Scott Ryan (Victoria, Liberal Party, Special Minister of State) Share this | Link to 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(v) of the Constitution, or for any other reason, there is a vacancy in the representation of South Australia in the Senate for the place for which Robert John Day was returned;

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

(c) whether, by reason of s 44(v) of the Constitution, or for any other reason, Mr Day was at any time incapable of sitting as a Senator prior to the dissolution of the 44th Parliament and, if so, on what date he became so incapable;

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

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

This is not a matter I expected to deal with at any point in my ministerial career, nor is it one that I relish. But it is a very important matter and one that has been given due attention. I would like to outline to the Senate the matters involved and the course of action taken by the government in dealing with them. As the President has outlined, I have provided the President with a statement of facts regarding the issue and the documents relevant to determining the advice received by the government. I do not intend to restate those as the President has tabled them in this chamber. The course of events, however, is a matter I wish to outline. I should clarify at the outset that my references to legal advice from the Australian Government Solicitor and Mr David Jackson QC referenced in this speech are not a waiver of the Commonwealth's privilege in that advice.

My involvement in this matter commenced as a consequence of my being sworn in as Special Minister of State on 18 July. I should say that matters prior to my swearing in are not from my direct experience, but I will set out a short statement of facts. My colleague Senator Cormann will, in the speech that follows, provide further details.

In January 2014, then Senator elect Day indicated he did not wish to use the Gilles Street electorate office vacated by a defeated senator as his own electorate office. Instead, he proposed that he use a building he then owned as his electorate office. This is the Fullarton Road property in question. Following advice, then Special Minister of State, Senator Michael Ronaldson, indicated the Commonwealth's willingness to consider this request upon certain conditions being met, confirming the verbal advice from Senator Day that his interest in the building had been disposed of. In October 2014, Senator Ronaldson wrote to Senator Day, and Senator Day accepted the terms of the agreement.

In November 2014, the Department of Finance undertook a title search, which confirmed the property was formally transferred to Fullarton Investments in September 2014. In February 2015, heads of agreement were executed for Senator Day's electorate office. Senator Day moved from the Commonwealth parliamentary office to the Fullarton Road office in April 2015. On 1 December 2015, the lease for the electorate office was formally executed. The office was to be rent free from 1 July 2015 to 14 August 2016, or earlier if the vacant Gilles Street electorate office was sublet by the Commonwealth.

On 2August 2016, Senator Day was declared re-elected at the 2 July election of the both houses of parliament. On 4 August, Senator Day approached me regarding the lease, including the matter of payment of rent. I indicated I was not familiar with the details and would look into it. On 7 August, Senator Day responded to me raising and dismissing any concern with section 44(v) of the Constitution. This is the first time I recall section 44(v) being raised with me. Over subsequent days I looked into the matter. My office met with officials from the Department of Finance regarding the background to the terms of the lease, including being made aware of the key fact that no rent payments had been made but also that the Commonwealth became liable for payments from mid-August.

On 16 August, I met with Senator Cormann, as the former Special Minister of State, who outlined his decision that no rental payments were made. On 18 August, a further detailed discussion was held between myself and officials regarding the lease and specifically the possibility of an issue arising with section 44(v) of the Constitution. Following this conversation, I made contact with the Attorney-General later that morning. I explained the situation and facts. Senator Brandis asked for further information to allow him to form a preliminary view.

Later that morning, I subsequently informed the office of the Prime Minister, by telephone call to his Chief of Staff, that there was an issue with respect to the electorate office of Senator Day, that there were potential issues about which I had contacted the Attorney-General, that I was seeking advice and that if this matter was raised it was to be referred to me. I subsequently mentioned to the Prime Minister that I had a conversation with his Chief of Staff, outlined the terms of that conversation and that matters that related to this were to be referred to me.

On 23 August, I met with the Attorney-General regarding the matter. He recommended that advice be sought from the Australian Government Solicitor. On 24 August, the Attorney-General's office advised that more information was required and that I should write to Senator Day requesting this. On 26 August, I wrote to Senator Day and on 29 August he responded. This correspondence is included in the materials passed to the President and tabled. On the same day I received it, the response from Senator Day was forwarded to the Attorney-General's office for transmission to the Australian Government Solicitor.

At this point, I should also mention that I took a brief period of personal leave from the chamber due to the arrival of my second son, Benjamin, on 25 August 5. On 8 September, the Attorney-General's office informed that the Australian Government Solicitor required further information from Senator Day, specifically a copy of the vendor finance agreement between Fullarton Investments and Senator Day.

At this point, I need to declare another personal matter. On Thursday, 15 September, I had to take unexpected and urgent personal leave, departing parliament around lunchtime, prior to question time, due to the emergency hospitalisation of my newborn son. I returned to duties the following week.

On 20 September, I requested a copy of the vendor finance agreement from Senator Day. This was received from Senator Day on 26 September. On 4 October, the Attorney-General informed me that he had received preliminary draft advice from the Australian Government Solicitor. The advice was not conclusive. We discussed the matter and agreed that, given the potential seriousness of the matter, an opinion should be sought from an eminent constitutional silk. The Attorney-General recommended Mr David Jackson QC.

The Attorney-General and I briefed the Prime Minister in detail about the issues and the legal advice later that day. It was agreed that eminent external advice would be sought from Mr Jackson, as advised by the Attorney-General.

On 7 October, following verbal advice on 5 October, I formally advised the department to terminate the lease on Senator Day's electorate office and the Attorney-General briefed Mr Jackson to advise on the matter. I wrote to Senator Day and spoke to him informing him of both these matters. I specifically outlined the concerns regarding section 44(v).

At this point, I would like to highlight that these matters were determined, acted upon and communicated to Senator Day on Friday, 7 October prior to the resumption of parliament the following week. This demonstrates the absolute integrity and bona fides of the government in dealing with this matter.

On 12 October, via the Attorney-General's office, Mr Jackson requested further information regarding the Day family trust. I wrote to Senator Day requesting this information. On 25 October, as no response had been received from Senator Day, I called him with the Attorney-General present. I made another request from the information. Senator Day outlined that he had been occupied with personal matters and had not been able to do so yet, but he indicated he would do so in coming days. Later that day he provided the information requested, which was passed on to Mr Jackson.

On Thursday, 27 October after 5 pm, the Attorney-General's office received the advice from Mr Jackson. At approximately 6.30 pm the Attorney-General made contact with me and forwarded the advice. He indicated that he had also spoken to the Prime Minister. On the morning of Friday 28 October, a teleconference was held between myself, the Attorney-General, the Minister for Finance and the Prime Minister. It was determined to refer the matter to the Senate by communication with the President of the Senate that day.

Later that morning, the Attorney-General and I made contact with the President of the Senate to outline the matter and apprise him of the issues. I wrote to Senator Parry to formally communicate this. Following this, I also made contact with Senator Day outlining the receipt of the advice and the communication of the issues to the President of the Senate.

This is a complex legal and constitutional issue. There is not a great deal of jurisprudence on section 44(v). The only significant authority is Sir Garfield Barwick's judgement in Webster's case. This issue does not relate to a direct pecuniary interest because Senator Day disposed of his interest in the building. It relates to the financial arrangements regarding the building and the lease for the electorate office with the owners. From the inquiries made and the advice received, the only source of income for Fullarton Investments appears to be the rental payment by the Commonwealth under the lease and rental, if any, payable by other entities in occupation of the Fullarton Road property. Fullarton Investments is thus dependent upon the Commonwealth rental payments under the lease to enable it to pay the amounts falling due from time to time to NAB, pursuant to the mortgage to NAB and pursuant to its arrangement with B&B Day Pty Ltd. Senator Day is a beneficiary under the Day Family Trust, the trustee of which, B&B Day, is also liable to NAB for those obligations. Senator Day had given a guarantee and indemnity to NAB for the performance by B&B Day of its obligations under the facility agreement. If, as happened, the Commonwealth does not pay the rent to Fullarton Investments, effectively he has to pay. These facts lead to a conclusion that an indirect pecuniary interest within the meaning of section 44(v) of the Constitution may exist. But this is a matter for the court to determine, not myself as minister, not the government and not the Senate.

