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

For the information of senators, I also table letters sent to me by Senator Roberts and by the Leader of the Australian Greens, Senator Di Natale, requesting that I establish an audit of the qualification of senators under section 44(i) of the Constitution. Similar letters were sent to the Speaker of the House of Representatives. The Speaker and I have discussed these requests, noting that they do not fall within the remit of our offices. It is a matter for the Senate whether to take any action in relation to these requests.

Finally, I have received correspondence from lawyers acting on behalf of Rodney Norman Culleton, requesting the Senate to refer matters relating to Mr Culleton back to the High Court for reconsideration. I am advised that the Senate has no power to comply with this request. I table the correspondence together with that advice.

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

by leave—I move:

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 section 44(i) of the Constitution, there is a vacancy in the representation of Queensland in the Senate for the place for which Senator Matthew Canavan 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;

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

On the afternoon of Monday, 24 July, Senator Canavan approached me in my office in Brisbane to advise that he had been informed by the Italian embassy that he was an Italian citizen. Senator Canavan also informed the Prime Minister and the Deputy Prime Minister. In 2006, Senator Canavan was apparently registered with the Italian consulate in Brisbane on a register known as the AIRE, or Registry of Italian Nationals Resident Abroad. It seems this occurred as part of an application for registration made by Senator Canavan's mother. Senator Canavan did not authorise this registration to be undertaken on his behalf.

As I said in my press conference on 25 July, the government took advice from the Solicitor-General. Though this will of course be a matter for the court, it is the government's preliminary view that, given the circumstances in which Senator Canavan may have obtained Italian citizenship, he is not in breach of section 44 of the Constitution. However, as I also said on 25 July, the government believes it is appropriate to refer the matter to the Court of Disputed Returns to resolve any uncertainty. The government will seek a directions hearing at the earliest opportunity and will work to have the reference heard by the court on an expedited basis. The government has acted swiftly to address this matter. I announced our intention to refer to the matter to the High Court, sitting as the Court of Disputed Returns, on the day after senior ministers became aware of the matter and as soon as we'd received Solicitor-General advice.

There is an overriding public interest in resolving the uncertainty around Senator Canavan's status, and it is important to remember that, at present, the situation is just that—it is uncertain. One of the questions is whether Senator Canavan is indeed an Italian citizen. That is primarily a question of Italian law. There will no doubt need to be evidence from experts in Italian law, and I won't speculate on what that evidence may tell us. More importantly for honourable senators, and indeed for all members of this parliament, there are questions of law as to the proper interpretation of section 44(i) of the Constitution, which provides:

Any person who:

(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power …

…   …   …

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

The legal characterisation of section 44(i) has long been the subject of legal argument, although primarily among constitutional law scholars, relatively seldom in the High Court itself. Senators may be interested to note that, in the 1897 draft of the Constitution, the equivalent clause referred to:

Any person-

(1) Who has taken an oath or made a declaration or acknowledgment of allegiance … to a Foreign Power, or has done any act whereby he has become a subject or citizen …

In other words, the framers appear, at least initially, to have been concerned only with those who, unlike Senator Canavan, had taken active steps to swear or declare allegiance to a foreign country. Ninety years after that 1897 draft, in Nile v Wood, three members of the High Court—Justices Brennan, Deane, and Toohey—opined:

… it would seem that s.44(i) relates only to a person who has formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who has not withdrawn or revoked that acknowledgment …

In 1981 the Senate Standing Committee on Constitutional and Legal Affairs reported that the aim of the provision:

… was to ensure that members of Parliament did not have a split allegiance and were not, as far as possible, subject to any improper influence from foreign governments.

In Sykes v Cleary, now the leading case, which arose from the by-election to replace the former Prime Minister, Mr Hawke, as the member for Wills, Justice Brennan opined that:

Section 44(i) is concerned to ensure that foreign powers command no allegiance from or obedience by candidates, senators and members of the House of Representatives; it is not concerned with the operation of foreign law that is incapable in fact of creating any sense of duty, or of enforcing any duty, of allegiance or obedience to a foreign power.

Justice Deane, in Sykes v Cleary, considered that section 44(i) should apply:

… only to cases where the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned.

According to Justice Deane, 'an Australian-born citizen is not disqualified by reason of the second limb of s.44(i) unless he or she has established, asserted, accepted, or acquiesced in, the relevant relationship with the foreign power.' To similar effect, Justice Dawson considered that what can reasonably be required by section 44 will depend, in part, on, 'The person's knowledge of his foreign nationality,' and:

… the circumstances in which the foreign nationality was accorded to that person: …

One wonders what members of the court might have made of an individual named John Christian Tanck. Born in 1867 in Chile to a Chilean father and an Irish mother, Mr Tanck moved to New Zealand as a toddler. He later emigrated to Sydney and was elected to the New South Wales parliament. In 1894, he was then elected as a member of the House of Representatives to the first Commonwealth parliament. In 1904, as the first federal parliamentary leader of the Australian Labor Party, he became our third Prime Minister. By that time, he was known as John Christian Watson.

