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

For the information of senators, I table a letter I received today by the Leader of the Australian Greens, Senator Di Natale, relating to the eligibility of Senator Roberts under section 44 of the Constitution. I table this together with attachments.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) 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 Roberts 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.

I move the motion on the basis of being the leader of Pauline Hanson's One Nation. Senator Malcolm Roberts' eligibility to stand in the parliament has come under question under section 44(i) of the Australian Constitution. I believe that, in the interests of the public, this must go before the Court of Disputed Returns. But I want to put on record that I believe that Senator Roberts has complied with section 44(i) of the Australian Constitution and I believe that he does have a right to stand in this parliament. I have always stood up for accountability, honesty and integrity and that was shown by Senator Roberts prior to his nomination for the position. It's been taken completely out of context by some media. In all fairness to the people, this needs to be looked at by the court system.

I want to bring to your attention that in 1998, after Senator Heather Hill won her seat under One Nation, she was disqualified in the High Court from taking her position in the Senate. It was then taken up by Senator Len Harris. Senator Len Harris moved in the parliament, on behalf of One Nation, that all senators in this chamber must produce evidence of their citizenship. Both the major and the minor political parties closed ranks and it never became the case. So, since 1998 we have called for accountability with regard to dual citizenship. For every member of this House to comply with the Constitution, they must have allegiance to only one country, and that is Australia. Therefore, as I said, we are seeking for this to go to the High Court for clarification, and my full support is behind Senator Malcolm Roberts, as is the support of Senator Brian Burston and Senator Peter Georgiou.

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

The government will be supporting this motion. Let me make it clear that the government will be supporting this motion because the decision to move it has been made by Pauline Hanson's One Nation Party on behalf of one of their own senators. But I do point out to colleagues that we need to be very careful here about the circumstances in which section 44 of the Constitution is invoked by this chamber.

Yesterday, I moved that Senator Canavan be referred to the Court of Disputed Returns, because Senator Canavan was of the view, which the Prime Minister and I shared, that the matter ought to go to the Court of Disputed Returns, in view of the history of matters concerning him, which I won't repeat now. The government supported Senator Di Natale referring Scott Ludlam and Larissa Waters to the Court of Disputed Returns, in light of the fact that they themselves had acknowledged that they considered themselves to be in breach of subparagraph 1 of section 44 of the Constitution and had indeed resigned their place in the chamber or at least purported to resign their place in the chamber.

I understand that Senator Roberts, with whom I spoke this morning, maintains that he considers that he is not in breach of subparagraph 1 of section 44 of the Constitution, as does Senator Canavan. He is entitled to maintain that position, to put his position to the Court of Disputed Returns, and obviously he will respect the outcome. Let me emphasise the point—it was a point actually made by Senator Wong in her contribution yesterday—that there is an issue of the onus of proof in proceedings of this kind. When a person is declared elected to either house of this parliament, after lodging an apparently regular nomination and being declared to have been regularly elected by the Commonwealth electoral officer for their state, then they are a senator or a member.

They are a senator until either they resign or are declared to have been disqualified under section 44. Where doubts arise about whether or not a member of this chamber or of the other place is in breach of section 44, then, while each case turns on its own particular facts, those who assert against a senator that they were not capable of being chosen because of a prohibition or ground of disqualification under section 44 must demonstrate why it is they claim that the senator or member of the House of Representatives is disqualified. Now, I have seen nothing, literally nothing, other than unverified and undocumented allegations in relation to Senator Roberts.

I caution the Senate that it is a very dangerous course for this chamber or any parliamentary chamber to decide on what might be a party-line vote in the absence of clear evidence that a member of this chamber is not eligible to be here. In fact, that is why we have the provision of the Commonwealth Electoral Act, which enables the chamber to refer the matter to the Court of Disputed Returns. Of course, it's not this chamber that makes that ultimate determination; it is the High Court of Australia sitting as the Court of Disputed Returns. But even such a reference, although not ultimately dispositive of the issue, is something that should never be made lightly and should never be done on a party-line vote.