To bring my contribution to a conclusion, while the government has received advice, it is important to note that this is not determinative. I am not able to make a determination on whether there has been a breach of the constitution in either a personal or a professional sense—not being a lawyer—nor in a formal sense as a decision-maker. No decision of the government or this chamber can determine the matter. This is rightly and properly a matter for the court to determine. As I have outlined to the chamber, without jumping to conclusions, without prejudging serious issues and without attempting to determine complex constitutional matters, the government has taken every step to explore this matter, seek further facts and then take the appropriate steps to bring these matters to the appropriate body for consideration—that is, this chamber—under section 376 of the Electoral Act. The only party that is competent to determine this matter is the court. Accordingly, I move the motion to allow the court to consider the matter and make a determination.

Mathias Cormann (WA, Liberal Party, Minister for Finance) Share this | Link to this | Hansard source

I speak in support of the motion and, in so doing, seek to provide some further context. I was appointed Acting Special Minister of State on 29 December 2015. A few hours after that appointment, that same day, I received a letter from then senator Bob Day by email in relation to arrangements related to his Fullarton Road electorate office. I will table this letter and my reply at the conclusion of my remarks. This is, incidentally, the only correspondence between then Senator Day and me in relation to his electorate office at 77 Fullarton Road, Kent Town.

The 29 December 2015 approach by then Senator Day in relation to his electorate office was, I believe, the first time I became aware of the arrangements put in place in relation to then Senator Day's electorate office. I was told that: (1) then senator Bob Day had occupied the premises at 77 Fullarton Road, Kent Town, as his electorate office since April 2015 after relevant a heads of agreement had been executed in February 2015; and (2) a lease agreement with a commencement date of 1 July 2015 was later executed on 1 December 2015, although, consistent with relevant terms and conditions in the lease, no rental payments were made.

It is important to note here that at the time of executing either the heads of agreement in February 2015 or the lease on 1 December 2015 the Department of Finance was not concerned that then Senator Day still had any interest in the 77 Fullarton Road property. Specifically, former special minister of state Michael Ronaldson had agreed to enter into the heads of agreement and the lease on the express basis that he had satisfied himself that: (1) then Senator Day no longer had an interest in the 77 Fullarton Road property—this was expressly confirmed by then Senator Day and also confirmed by the department through relevant title searches at the time—and (2) there would be no net cost to the Commonwealth in entering into the heads of agreement and the lease compared to the scenario where then Senator Day had accepted the earlier request and preference by the Department of Finance to occupy the electorate office premises vacated on 30 June 2014 by then former senator Don Farrell.

As early as October 2014, former special minister of state Michael Ronaldson had already imposed a number of terms and conditions on then Senator Day for the establishment of his electorate office at 77 Fullarton Road; specifically: (1) to pay, himself, for any necessary upgrades to bring the Fullarton Road property to government standards; and (2) no rent would be paid by the Commonwealth for the electorate office at 77 Fullarton Road until either the Don Farrell office had been sublet or the lease on that office came to an end on 14 August 2016, whichever was sooner.

In his 29 December 2015 letter to me, then Senator Day complained that over a period of 18 months since he took office and had declined to occupy the Farrell office the department had not been successful in subletting that office and that as a result, in addition to having paid, himself, for the upgrade of his electorate office, he had also been forced to pay rent for it out of his salary since moving into the 77 Fullarton Road premises in April 2015. He requested that the department now pay rent for the electorate office from 1 July 2015, being one year after the beginning of his term as a senator for South Australia and the commencement date of the lease.

In terms of my approach from that time, given it is the department's responsibility to provide an elected member or senator with appropriate office accommodation, given that then Senator Day by then had occupied the 77 Fullarton Road property since April 2015, with a 1 July 2015 commencement date for the lease of that property, given all relevant property title searches and Senator Day's express advice to the department that he no longer had any interest in the 77 Fullarton Road property, and subject to satisfactory evidence of the rental payments made as claimed by then Senator Day being provided to the Department of Finance, I was prepared to agree to this request. However, despite subsequent repeated requests by the Department of Finance, then Senator Day did not provide any evidence of rental payments which he asserted in his letter to me he had made. Instead, information he subsequently provided to the department for the first time about vendor financing arrangements underpinning his sale of the 77 Fullarton Road property and related financial arrangements caused concern about whether then Senator Day in fact remained connected to the Fullarton Road property.

In dealing with then Senator Day's ongoing requests for rental payments to be made, the department asked him whether then Senator Day had any interest in the lease agreement between Fullerton Investments and the Commonwealth and whether this could contravene section 44 of the Constitution. Then Senator Day denied any interest in the lease agreement and any section 44 implications if the government were to pay rent to the landlord at the 77 Fullarton Road property.

Importantly, subsequent to that—and aware of all the information that had emerged by then—on 18 February 2016, the Department of Finance advised me that it would be open to me to approve the payment of rent for the Day electorate office going forward from 1 March 2016. However, when asking to put in place this payment, further information came to light—namely, that the bank account to receive the rental payments was an account linked to then Senator Day. Given this, a conscious decision was made that the Commonwealth would not pay rent to the owners of the 77 Fullarton Road property in the circumstances, neither by way of reimbursement for the period from 1 July 2015 nor prospectively from 1 March 2016. In fact, at no stage during then Senator Day's occupation of the 77 Fullarton Road property as his electorate office did the Commonwealth pay any rent for those electoral office premises. I understood at the time that the non-payment of rent meant that any potential breach of section 44 of the Constitution had been avoided. Indeed, at no point did I receive any advice from the Department of Finance that the lease signed on 1 December 2015 in itself and in the absence of rental payments could cause a potential breach of section 44 of the Constitution.

In the meantime, on 8 May the general election was announced for 2 July 2016, and the government subsequently assumed caretaker mode. On 2 August 2016, then Senator Day was declared re-elected. On 4 August, then Senator Day again approached the government to complain that the rent for his electoral office had not been being paid by the Department of Finance. Given the renewed request for rental payments and the fact that from 14 August 2016 rent was due to be paid by the Commonwealth under the terms of the lease, the government decided to seek formal legal advice. Senator Ryan has gone in some detail through the relevant time line and decision points since. When then Senator Day decided to pursue this issue again after his re-election on 2 August 2016, and given that the 14 August 2016 deadline under the lease was approaching, based on all the information the Department of Finance had accumulated by then, proper legal advice was able to be sought, with eminent independent legal expert David Jackson QC ultimately advising the government on 27 October 2016 that, in his opinion, the lease executed on 1 December 2015, in all the circumstances which had emerged since, in itself and even without rental payments being made was a breach of section 44 of the Constitution; specifically, in the context of all the new information the about the selling, financing and loan arrangements which had subsequently emerged. Ultimately, whether this is indeed the case is a question which has yet to be settled and can only be settled by the High Court, assuming the Senate refers this matter to the court for its consideration. That is why it is appropriate for the Senate today to refer this matter to the High Court to settle the constitutional position in relation to this issue.