So, the history of section 44 is a long one. It is to be hoped that the referral of Senator Canavan's circumstances to the Court of Disputed Returns serves the indisputable public interest in bringing some much needed clarity to this provision of the Constitution. I commend the motion to the Senate.

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

I rise to speak on the motion moved by the Leader of the Government in the Senate and also to make some comments, if I may, about motions which I understand Senator Di Natale intends to move in relation to two other former senators. These motions raise very important issues for the Senate to resolve. In November last year, the Senate considered similar motions relating to the eligibility of former Senators Day and Culleton. On each of these motions, the Senate came to the view without the need for a division. The matters should be referred to the High Court of Australia sitting as the Court of Disputed Returns for resolution.

It's important to note that that decision of the Senate did not presuppose an outcome. Rather, it was a reflection that serious doubts about the eligibility of the senators in question had been raised and that, given the complexity of these issues, it is desirable to send the matters to the High Court so that it may, as the Court of Disputed Returns under the Commonwealth Electoral Act, resolve the matters beyond any doubt. Taking this step—referring the matters to the only authority that can resolve them, which is the High Court of Australia—serves to protect the interests of the parliament and the integrity of our electoral system.

It is disappointing that we are faced today with the same task. However, the opposition believes the government is taking the correct approach. Credible doubts have been raised about the eligibility of Senator Canavan, and these doubts need to be resolved one way or the other. That is why the act makes provision for this process and that is why we believe that the government has done the right thing in moving the motion it has, and the opposition will be supporting it.

Senator Di Natale has also indicated publicly that he intends to move similar motions relating to former Senators Ludlam and Waters. I want to take this opportunity to foreshadow that, subject to any additional evidence that may be tabled or arise in this debate, the opposition also intends to support these motions. Again, this is not to presuppose the outcome. Evidence may be put before the court that leads to a determination that one or all of these senators are eligible to sit. But, in each case, doubts are clear and on the public record, and the only way to resolve these matters is for the High Court to determine them.

I also wish to set out the approach the Labor Party is taking to these matters more generally. It is a very serious matter to question the eligibility of a senator to sit in this place. It is not a decision that should be taken lightly and it can't be taken without consideration of evidence on the public record. I know some in this place have called for the appointment of some body or eminent person to 'audit' the eligibility of all senators. This isn't an approach that the Labor Party supports.

I would like to look at a little bit of history. The Senate considered a similar proposal to this in 1999, from Senator Len Harris, a One Nation senator. The debate on that motion is instructive. In particular, I draw the Senate's attention to the contribution from Senator Bob Brown, on behalf of the Australian Greens:

One of the problems is the reversal of the onus of proof. I am concerned it could be followed up by a wide variety of motions which require members of parliament to attest to their propriety without there having been any evidence that they had acted with impropriety. Surely that is not the way for us to proceed in a parliament which, as has been said by previous speakers, members have been required to sign something to say that they have abided by constitutional requirements. In effect, through taking the oath or affirmation when entering this place, they have repeated that assurance that they have been properly elected. This point was reiterated, on behalf of the Labor Party, by Senator Robert Ray:

… it is not unheard of for this chamber to refer a matter of qualification to the Court of Disputed Returns but it always does that on the basis of some evidence—and we do not want to reverse the onus of proof.

Senators from the Liberal Party took a similar approach in the same debate.

So, the approach the Labor Party will take today is a consistent approach that we have taken on similar matters for several years, and actually reflects the position adopted by those opposite and the past position of the Australian Greens. We do not support reversing the onus of proof and requiring all senators to prove their eligibility where no question has arisen. However, where the public record reveals serious credible doubts, the only appropriate resolution is through a referral to the one body that can make an authoritative determination, and that is the High Court of Australia.

Those who propose an administrative audit need to appreciate that nobody other than the High Court can authoritatively resolve questions of eligibility. So their proposed solution is no solution, and any audit can only ever assess eligibility at a point in time. If we reflect on the case of Mr Day, an audit conducted when he was first elected to this place would have revealed no impediment. He only became ineligible subsequently, when he entered into a financial arrangement with the Commonwealth in breach of section 44 placitum (v). The current circumstances are also a reminder of the importance of all candidates and all parties in running a thorough vetting process. As Senator Faulkner said during that 1999 debate, with his characteristic clarity, 'If you fail to do your homework, as is the case with Ms Hill, you make a mistake, a big one, and you get caught out—tough, that's the way it works.'

Mr President, questions relating to the composition of this chamber go to the heart of representation in our democracy. It is unfortunate that, for the second time in 12 months, we find ourselves in the position of having to seek the guidance of the High Court to clarify who is properly chosen to sit in this chamber. In the 1999 debate to which I referred, Senator Robert Ray made the following observation about the processes that parties need to go through to assess the eligibility of potential candidates:

It is tedious and it is time consuming, but it is done so that we do not face these particular situations.

