. Section 376 gives statutory effect to section 47 of the Constitution, which provides:

Until the Parliament otherwise provides—

which it has done by section 376 of the Commonwealth Electoral Act—

any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises.

So, let us be very clear: this motion is being considered by the Senate and, given that it is being moved by the Leader of the Opposition and supported by the government, will be passed, because a question respecting the qualification of a senator, Senator Gallagher, has arisen. The reason it's necessary to make that point is that this procedure should not be used and cannot properly be used to provide political cover. I do not reflect at all on the integrity of Senator Gallagher. I don't doubt for a moment the accuracy and truthfulness of the statements she has made to the Senate. But the assertion that has come from Senator Gallagher and Senator Wong that Senator Gallagher plainly is not disqualified prejudges the very issue which the Senate, by this motion, has asked the High Court to determine. It cannot be right that the Senate is being asked to support a motion to refer a question relating to the qualification of a senator on the basis that there is no question. By passing this motion, as we will, the Senate is plainly determining, under section 47 of the Constitution and section 376 of the Commonwealth Electoral Act, that there is a question. It's not a question that reflects upon Senator Gallagher or her integrity or her circumstances, but I just make the point, because it's important to stress it: this motion places the issues that Senator Gallagher and Senator Wong have asserted before the High Court, sitting as the Court of Disputed Returns. It is for that court, not the opinion of the Labor Party's legal advisers, to dispose of the matter now.

The law as set down in the case of Re Canavan and Re Joyce and others has been settled by the court. The court's reading of section 44(i) of the Constitution is as clear as it is unforgiving. Those from the government and the crossbench who fell foul of section 44(i) didn't do anything wrong, and Senator Gallagher has not done anything wrong, but it is necessary that reasonable steps be taken. One of the issues that goes to the question of reasonableness is the question of timeliness. Even if it be accepted that Senator Gallagher took every necessary step, that does not dispose of the legal question, because the next question that arises is whether every necessary step was taken in a sufficiently timely way. And on that question will the issue of reasonable steps depend, on which I make no further comment in this speech, because it is not a matter for me or this chamber but for the court.

Finally, let us see now whether, in the other place, those Labor members of parliament—the member for Braddon, the member for Longman, the member for Fremantle and the member for Batman—take the same course. Because as is clear, manifest, on the face of the declarations that they have lodged with the Clerk of the House of Representatives, they had not renounced their dual British citizenship at the time of the 2016 election. In the case of at least two of them, we know that they did not initiate that process until after the writs for the election had been issued, notwithstanding that they had been endorsed more than a year earlier. The question that arises is when Mr Shorten knew about their circumstances that have now been disclosed. I'll say nothing more about it for the moment, but the government does expect that Mr Shorten will take the step in the House of Representatives that has been taken by the Leader of the Opposition in the Senate and refer those four members to the Court of Disputed Returns because, if he fails to do so, that raises very serious questions about Mr Shorten's own integrity.