In conclusion, and by way of a general point about how this matter was handled by the government and specifically by me, I would add this point: special ministers of state work in a non-partisan and confidential manner with members and senators from all sides of politics to facilitate their office and staff arrangements, among other things. Then Senator Day is not the only one who challenged an initial finance department proposal or preference about where their electorate office should be located. Special ministers of state generally and, as appropriate, work with parliamentary colleagues in a non-partisan fashion to try and find appropriate solutions within the rules to help ensure that all of us can do the job we were elected to do, to the best of our ability. My approach as special minister of state in dealing with colleagues was to always operate in good faith on the information provided to me by members and senators. In relation to then Senator Day, the information which has emerged since the lease for his electorate office was first executed should now be reviewed by the High Court. Only the High Court is in a position to settle the constitutional questions raised by the legal advice the government received about these matters on 27 October 2016 and which the government referred to the President of the Senate the next day. That is why I commend the motion to the Senate.

I table the two documents that I flagged earlier.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Mr President, this morning you tabled information which raises complex and difficult questions for the Senate to resolve. The government has come to the view that the eligibility of Mr Day to have been elected to this chamber is in doubt. Given the complexity of these issues, we agree it is desirable to send this matter to the High Court so that it may, as the Court of Disputed Returns under the act, resolve these matters beyond any doubt. Reference of this matter to the High Court sitting as the Court of Disputed Returns protects the interests of the parliament and the integrity of our electoral system. That is why this provision is in the Electoral Act, it is why we believe the government has done the right thing in moving this motion, and it is why the opposition will be supporting it.

Before I turn to the details of the motion before the Senate, I want to make this point: the opposition—and indeed, many Australians—believe that there are serious questions to be answered about the conduct of ministers of this government in this matter: who knew what, and when. How can it be that a government would contemplate, let alone enter into, an arrangement that appears to have left a senator ineligible to serve and, seemingly, ineligible to have been elected? What is clear is that this government was prepared to repeatedly turn a blind eye to Senator Day's office arrangements to avoid losing a trusted Senate ally. This is a mess of the government's own making. However, these are questions for another time, given the gravity of the motion before the chamber. For the purpose of this vote, the focus now needs to be on resolving the referral to the High Court so that these fundamental issues relating to the composition of the Senate can be resolved.

In the case of Mr Day, there are three substantive questions set out in the motion. The question at paragraph (a) goes to the heart of his eligibility to be chosen as a senator. As you know, Mr President, section 44 (v) of the Constitution provides that any person who:

has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Serious questions arise about whether Mr Day was ever eligible to be elected as a senator for South Australia. The facts as we now know them suggest that, from his first election to this place in 2013 and before he took up his seat in July 2014, Mr Day was seeking to enter into an arrangement with the Commonwealth through the Department of Finance to rent his property at 77 Fullarton Road, Kent Town Adelaide.

The government has advice that the actions of Mr Day in structuring the ownership and payment for the property at Fullarton Road in the way he did created an indirect pecuniary interest in an agreement with the Public Service of the Commonwealth. On this basis Mr Day was incapable of sitting as a senator from the time of the agreement and, crucially, was arguably incapable of being chosen as a senator at the election on 2 July.

Whilst it was appropriate that the President tabled this morning some of the information the government has in its possession, it is still not clear that all relevant information is on the public record. This is a concern for the Senate, as the Senate should have all the relevant information before it in making this decision.

We must also ensure that the Court of Disputed Returns has before it all relevant information to enable it to best resolve the questions that the Senate refers. We believe it is essential that the government confirms that it will provide to the court all of the documents that were given by it to the Queen's Counsel who was asked to advise on the eligibility of Mr Day. The mere fact that such documents were thought to be of sufficient import to be given to counsel strongly suggests they should also be given to the court.

Whilst the government has tabled a range of information this morning, many senators are still at a considerable disadvantage in this debate, as we have not seen the legal advice that has led the government to introduce this motion. We have not seen the advice from David Jackson QC that brings the relevant facts together and analyses them in light of the provisions of section 44(v) of the Constitution, so members of this Senate are being asked to make a decision to refer a question relating to the membership of this chamber to the High Court without having all the information that is required.

This could have and ought to have been handled very differently. Several years ago a question arose relating to Senator Scullion and this same provision—and I am not saying this to impugn Senator Scullion in any way. Senator Scullion himself raised the issue in this place by writing to the President identifying the possibility that a contractual relationship between his family company and the Commonwealth might put him in breach of that section of the Constitution. Legal advice from counsel was obtained and tabled in this chamber, so all senators could understand the issues. This enabled the Senate to deal with the matter appropriately.

As I have made clear both privately and publicly to the government, the opposition will be supporting this referral. We believe it is the responsible thing to do. But I emphasise that the approach taken in the case of Senator Scullion would have been far preferable. It would have allowed senators to make a truly informed decision on this referral. It would have allowed greater public transparency around the matters which are at issue in Mr Day's case, matters about which there is considerable and understandable public interest.

The government has advice from a leading constitutional lawyer that could assist all senators. The advice relates to a question that is a matter for the Senate—not for the government alone—and it is extremely disappointing that the government will not assist the Senate by providing this advice. On such an important issue the government should show us this advice.

Whilst the opposition is, as I said, disappointed that the government remains unwilling to provide senators with the advice that led the government to conclude that this matter needed to be the subject of the very motion we are debating, the opposition does acknowledge the government's decision to frame the resolution broadly. Question (a) asks the court to consider not just the prohibition on direct or indirect pecuniary interests in section 44(v) of the Constitution but also whether Mr Day was ineligible for any other reason.

This is of importance. If we look at the Wood case, we see that the original challenge to Mr Wood's election in the Nile v Wood proceedings was not founded on his citizenship. This aspect arose later. Whilst it appears that there is a serious prospect that Mr Day was incapable of sitting as, or of being chosen to be, a senator due to the very unusual arrangements that were put in place with respect to his electorate office, it is not necessarily clear that this is the only reason he may have been ineligible to be a senator.

Questions remain as to Mr Day's solvency, and there are questions relating to Mr Day's success in securing a government grant for an organisation of which he was a director. It is wise for the Senate to not construe this referral narrowly. Whilst determining Mr Day's eligibility to serve in the Senate is an important first step, determining the consequences of his ineligibility is also crucially important. This is especially so given Mr Day's purported resignation last week. Again, I put on record our appreciation of the government's willingness to draft the relevant question broadly.

From the facts, as set out by the government, the trigger for Mr Day's ineligibility occurred on 1 December 2015 when the Department of Finance entered into a lease for Mr Day's electorate office with Fullarton Investments Pty Ltd. It appears this lease continued in force until terminated by the Special Minister of State, Senator Ryan, on 7 October this year. If this view were to be accepted by the court, it would follow that Mr Day was, in the words of section 44 of the Constitution, incapable of being chosen as a senator in the election on 2 July.

This would mean that Mr Day could not simply be replaced using the mechanism for casual vacancies set out in section 15 of the Constitution. If Mr Day had never been validly elected as a senator, he could not vacate a seat he had never properly held. If he were incapable of being chosen on 2 July, it must be determined who the people of South Australia actually chose from the eligible candidates at the election. It seems likely a recount will be necessary, but just how to conduct such a recount is a matter that the court would need to determine. This matter is further complicated by the changes to the voting system for the Senate made earlier this year. It will be a serious matter for the court to consider.

When Mr Wood was found ineligible for election, his below-the-line votes were distributed according to second preference. However, the issue of how to treat above-the-line votes for the Nuclear Disarmament Party ticket also arose. Section 168 of the Commonwealth Electoral Act required then, and still requires now, that, in order to have a group ticket, a party must have two or more candidates. The ineligibility of Mr Wood meant that the NDP did not meet that requirement.