In view of what has been said against him and the doubts that have been raised about his eligibility, Senator Roberts has taken counsel, as has his leader, and has decided upon this course of action. In view of that, the government will support, as I said before, the motion that Senator Hanson has moved. I know that Senator Roberts asserts that he is not disqualified by section 44. Until somebody demonstrates to the contrary, that is the way in which he deserves to be treated.

This has been a parliament in which we have now had six references by the chamber from among its 76 members. One might be forgiven for thinking that being a senator is one of the most hazardous occupations in Australia at the moment, with six people declared elected at the 2016 election either resigning or being referred to the Court of Disputed Returns. I respect the fact—and I think we all ought to respect the fact—that Senator Roberts has submitted himself to this process. No doubt the Court of Disputed Returns will understand the importance of dealing with this, as well as the other references, expeditiously, given that they relate to an issue of vital national importance, namely the proper composition of a house of the parliament.

In concluding these brief remarks, let me say once again: we should be slow to regard this as a precedent. We should never accept, as either a precedent or an appropriate constitutional practice, that, absent clear evidence, an apparently regularly elected member of this chamber or of the other place should ever be referred by the chamber under the provisions of the Commonwealth Electoral Act on a party-line vote.

Don Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | Link to this | Hansard source

I have to say that I find myself in almost total agreement with the leader—

Honourable Senators:

Honourable senators interjecting—

Don Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | Link to this | Hansard source

maybe not the last leader—in respect to his comments and, particularly, his cautions about the way in which section 44 of the Constitution should be referred to. I would indicate that the opposition does support the referral by Senator Hanson and congratulate her and her party on making this decision, which I'm sure could not have been an easy decision. I think it's in the best interests of Senator Roberts, One Nation and the Senate in general, given the issues that have arisen around Senator Roberts' status.

Senator Brandis referred to losing six senators. There is that saying by Oscar Wilde, Mr President—I'm sure you're familiar with it—which I'll paraphrase: losing one senator is a misfortune, to lose two is careless. I'm not sure when you've have lost six what Oscar would have said, but—

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

What Lady Bracknell would have said.

Don Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | Link to this | Hansard source

Or Lady Bracknell. He knows far more about English literature—Irish literature—than I do.

James McGrath (Queensland, Liberal National Party, Assistant Minister to the Prime Minister) Share this | Link to this | Hansard source

British.

Don Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | Link to this | Hansard source

It may have been British at the time, but—we won't go into that. But, look, I think there is concern in the community about what's happened in the Senate and, the earlier and the quicker we can resolve these issues, I think, will restore the confidence of the community in the processes that operate in the Senate.

There has been some criticism in the media about Section 44, and I guess some in the media describe it perhaps as an antiquated provision. We do not believe that it is an antiquated provision. It has an important role in the operation of the democracy in our country, and we believe that it's a good provision that needs to be supported. If people get elected to this place but have not satisfied the conditions associated with Section 44, then that's carelessness and neglect on their part.

This reference, I think, will start the process of rebuilding what I think is fragility in the trust of democracy in this country at the moment—and perhaps in other parts of the world—about the way it is working. So, we support Section 44. We congratulate Senator Hanson on this referral. The issue does need to be resolved. It needs to be resolved in Senator Roberts' interests, One Nation's interests but, more importantly, the Senate, and we need an authoritative and conclusive resolution to this issue. We support the reference.

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

I rise today to speak in support of the motion and to pass some commentary on what have been some remarkable contributions from Senator Brandis and Senator Farrell who seem to think this is all one big joke. Let's be clear about what happened here.

Don Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | Link to this | Hansard source

On a point of order: speaking for myself, I do not consider it a joke.

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

There is no point of order; that's a debating point. Senator Di Natale, you have the call.

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

Let's be absolutely clear about what's happened here. There are serious questions about Senator Roberts' eligibility to be a representative in this parliament—and serious question marks. His story has changed more times than I have changed underpants. This is somebody who has made commentary publicly about his status as a dual citizen that bears no relationship to the facts.