Recent events are a timely reminder of the importance of parties and candidates ensuring their processes are robust. The opposition supports the referral of this matter, and looks to the High Court for its decision.

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

I do not intend to speak to Senator Canavan's case. As Senator Wong has pointed out, this is a case that needs to be adjudicated within the court, so I do not intend to make any further comment regarding Senator Canavan's case. I will shortly seek leave to move a motion relating to Senators Ludlam and Waters. However, I do feel it's important to put on the record our view, the Australian Greens view, about what should transpire from this point onwards.

Senator Wong is absolutely correct when she says that it is very serious to question the eligibility of any senator in this place. That is a very serious question to ask, and one that needs to be considered very, very carefully. What is more serious, though, is that there may indeed be senators, and members of the lower house, who are sitting as members of the parliament when they are ineligible to do so. That is of course a much more serious concern, because—Senator Wong is absolutely right—it goes to the very heart of a democracy in terms of who is eligible to stand and represent the Australian people.

What has transpired over recent months has involved a number of senators—in fact, two Greens senators, and we now have further action in the High Court relating to Senator Canavan, with questions being asked of other members of the parliament. While Senator Wong discusses section 44 quite broadly, it is our view that an audit is necessary to assess the citizenship status of all members of the parliament. That is the only way in which we can give confidence to the Australian people that members of parliament sitting here representing the Australian community are eligible to do so. And it does go to the heart of any democracy: the circumstances in which our Constitution determines that people are duly elected.

Ultimately, for people to have faith in the system, we rely on people within the system to act with integrity. I'm very proud of the actions of both senators Ludlam and Waters in accepting they made an error, and paying a very high price for that error by doing the decent and honourable thing and announcing their resignations. However, we need to be absolutely confident that everyone within our parliament is going to do the same thing. Sadly, I don't have that confidence. I don't think the Australian people have that confidence. If anything, what we have seen is a double standard being applied in terms of the actions taken by senators in this place.

So we do believe very strongly that there needs to be a thorough and independent audit of not other issues relating to section 44 of the Constitution but the citizenship status of individuals within the Australian parliament. We think it's important to restore faith in our democracy, and we will be moving tomorrow to establish such an audit. It will be up to other members of parliament to decide what they do with regard to such an audit—whether they think that restoring trust within our Australian democracy is a necessary task or whether they would like to rely on the fact that individuals within the system will simply act in the interests of the Australian people, rather than in their own narrow self-interest. Sadly, we don't have confidence that every member of this place will do that, and it is for those reasons that we will be moving for such a wide-ranging audit.

In the meantime, let me put on the record my pride in the actions of senators Ludlam and Waters, who both paid a very high price for a mistake that they made—but they did act, with the integrity that I am so proud that our party represents.

Matthew Canavan (Queensland, Liberal National Party, Minister for Resources and Northern Australia) Share this | Link to this | Hansard source

I wish to indicate that I support the motion and the referral of this matter to the Court of Disputed Returns. Until three weeks ago, I had no knowledge or reason to believe that I might be registered as an Italian citizen. I was not born in Italy, and neither were my parents. I do not believe that I have contravened section 44 of the Constitution, and my own legal advice indicates that I have a good case in this matter. Nonetheless, I do think it proper that the matter be referred to and determined now by the High Court. I wish to fully respect this process, and that is why I have resigned from the ministry and I will also not vote in the Senate until this matter is resolved.

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

The question is that the motion moved by the Attorney-General be agreed to.

Question agreed to.

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

by leave—I move:

The following matters be referred to the Court of Disputed Returns under section 376 of the Commonwealth Electoral Act 1918:

(a) whether by reason of s 44(i), of the Constitution there is a vacancy in the representation of Queensland in the Senate for the place for which Senator Waters was returned;

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

(c) if the answer to Question (a) is ‘no’, is there a casual vacancy in the representation of Queensland in the Senate within the meaning of s 15 of the Constitution; and

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

and

The following matters be referred to the Court of Disputed Returns under section 376 of the Commonwealth Electoral Act 1918:

(a) whether by reason of s 44(i) of the Constitution there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Ludlam was returned;

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

(c) if the answer to Question (a) is ‘no’, is there a casual vacancy in the representation of Western Australia in the Senate within the meaning of s 15 of the Constitution; and

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

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

I indicate on behalf of the government that we support the motion moved by Senator Di Natale. We believe that Senator Di Natale, on behalf of the Greens, has taken the appropriate course of action in all the circumstances. I don't think, in view of what has been acknowledged by Scott Ludlam and Larissa Waters, that there is any area of factual controversy here, and I ask the Senate to join the government in supporting Senator Di Natale's motion.

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

Mr President, a point of clarification: I have put the motion for Senator Ludlam and Senator Waters together. I am moving both of those together. I am confirming that that's been done?

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

That's correct. The question now is that the motion moved by Senator Di Natale be agreed to.

Question agreed to.