Given the voting system as it stood at the 1987 election, if the ticket had been struck out, all votes given to that ticket would have been discounted. However, following the changes made this year, section 239 of the Commonwealth Electoral Act now provides that to vote above the line for the Senate a voter must write at least the numbers 1 to 6 in the squares above the line. The ballot paper clearly states that to vote above the line a voter should number at least six boxes above the line. This means that if the Family First group ticket box is invalid, due to the combined effects of Mr Day's ineligibility and the operation of section 168, the votes of Family First above-the-line voters can still be counted by allocating them to the party that received the second preference.

Question (b) asked the court by what means and in what manner the vacancy should be filled. These are not simple matters. The interaction of above-the-line preferences and the requirements of section 168 have not yet been considered by the courts. These are issues we can expect that the court will have to consider carefully in the event that Mr Day was, in fact, ineligible to be chosen.

The third substantive question in the motion before the chamber asked the court to consider whether Mr Day was ineligible to sit as a senator in the 44th Parliament. I indicate that this is not a question that the opposition sought to have included in the motion but we accept that it is the government's preference to so include it.

Questions relating to the composition of this chamber go to the heart of representation in our democracy. Earlier this year we spent many hours debating what the rules for electing senators should be. It is unfortunate that we now find ourselves in the position of having to seek the guidance of the High Court to clarify who was properly chosen to sit in this chamber. It is a rare and unusual occurrence for this to happen. As I indicated at the outset, there are unresolved questions about how this situation arose. Whilst I do not intend to examine these in the course of this contribution, the opposition does intend to take seriously its role in scrutinising the decisions of the government that have led us to this point. They may also be reason for this Senate to look again at the processes around nominations and vetting candidate eligibility. Again, those are issues for another time. For now, I indicate that the opposition supports the referral of this matter and looks forward to the High Court's consideration and decision.

Stephen Parry (President) Share this | Link to this | Hansard source

Thank you, Senator Wong. In your speech you said that Senator Day purportedly resigned last week. It may just be a misuse of phrase, but he did resign and I tabled the documentation this morning.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

by leave—I was actually making a legal point, Mr President, because he was not a senator then. It was not a suggestion that you, as President, had done anything other than communicate the resignation.

Stephen Parry (President) Share this | Link to this | Hansard source

Thank you. Senator Waters.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

We are clearly in uncharted waters. The Greens accept that it is appropriate that the High Court should rule on the eligibility of Senator Day, given his apparent financial dealings with the Commonwealth and, perhaps, also the question of his own solvency, as well as ruling on the appropriate method for his replacement. So the Greens will be supporting this motion. We support the rule of law and the processes laid down in the Constitution to ensure that members of parliament have no conflict of interest between private and public interests when voting in this place on issues of national significance.

Senators, no doubt, will have heard the Greens raise these issues prior on the need for an anticorruption watchdog to oversee the federal parliament and the Public Service. You may well be tired of us sounding like a broken record; we are tired of unfortunately continuing to have cause to raise this issue. We will continue to raise it until this parliament joins the other state and territory parliaments around the country in establishing an anticorruption authority. In fact, the presence of a federal ICAC might even have prevented this situation from arising in the first place. Senator Day might have been warned that his actions could give rise to a perception of a conflict of interest, if not an actuality; the Department of Finance might have been more forceful in making it clear to the government that the leasing of an office that the senator had a proprietary interest in should in no way proceed; and, most importantly, an anticorruption commission would have influenced the decisions of the special ministers of state, who, apparently, overrode their department's advice and decided to give the helping hand of Senator Day's vote further assistance.

We know that the double dissolution did not go as the government had hoped, but the fact is that this whole situation stinks, and what looks like the government's deliberately ignoring the advice of the department in order to keep a vote in the bag is a very bad look indeed. It is no surprise that the public has such a low opinion of politicians when this is the sort of betrayal of public trust that we see. This is exactly why we Greens have, for the last three parliaments, proposed the establishment of a national ICAC, first under then Senator Bob Brown, then again under then Senator Christine Milne and in this parliament in the name of Senator Richard Di Natale.

An anticorruption watchdog, clearly, would regulate the behaviour of MPs. As well as sanctions for breach, its mere existence would improve the quality of conduct in this place. We have seen, sadly, the atrocious record of the ministerial code of conduct, and, voluntary as it may be, we know that it is still meant to be adhered to by ministers in this place. Sadly, it has been shown to be a toothless document that is not enforced by this government, or the last for that matter. The ministerial standards require a cooling-off period of 18 months for any lobbying or advocacy activity, but we have seen the former minister for resources, Ian Macfarlane, going to be a lobbyist for the Queensland Resources Council not 12 months after having been the resources minister; Martin Ferguson, go on to become a lobbyist as chair of APPEA one month after leaving this place; and Andrew Robb, who was just appointed as a consultant to a Chinese company operating the Darwin port six months after being trade minister. Clearly, the ministerial standards are too weak.

This is exactly why we need to not only strengthen them but also to introduce a national ICAC. As I said, this will have the effect of not only giving MPs the assurance of some advice on whether grey areas should be pursued but also will also ensure a higher standard of conduct in this place. If we had an anti-corruption watchdog, the public would have been able to know how long this government knew about the potential cloud over the validity of Senator Day's election and re-election. Instead, we see continued dodging by this government about when they knew, what they knew, why they did not act earlier and why, indeed, they did not act upon the department's advice not to enter into that lease.

If we want to prevent constitutional dilemmas, the regard that the public has for politicians and reduce the possibility for misconduct in public office then we need an overhaul of our anticorruption laws and we need a federal ICAC. We support this reference and we urge all parties to support the Greens' bill to set up a federal anticorruption body.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I was not going to participate in this debate, but I cannot let that last speech go by. There is no imputation of corruption here, and it is utterly disgraceful of a senator to suggest there is. Former Senator Day is a good and decent man. What he was trying to do in relation to the arrangements with his office was save the taxpayers money and provide a better working environment for his staff. There is no imputation of misconduct either, and the suggestion of linking it to a federal ICAC is utterly disgraceful.

This is a complex legal question: whether or not he was in technical breach of the Constitution in relation to the guarantee of the loan on the office. That is the issue. There is no legal certainty about this, as Senator Ryan pointed out. This is a matter for the court, and, until the court decides this, there should be no stones thrown. I am very confident that the court will come back and say this is too remote a pecuniary interest to actually be in breach of the Constitution, but in any case it is absolutely not corruption.

Derryn Hinch (Victoria, Derryn Hinch's Justice Party) Share this | Link to this | Hansard source

Today we have had both the government and the opposition expressing concerns about the eligibility of two senators. I do support the Senate taking the matter seriously and will support it. Nobody should stand for office when ineligible, and parties should be thorough in vetting their own candidates. The government and the opposition have focused on the integrity of the electoral process as guided by section 44 and other relevant sections of the Constitution, but I think there is another element of this matter raised today to consider: dual citizenship. I want to foreshadow that I will lodge a notice of motion that there should be a review of all senators' and members' eligibility based on their citizenship at the time that they were elected this year and at previous elections.

Katy Gallagher (ACT, Australian Labor Party) Share this | Link to this | Hansard source

I welcome the opportunity to speak briefly to this motion. As outlined by Senator Wong, the opposition will support this motion, which seeks to refer pursuant to section 376 of the Commonwealth Electoral Act a number of questions about the qualification of Mr Day to the Court of Disputed Returns. We do so on the basis of due and proper process, a concern for the integrity and stability of our parliamentary system and the need for certainty about the lawful status of individuals who sit as senators representing the Australian people in this place.

The opposition's overriding concern is to resolve these complex matters in an orderly manner with an eye to protecting the institutional norms of the Senate and the integrity of electoral law in this country. The role of the Senate in matters of this kind is spelled out in the Commonwealth Electoral Act. Section 376 of the electoral act gives the Senate the power to refer questions about the qualification of a senator or in relation to vacancy to the High Court carrying out its function as the Court of Disputed Returns. Section 377 provides that the President of the Senate:

… shall transmit to the Court of Disputed Returns a statement of the question upon which the determination of the Court is desired, together with any proceedings, papers, reports, or documents relating to the question in the possession of the House in which the question arises.