Senator Roberts has steadfastly refused to engage in what should have been the appropriate conduct in the first instance, and that was an adjudication within the High Court. Indeed, what we saw from One Nation was a refusal to do the decent thing, the honourable thing, the right thing, into coming to this chamber without pressure, from the Greens and, indeed, the crossbench, and to refer this issue to the High Court yesterday when it should have been done with the other references that were made.

The only reason we have had this contribution now from One Nation is because, in about one hour, we were due to come into this chamber with a motion from the Australian Greens, supported by the crossbench and the Labor Party, which would have resulted in exactly the same outcome.

I want you to contrast that with the actions of Senator Waters and Senator Ludlam, who when confronted with a similar issue did the right thing, did the honourable thing, did the decent thing. They stood up, copped it on the chin, resigned and had their case referred to the High Court so that they could ensure that people sitting in this chamber were eligible to sit in this chamber. It has fallen on the Australian Greens to inject some transparency and some accountability into one of the most fundamental questions facing all of us as members of parliament, and that is whether we are eligible to represent the Australian community in this chamber. This is not some rule that sits there gathering dust in the dark recesses of some act. This is our federal Constitution. Now we do not like the rule, but it is the Constitution that lays out very clearly the eligibility of senators to sit in this place and represent the Australian community.

Senator Brandis says that, indeed, it's a dangerous precedent and that the test should be whether someone believes they've done the right thing. No, Senator Brandis, the test isn't whether someone chooses to believe whether they are a citizen; the test is whether they have done the right thing.

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

Point of order, Mr President. As the Hansard will reveal, I did not say that. I did not say that that is the test.

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

That is not a point of order, Senator Brandis; it's a debating point. For both Senator Farrell's information and the Attorney-General's information, there are other avenues where you can have the record corrected or you can at least claim to have it corrected. Senator Di Natale, you have the call.

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

So the test isn't whether someone chooses to believe they've done the right thing. If that were the test, we'd have to assume that everybody within the system was acting with integrity. We have anticorruption bodies in state parliaments across the country because we know that there are some members of this chamber and other chambers across the country who don't do the right thing. I personally believe that the overwhelming majority of members of this place and the other place do do the right thing, but we cannot rely on the goodwill of each and every individual member of this parliament to ensure that the right thing is done.

In this instance there are serious questions around Senator Roberts. The right thing, the decent thing, the honourable thing, would have been yesterday, when these other matters were dealt with, for Senator Roberts to have been referred by One Nation to the High Court. Instead, under duress at a minute to midnight, with a motion put forward by the Australian Greens about to pass the Senate, we had a mea culpa from One Nation—'We better do this.' That's not good enough.

There are still many questions hanging over other members of this place and the other place. It's remarkable now that it is One Nation who have proposed to support the Greens' position for an independent audit conducted of every member of parliament to ensure that they are, indeed, eligible to stand as representatives of the federal parliament. It's absolutely remarkable now that we have One Nation setting a higher standard than the Liberal Party and the Labor Party. There is no clearer example of the closed shop that happens when they know that they are coming under scrutiny. We see the Labor Party and the Liberal Party, the Coles and Woolies of politics, coming together to protect themselves.

What we need now more than ever is transparency and accountability within our democracy. It has fallen on us, the Greens, to inject some transparency and some accountability into the closed shop that we see from both of the major parties, so shortly we will be putting forward a motion, not just regarding Senator Roberts but requiring each and every individual senator and member of parliament to ensure that they are eligible to stand here. If One Nation can support it then surely the standard that they set can be met by the Labor Party and the Liberal Party, and the test of that will come very soon.