It is worth remembering that, while questions about the qualification of senators were originally the sole jurisdiction of the Senate by virtue of section 47 of the Constitution, successive enactments since the passage of the 1902 version of Commonwealth Electoral Act have had the effect of largely transferring this power to the courts. While there are questions about what residual powers this place might still have in these matters, I think we would all concede that judicial resolution of questions relating to qualification of senators and disputed returns has the advantage of removing some elements of the political calculus that potentially attend and potentially colour parliamentary adjudication.

Notwithstanding the progressive transfer of jurisdiction to the High Court, the Senate's power of referral in this matter is significant. Where a motion of this—thankfully rare—kind is proposed, the Senate has a role to consider whether the known circumstances are sufficient to reasonably generate the questions of the sort that warrant a referral under section 376. The Senate must act as a filter, determining whether or not there is adequate cause to involve the court.

In agreeing to this motion, the opposition has had regard to the facts as they are currently understood, the relevant provisions of the Commonwealth Electoral Act, relevant constitutional matters and the broader role of the Senate and its practice in exercising its referral powers in these matters. The opposition has determined that, on balance, the circumstances do reasonably and, in fact, necessarily generate the questions that have arisen and which appear in the motion, and that there is sufficient cause to involve the court.

The provisions contained in section 44 of the Constitution establish five grounds for disqualification, any one of which, where it is found to apply to a person, renders that person 'incapable of being chosen or of sitting as a Senator'. Odgers' Australian Senate Practice draws attention to the rationale of the disqualification provisions embodied in section 44. For the broader context, what Odgers has to say is worth repeating in full:

The rationale of these disqualifications provisions is that they prevent senators being subject to undue external influence which could prejudice their performance of their duties. A person having an allegiance to a foreign power could be unduly influenced by that power. A person under sentence for an offence is subject to the control of the executive government. An undischarged bankrupt or insolvent is subject to the control of creditors or the courts. A person holding an executive government position could be subject to undue influence by the executive government. The granting of a pension at the discretion of the executive government could obviously be used to buy allegiance of senators. A person having an interest in an agreement with the Commonwealth could similarly be subject to such undue influence, and could also be influenced by personal interest in performing the legislative duties of a senator.

Paragraph (a) of the Day motion seeks to put before the court the question as to:

… whether, by reason of s 44(v) of the Constitution, or for any other reason, there is a vacancy in the representation of South Australia in the Senate …

Section 44(v), of course, relates to disqualification on the grounds that a person has 'any direct or indirect interest in any agreement with the Public Service of the Commonwealth'. The question in paragraph (a) arises from the known circumstances available in the public domain and now with the tabling of certain documents by the President in this chamber this morning about Mr. Day's intention to seek to enter into an arrangement with the Commonwealth through the Department of Finance to rent his property at 77 Fullarton Road, Kent Town, Adelaide. The Senate, again through information in the public domain and through the tabled documents this morning, is aware that the government has received advice indicating that the arrangements Mr. Day put in place to rent his property in the way that he did could create a pecuniary interest in an agreement with the Public Service of the Commonwealth that engages section 44(v).

As Senator Wong has made clear, there is an asymmetry between the Senate's knowledge of all the Day matters I have just mentioned and the government's knowledge. Nor does the Senate have the benefit of the legal advice prepared by David Jackson QC and provided to the government as to how the facts interact with section 44(v) and what the High Court, sitting as the Court of Disputed Returns, might make of it all. This is all information that the government is uniquely placed to provide but, for whatever reason, has chosen not to. The Senate must be confident that a complete and comprehensive record of documents has been provided to this chamber in order to facilitate and support debate on this motion, but also in transmitting those same records to the Court of Disputed Returns as envisaged by section 377 of the Commonwealth Electoral Act.

Earlier, Senator Wong contrasted the handling of the matter before us with the handling of a section 44 matter in relation to Senator Scullion. In that case, the Senate was involved from the outset, it was given all the facts of the matter and was able to assess legal advice as to how those facts interacted with section 44(v). The proper course for the government to have followed in this matter would have been for it to have provided a complete statement of the facts as they were known and to have tabled in this place all the papers, documents and other information, including any legal advice, that it has received. Such an approach is not a mere courtesy on the part of the government but a fundamental obligation it has to the Senate in the performance of the Senate's accountability and scrutiny functions. It is also an important protection to ensure that vexatious or frivolous referrals are not sought from the Senate in the pursuit of some broader political objective. Given the Senate's role as a referrer and as a filter in these matters, the Senate is at a distinct disadvantage to fulfil its deliberative capacity by anything short of a full and timely disclosure on the part of the government.

This motion is not about accountability of the government to the parliament, but about the resolution of legal questions. I will return to these in a moment. However, the involvement of the government in some of the events that have led us to the point where we find ourselves today will remain of ongoing interest to the Senate.

Non-government senators should be debating this motion on the basis that the government have provided a full and comprehensive record of all of the documents available to them in relation to Mr Day's case. But we already know that is not the case, with their open refusal to provide their legal advice pertaining to the matters directly invoked by this motion. It is a legitimate concern for the opposition to raise these points and for the Senate to consider whether the Court of Disputed Returns will have before it all relevant information to enable it to best resolve the questions that will be referred. The reason for this concern is that the government have already indicated that they do not intend to provide to the court all of the documents that were given by them to the QC who was asked to advise on the eligibility of Mr Day. It is also entirely possible that there are other important documents in the possession of the government which should be transmitted to the court. Surely, in a matter of such constitutional importance, all efforts should be made to make sure the court is fully informed when it deals with the questions before it. The integrity of the process, the transparency of the process and the trust in the process demand nothing less.

Despite the concerns we have raised about appropriate access to information the opposition is satisfied, from the information available, that there are reasonable questions that the court needs to address in relation to section 44(v). The way in which the motion is drafted allows the court to consider other reasons that Mr Day may be found to have been incapable of being chosen or of sitting as a senator; that is, beyond the matter of the rental of the Fullarton Road property. This is appropriate. The matter of Mr Day's solvency and the awarding of a grant to North East Vocational College, of which Mr Day was a director, also offer up potential reasons for disqualification. The motion before us enables the court to examine these issues as it sees fit.

In the event that the court finds that there is a vacancy created as a result of Mr Day having been found to be incapable of being chosen as senator or to sit in the Senate, paragraph (b) of the motion asks the court to set its mind to both the means by which the vacancy has arisen and the manner in which the vacancy should be filled. The manner of Mr Day's ineligibility, should it be found by the court to exist, has significant implications for how the question of remedies might be adjudicated. As Senator Wong pointed out, in the event that the court determines that 1 December 2015 is the date on which Mr Day became ineligible as a result of the leasing arrangements that were put in place between the Department of Finance and Fullarton Investments, then it is open for the court to find that Mr Day was, from that point forward, ineligible to sit in the Australian Senate and was also incapable of being chosen as a senator at the 2016 election. In these circumstances, the prospect of Mr Day being replaced, not as a casual vacancy but through a recount, becomes a live question. Paragraph (b) of the motion permits the court to consider the method by which a recount would be conducted in such circumstances. It also leaves the court open to consider whether the Family First box on the South Australian Senate ballot paper was valid, given that the group ticket requirements could be found not to have been met by reason of Mr Day's ineligibility. If this line of reasoning were adopted, the court would be open to rule that above-the-line votes are to be allocated to the party that received voters' second preferences. These are all matters which, under this motion, sit appropriately within the ambit of the court.

These are serious matters with potentially serious outcomes. The opposition regards this motion as opening up the proper path towards their resolution.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I rise briefly to speak on this motion, seeing as this is of immense importance to the people in South Australia.

To be totally frank, Bob Day came to this place telling us that we do not need regulation and that we do not need public money being spent on business. What we now know, of course, is that Australians need stronger regulation of builders like Bob Day. We also know that he has had his hand in the till, seeking public money to pay for his apprentices through the trade's training school. Of course, there is also the issue of much discussion here today in relation to his electorate office. Hypocrisy and selfishness—this is what has caused chaos in this place today and that is why we are debating this motion.

I think the reality facing Bob Day is that he was blinded by his own sense of self-entitlement. I support the referral of this motion to the High Court. Bob Day has not just let himself down or his party down; he has let down the people of South Australia. I strongly support the comments of my colleague Senator Larissa Waters: it is time we had a federal anticorruption body—a national ICAC—so that there is a proper body that can oversee these issues, from which senators can apply for advice and so that we can clean up this entire mess.

Lee Rhiannon (NSW, Australian Greens) Share this | Link to this | Hansard source

I rise to support the comments of my colleagues Senators Larissa Waters and Sarah Hanson-Young. The Greens have considered the statement of facts issued by the Turnbull government on both former Senator Day and current Senator Culleton and will agree to both motions being moved today. The Day case puts a spotlight on the Abbott-Turnbull government. While the motion before us may be about former Senator Day, the government cannot duck scrutiny on this critical issue. The evidence indicates that the government's hands are not clean. We have heard a very good case put by my colleague Senator Larissa Waters about the need for a national ICAC. So many of these issues could have been referred to a national ICAC, if we had established one long ago. And then there is the very relevant issue of political donations. The disclosures from Mr Day about his companies throw some light on what has happened here but do not give a full explanation. In judging Mr Day's eligibility to be in the Senate, the spotlight does land on the coalition government, what they knew about the constitutional breach and when they knew it. But from the statement of facts that we have received and from the speeches that have been made here today this is still not clear.

What we do know is that the government have received critical advice from a constitutional expert, but they have not shared that with us. This will just add to people's suspicions about what is going on with the government. What are they trying to cover up? When we have these sorts of problems, we all know that we have to admit all evidence. We have to be fully honest and admit what the problem is, and then we can start to rebuild. But the government have not done that today. The government cannot put a ring fence around Mr Day and make out that is what it is all about. It is not just about Mr Day; it is about how this government operates. They knew there was a problem from the time of the 2013 election and also when Mr Day came here in 2014. Why did senior ministers ignore the advice of the Department of Finance? That is critical. Again, it has been referred to the High Court. What we have heard today opens up many issues which we as a Senate have a responsibility to deal with. The abuse of money, process and standards could well reach into the offices of the current Prime Minister and the former Prime Minister. What is the role of Senator Corey Bernardi? His name does come up when we read into how this issue played out with the building that Mr Day wanted to use for his headquarters. While the government was turning a blind eye to Mr Day's plans or was helping to facilitate them, what was the government getting in return? Again, this needs to be put on the record. What they were getting in return was a reliable supporter and a regular voter whom they could depend on. These are not unconnected issues. It needs to be put on the table that this is not just about the High Court. The genie is out of the bottle. We have to put everything on the table if we are to learn and carry out our work in a responsible way as senators. There is so much here that is related.

What makes the Day case even more breathtaking is that we know that Mr Day left more than 200 families in financial stress and with no home. Again, this has been forgotten in the debate. It is absolutely disgraceful; it is so central to what we are talking about. That is the position which Mr Day has left these people in. What was he about to rock into the Senate to do? It was to vote on the ABCC legislation—one of the most ruthless pieces of anti-worker, anti-union legislation that has come through this parliament in its many decades of operation. Here is somebody who was abusing people within our society who wanted a home. This is one of the main aspects of the construction industry, and he was abusing that. It is the area that needs to be regulated. But what did we just hear from the government about the ABCC? We already know that if there are problems in the union movement, if criminal acts have been taken, all the laws are there to deal with them. There has been ruthless propaganda to weaken the system of regulation, as my colleague Senator Hanson-Young identified so clearly. Senator Day came in here to weaken regulation. He hitched his wagon to the coalition to try and achieve that, and, meanwhile, he becomes the example, the poster child, of what happens when you rip away regulation. That is where this parliament, this government, should be concentrating in order to assist ordinary people who have been so ripped off.

But let us move on to some of the issues around political donations. The AEC records show that Mr Day's slackness was not confined to running a building company or the renting arrangements for his own office. A conservative estimate is that Mr Day and his companies donated more than $2 million to Family First. So Mr Day was spending the money from the companies, which should have been available to finalise the building of homes for those more than 200 families, on fast-tracking himself into the Senate—twice.

Stephen Parry (President) Share this | Link to this | Hansard source

Order, Senator Rhiannon. I have been fairly liberal in allowing the debate to range from the topic matter. You have consistently stayed off the key topic matter. You are speaking about the personal qualities or otherwise of former Senator Day. I have two concerns: firstly, you are not sticking to the subject matter, which the standing orders require, and, secondly, you are reflecting on a now member of the public who may not have the right to defend himself. Could I ask you to consider those comments as you continue your remarks, Senator Rhiannon.

Lee Rhiannon (NSW, Australian Greens) Share this | Link to this | Hansard source

Thank you, Mr President, for your advice, but I do understand that Mr Day, as a member of the public, does have the ability to challenge anything that I or anybody else says. So I think that is possible. I will move on, but I certainly stand by my comments that there are many more aspects to this issue than what will be dealt with by the High Court. The referral itself, which is what I have been dealing with, puts a spotlight on these other matters that a responsible Senate would deal with. As we know, the evidence suggests that Mr Day was aware of the possible breach prior to his election. We also know that concerns around section 44 were on the government's radar. It appears that the government ignored the advice of the Department of Finance in approving the questionable leasing arrangement. A relevant question is: how much did the government know before the 2016 election? We are still not clear on this despite speeches from more than one minister today. We are starting to feel that the fog is descending, rather than the clouds lifting, on this one.

On top of all this—and I am sure the President will not be happy about this—I will just make brief mention of the issue of the training grant. My colleague Sarah Hanson-Young has made reference to it. There is also a cloud over the interaction between the government and Mr Day on this issue.

At the moment, as I said, the Greens are pleased to support this. I think there have been very important contributions on the need for a national ICAC and political donations reform. And if this Senate is doing its job, we need to return to many other aspects of how the government interacted on this.

Question agreed to.

Stephen Parry (President) Share this | Link to this | Hansard source

Before I call you, Senator Brandis, I would indicate to the Senate that I was aware that the government, through the Australian Government Solicitor, has applied to the Armidale Local Court of New South Wales for three orders. There are certificates of orders from that court relating to Senator Culleton. Those three orders have been provided to me and I now table them.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to 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(ii) of the Constitution, or for any other reason, there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Rodney Norman Culleton 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.

On 7 September this year Mr Ian Bruce Bell commenced proceedings in the High Court of Australia against Senator Culleton. These proceedings had nothing to do with the Australian government and the government's only knowledge of them was from reports in the media. Nevertheless, in the course of those proceedings, Mr Bell issued a notice, under section 78B of the Judiciary Act 1903, stating that the proceedings raised a constitutional question. The Commonwealth was served with a section 78B notice on 28 September. The 78B notice relates to the consequences, under the Constitution, of a senator sitting while disqualified. The grounds of qualification are provided for by section 44 of the Constitution, which, among other things, provides that 'any person who has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer shall be incapable of being chosen or of sitting as a senator'.