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

I will be supporting the One Nation motion to have the eligibility of Senator Roberts referred to the High Court acting as the Court of Disputed Returns. I did try for a different outcome yesterday and, as I said at the time in a statement, I had met with a number of my crossbench colleagues and with the Greens leader Senator Di Natale. I also had a sit-down with Senator Roberts. He told me that a statutory declaration was provided to the Senate President, addressing the question of his eligibility under s44, and he actually read me parts of that stat dec. Senator Roberts personally assured me that the claim he had travelled on a British passport was wrong and that he had travelled on his mother's Australian passport. He said he was confident that he had taken all reasonable steps to confirm his sole Australian citizenship and that a QC's advice was that it would pass the scrutiny in the High Court. When it goes to the High Court, we will see. But following further information I have received in the past 24 hours, I now believe—and I won't get you to pull me up, so I won't say that the senator lied to me, I will just say—he was economical with the truth.

Honourable Senators:

Honourable senators interjecting—

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

From the moment that Senator Waters resigned, I have called for a review of all MPs' and senators' citizenship and stated that I would present my documents to such a review. I initiated, and I continue to support, such a review for impartial and independent assessment of citizenship. That is contrary to Senator Di Natale's statement just a few minutes ago—completely contrary. And I remind senators here that Senator Pauline Hanson's One Nation Party 19 years ago started earnestly to question citizenship. This is not something that we come to as Johnny-come-lately. This is something that we started 19 years ago and, in this instance, I started.

Our supporters have been very strong in their support of me, and they have said: 'Hang in there, mate. This shouldn't be happening.' And I have said to them, 'This should be happening. This is our constitution at work.'

Honourable Senators:

Honourable senators interjecting—

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

On my left.

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

Unlike Senator Di Natale, I like section 44. I love section 44 because I know I have done the right thing.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I'm starting to like it too.

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

Senator Pauline Hanson's One Nation party is about honesty, transparency and accountability.

Honourable senators interjecting—

Contrast my behaviour prior to nomination with the ex-senators Ludlam and Waters, both of whom are lawyers—I am not.

Honourable senators interjecting—

They admitted they'd made an error, but they also admitted they didn't investigate. Before I signed that nomination form, I checked and took all reasonable steps that I believed necessary. I am accountable to the people I serve—the people of Queensland and Australia. Sadly, though, as I expected, and as the media has confirmed, elements of the media have misrepresented my position and statement—not once, not twice—repeatedly. Sadly, some senators have made false statements based on media claims. That is all they have. It is clear that MPs won't allow a review body. It seems highly unlikely that the review that I initiated, and that the Greens are now pursuing, won't occur. That leaves me with only one option for a fair hearing, and that is the High Court where I will be pleased to tender my documents.

In the interests of honesty, openness and transparency, and with support from Senator Pauline Hanson, I will tender my citizenship documents to the High Court to confirm that I was eligible to be elected as a senator to the Australian parliament. I am very confident I am eligible because otherwise I would not have signed that nomination form. In the days and weeks ahead, I look forward to other senators and MPs born overseas, or with parents or grandparents of foreign citizenship, following my lead. I am confident of my case and look forward to the process ahead. For now, though, it is business as usual. We have a lot of work to do in the Senate serving the people of Queensland, and Australia.

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

Just before I put the question, I am not going to insert myself into the debate, but I will make one comment, and it relates to the comments of the Leader of the Government in the Senate and the Deputy Leader of the Opposition in the Senate in relation to the way, or the speed, in which this matter is dealt with. One of my core functions is I protect the Senate and I protect the interests of the Senate. The interests of the Senate will be best served when we operate with a full complement and when we have the certainty of the eligibility of senators within this chamber. So I add my voice to that and say that I would like this matter dealt with as soon as possible without, in any way whatsoever, casting any disrespect on the manner in which the High Court, acting in the court as the Court of Disputed Returns, will act. But the Senate and the democracy of this country are best served if the matter is resolved quickly.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Clarification, President: will Senator Roberts be required to not vote until this situation has been cleared up by the High Court?

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

That is entirely a matter for Senator Roberts. It is not a matter for the Senate to determine. I will now put the question that the motion, in the terms circulated in the chamber, moved by Senator Hanson be agreed to.

Question agreed to.