It appears that, on or about 2 March this year, Senator Culleton was convicted in the New South Wales Local Court, at Armidale, of the offence of larceny under section 117 of the New South Wales Crimes Act. The offence of larceny under that section carries a maximum sentence of five years imprisonment. As we know, at the election on 2 July, Senator Culleton was elected to the Senate as a senator for Western Australia representing the One Nation party. On 8 August—that is, a month after the election and six days after the declaration of the Senate poll in Western Australia—Senator Culleton's conviction was annulled under the New South Wales Crimes (Appeal and Review) Act 2001. On 25 October, Senator Culleton pleaded guilty to the charge and the magistrate found the charge proven but dismissed it under the New South Wales Crimes (Sentencing Procedure) Act 1999. Notwithstanding the subsequent history of the matter, it is a fact that, at both the time of the election and the time of the declaration of the poll, Senator Culleton appears to be a person to whom the terms of paragraph (ii) of section 44 of the Constitution may apply.

After receiving the section 78B notice, I asked the Australian Government Solicitor to seek the advice of the former Solicitor-General on four questions relating to Senator Culleton's eligibility to be elected. Those questions were provided to the then Solicitor-General on 13 October. Early on the evening of Friday, 28 October, I was advised that the former Solicitor-General's opinion had been received late that afternoon and it was sent to me. In referring to the opinion, I do not waive the Commonwealth's privilege in respect of it. It is sufficient to say that, in view of its conclusions, I considered that I ought to notify the President of the Senate, which I did the following morning, Saturday, 29 October, and provided a copy of the opinion to him. I also took the view that, in fairness to Senator Culleton, I should notify him and provide a copy of the opinion to him as well, which I did later that day. I also took the view that I should make Senator Hanson, as the leader of the party of which Senator Culleton is a member, aware of these facts, which I also did that weekend.

It is enough to say that, plainly, an issue concerning Senator Culleton's eligibility to be elected has arisen under section 44(ii) of the Constitution. In such circumstances, the law provides for a procedure. It is to be found in section 376 of the Commonwealth Electoral Act, which provides that:

Any question respecting the qualifications of a Senator or of a Member of the House of Representatives or respecting a vacancy in either House of the Parliament may be referred by resolution to the Court of Disputed Returns by the House in which the question arises and the Court of Disputed Returns shall thereupon have jurisdiction to hear and determine the question.

Section 354 of the act provides that the High Court is the Court of Disputed Returns.

Also relevant is section 377, which provides:

When any question is referred to the Court of Disputed Returns under this Part, the President if the question arises in the Senate, or the Speaker if the question arises in the House of Representatives, shall transmit to the Court of Disputed Returns a statement of the question upon which the determination of the Court is desired, together with any proceedings, papers, reports, or documents relating to the question in the possession of the House in which the question arises.

After consultation with the President, the government has decided that a reference under section 376 is the appropriate course to follow. The relevant statement of the question is contained in the motion which I have moved. The only relevant documents would appear to be the court records, which you tabled a few moments ago, Mr President. It is, of course, a matter for the Senate, not the government, but since this issue first came to light as a result of the service upon the Commonwealth of the section 78B notice and was crystallised by advice received from the former Solicitor-General, it is appropriate for me to have made the President aware of the matter and for the government to place this course of action before the Senate.

Finally, I should say that the government makes no judgement on the merits or otherwise of Senator Culleton's case, either on the constitutional issue or on the criminal proceedings. Nor, should this motion pass, would it mean that the Senate had formed a view on the merits of Senator Culleton's case either. Neither the government nor, for that matter, the Senate is in a position to do so, and that is not the purpose of this motion. Under a system of government that respects the separation of powers, it is not the executive or the legislative branches of government that make those judgements; they are entirely a matter for the judicial branch. The purpose of this reference is merely to set in motion the process to enable that judicial resolution of the issue to take place. If the motion is passed, it would merely reflect the fact that an issue having squarely arisen as to the applicability to Senator Culleton of section 44(ii) of the Constitution, the Senate has referred the matter for decision by the appropriate arm of government, the courts, by the Court of Disputed Returns.

Rod Culleton (WA, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I want to put a few housekeeping rules and put the Senate on notice that this has all come as a great surprise. In response to the Senate, I rise in the Senate chamber today to state the situation as I have become aware of it, confirmed only this morning at a meeting of Senator Brandis. In fact, I have only just been handed further documents in the chamber before speaking. May I declare at the outset that, in my discussions with the Clerk of the Senate this morning, I was clearly informed that I have the right to exercise my vote in the Senate and continue to represent the people of Western Australia, as I was elected to do. I intend to dutifully and responsibly fulfil my commitment to each and every one of them while in this place each day I am privileged to remain here, see through my promises and honour my oath of allegiance to this nation.

The very nature of this situation confirms to me what Australians have seen in parliamentary representation for far too long. Parliamentary representatives who stand up and represent their constituents will always be under attack from within and without. That is all too often the nature of the political climate in this country. The preference in the party arena is for the conformity to just warm the seats for the respective parties, with no tolerance for true representation of constituents' interests. This is not a democracy and that is not in the interests of true representation in this place for all Australians. Certain parties believe they have a vested interest in the Senate seat. Their actions and reactions today reflect that vested interest in securing this Western Australian Senate seat, through which I was elected to serve my constituents in Western Australia for the next three years. Whether or not a concise vote is allowed in this chamber on this issue, it is clear from the reaction of many senators towards me today that their consciences are already strongly affecting their votes and their demeanour.

In due course, what has been going on behind closed doors will thoroughly be exposed, both the skulduggery and the acts of integrity and character—the mateship that separates the Australian national ethos in a league of its own, refusing to allow such acts of bastardry without challenge or an indication of support and solidarity. The media claims by those aligned with particular political parties that they would fund the spurious and frivolous challenge to the High Court, knowing the lack of substance involved, deserve contempt and not to be stamped with the authority of this chamber.

Coincidentally, a question from myself to the Senate that was subsequently referred to the Rules Committee of the High Court in October and questioned the legitimacy of the High Court itself has now been followed by this frivolous action, setting a serious precedent for every candidate who seeks to represent their state and the nation. Every candidate who stands for election in any parliament of Australia has a worrying precedent set here today—that is, any candidate who owes money or for any reason withholds money because of poor service or workmanship is open to charges of this nature being levelled against them during the critical period of their candidacy in order to remove them from the parliamentary position should they be elected.

Senator Brandis claims that this is a government matter to be resolved. He has, however, failed to offer any commitment regarding the government's responsibility to fund my defence and representation.

My colleagues in this chamber here today have the opportunity to right the wrongs and recognise that natural justice has not been served in the Court of Disputed Returns over these spurious charges, which were annulled. There was no conviction recorded on the matter, thereby acknowledging that they never existed. Because of double jeopardy, any further charges laid against me resulted in no conviction for larceny, but I made an agreement to accept the damages and the costs claimed by the truck driver for a single key.

In summarising, Magistrate Holmes at Armidale declared the matter as frivolous and declared me a man of good character, again refusing to record any conviction on the matter. I stand in this chamber today and ask my fellow senators to recognise the breaches of my privileges that have been clearly evidenced here and that this matter be referred to the Privileges Committee. In both matters under discussion the claims are both spurious and inaccurate. I do not claim, ever, to be a perfect man. Amongst imperfection, there was only one perfect man who walked this earth, and we remember that they lauded him one week and then brutally beat him and crucified him the next.

On Saturday 29 October Senator Brandis said he had been in contact with the High Court and that it had been brought to his attention that the contempt of my question is accurate. If that is the case, what are we doing here today without that issue of the High Court being first resolved? If, indeed, the High Court is out of order, as my question indicated and their own rules confirm, how can they preside over anyone? In his concluding observation, the recently-resigned Solicitor-General Justin Gleeson recorded in item 67, 'The current pleadings in the election petition proceeding are deficient and, in my view, should be endurable.' In other words, this action could run out of sight on a dark night. However, contrary to his statement that Court of Disputed Returns may be prepared by a single justice, my request is for a full jury trial, as is my right under the nation's Constitution. A case of precedent in such a matter in the High Court was set in Nile v Wood 1987 FC 87/063. I will table the document, with the leave of the Senate, along with my letter to the President, the time line of my events and the letter from the Hon. George Brandis with the attachment from the then Solicitor-General—obviously with the consent of leave.

We have a country in need of a moral and ethical Senate chamber and yet the most urgent call to this chamber this morning is to attempt to remove two senators who have worked determinedly to restore the constitutional rights of every Australian—a shameful indictment while 21 fathers suicide each week and numerous lives are lost to suicide across the country due to the unconscionable acts of foreign-owned bankers and their agents. When I and other members of this Senate and those of the House of Representatives came here, we swore an allegiance to the Queen. That means we stand for what she stands for and what every digger who has ever served stood for. They were prepared to lay down their lives to defend what she represents, and we too are called on to make such sacrifices and to take on the challenges and obstacles to freedom of true democracy. I hope and pray that I meet that challenge and fully intend to do so to the best of my ability.

To all of those who have sent the numerous messages of support and praise from right across the country and from my own state in Western Australia, I give my heartfelt thanks. I will share with you on record one I received just as I walked to attend this chamber: 'Good morning, Rod. I support you 100 per cent. What a great senator you will be when you get through this. Don't focus on the outcome; just face each issue bravely and honestly, exactly as you've done. The people are with you. My whole family supports you. You are destined to be where you are and to help expose the elite, unethical activities of the banks. With best regards.'

I have nothing further to say—sorry, I should not say that: I have everything to say, which was in my first speech and I will take nothing away from that. Thank you.

Stephen Parry (President) Share this | Link to this | Hansard source

Senator Culleton, you sought leave during your speech to table some documents.

Rod Culleton (WA, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Yes, I did.

Leave granted.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Can I just, by way of starting, clarify that the document being tabled is the legal advice the government received from the Solicitor-General?

Stephen Parry (President) Share this | Link to this | Hansard source

Senator Culleton, do you want to clarify the documents that you are tabling?

Rod Culleton (WA, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Yes, I am just tabling a time line of the events at Guyra, the opinion from Justin Gleeson and the letter from Mr Brandis.

Stephen Parry (President) Share this | Link to this | Hansard source

Thank you. To clarify that matter, it does include the document you are inquiring about, Senator Wong.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Thank you, Mr President. The opposition gave leave, and I am pleased the government did not demur on this occasion. It is a pity that Senator Culleton had to table the advice rather than the advice being provided, given the seriousness of the matter that is before the Senate. I again maintain the opposition's request, and I suspect there may well be other senators who would want it, for the advice provided to the government in respect of Mr Day.

I just want to make some very brief remarks in relation to the motion moved by Senator Brandis. Can I indicate at the outset that the opposition will be supporting the government's motion to refer the election of Senator Culleton to the Court of Disputed Returns. Can I say to Senator Culleton, through you, Mr President, that I understand this is a very distressing time for him personally. I also note his comments about not being provided with sufficient information. I would indicate to him that it was at the opposition's request that this debate occur some hours after the documents were tabled by the President because we thought all senators ought to have the opportunity, should they feel it necessary, to consider the facts of these matters before the motions were voted on.

The opposition is of the view that this is obviously a matter quite different from those matters relating to Mr Day. It is fundamentally a legal question as to the status of the legal position of Senator Culleton at the time of the election. The High Court in this matter is being asked to deal with some issues which are similar and some issues which are very different to the situation involving former Senator Day. Obviously the facts giving rise to this matter are quite different to the matters involving former Senator Day. However, the court is also being asked in relation to this matter not only to determine whether Senator Culleton is eligible to continue to sit or was ever entitled to be elected; it is also being asked to consider how to replace him should he be found ineligible to sit or incapable of being chosen.

I will make one comment on that point. The material difference between the two cases is that there were obviously three One Nation candidates on the Western Australian ballot paper at the election this year, so even if it were to be the case that the court finds Senator Culleton was ineligible to be chosen the very serious questions about the validity of the group ticket under section 168 of the Commonwealth Electoral Act that arise in the Day case do not appear to arise in this case.

It is an unfortunate day when the Senate finds itself having to refer one of the members of the chamber to the High Court. It is certainly not something we should do lightly. I make it very clear that the opposition make no judgement as to the merits of Senator Culleton's legal position. However, based on the information provided by the government and the facts in the public domain, we believe it is appropriate that the matter be referred. We look forward to the High Court's resolution of this issue.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens will support this motion to ensure that proper processes for the eligibility of elected senators as laid down in the Constitution are complied with.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

It is a very difficult time for me and the party but even more so for Senator Culleton. He has been a man who has stood up to represent his electorate, the farming sector and many other issues. But this motion is on the floor now and I must address it. I have always stood for honesty, integrity and the truth. The people deserve no less, especially from this chamber. It goes to the very heart of our democracy. This at hand is a question over Senator Culleton's eligibility to hold his seat in this place. When he was nominated for Pauline Hanson's One Nation as a Senate candidate, he stated that he was eligible to stand under the requirements of section 44 of the Constitution. I took that to be his oath, and his signature was witnessed by a JP.

My fellow colleagues and I support Senator Culleton, but we have seen on too many occasions politicians in this place and the other place who have not been accountable to the Australian people and I will not stand here and be of the same ilk. I believe that it should go to the High Court to make their ruling on this matter. I hope their findings are in his favour and I would dearly love to see Senator Culleton take his place here again as a One Nation senator. I believe that I have the support of my other senators. I know that Senator Culleton will not be too happy with what I have just said, but this goes to my integrity and my honesty. I have fought for 18 years to be on the floor of this parliament as a representative of the people and I cannot sit back and disregard what may have been a wrong judgement. But I will leave it up to the court to make the final decision. I seek leave to table this document.

Stephen Parry (President) Share this | Link to this | Hansard source

Do you want to explain the document, Senator Hanson?

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

The document is an application for candidate endorsement and it was filled out by Rodney Norman Culleton on 13 April 2016 and signed by him.

Leave granted.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I indicate on behalf of my colleagues, Senator Griff and Senator Kakoschke-Moore, that we will support this matter being referred to the High Court. Clearly an issue has arisen under section 44(ii) of the Constitution as to the eligibility of Senator Culleton to be a member of the Senate. It was initiated by a petition brought by Mr Bell and crystallised by the opinion of the former Solicitor-General, and I am grateful to Senator Culleton for providing me with a copy of the former Solicitor-General's opinion in relation to this matter. It has now been tabled. I want to have an opportunity to refer to that in the context of the remarks I will make.

It seems to me to be very clear that this is a matter without precedent. It is a matter where there is no authority directly on the question. It boils down to whether the conviction of Senator Culleton which was subsequently annulled was relevant at the time Senator Culleton nominated for the Senate. There are two arguments here that the High Court will ultimately need to deal with, and there are two competing interpretations of the effect of an annulment under the New South Wales Crimes (Appeal and Review) Act, as former Solicitor-General Justin Gleeson has indicated. The first interpretation of the annulment means that in law there was never a conviction, which is supported by section 9(3) of the New South Wales Crimes (Appeal and Review) Act. I seek leave to conclude my remarks later.

Stephen Parry (President) Share this | Link to this | Hansard source

You are in continuation automatically, Senator Xenophon. It being 2 pm we proceed to questions without notice.