Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to this | Hansard source

I move:

That the Senate take note of the answers given by the Minister for Regional Development (Senator Nash) to questions without notice asked by Senators Polley, McAllister and Moore today relating to her status as a senator and a minister.

When the minister came in at the dying hours of the last sitting session and made her statement about the situation around citizenship, she must have been aware that there were going to be questions asked in this place. That would be no surprise to her.

Today, in question time, a number of questions were raised that had nothing to do with the actual issue of citizenship, because that's not our role. Indeed, as the minister quite rightly said, that is now an issue for the High Court. But what we needed to know and what we were asking about was the process that took place around the disclosure of the minister's situation with the Prime Minister and the Deputy Prime Minister and about exactly what would happen, what would be the process into the future, while this issue was referred to the High Court and there was uncertainty.

In her answers, there were two key points to a range of questions put to her, though she wasn't keen to answer any. Of the two key answers that came up, one was that strong legal advice indicated that the minister was able to continue in her position. Indeed, there was nothing to be seen here; there were no questions to be asked. I think that was the response we got. We have a long history in this place of being told by governments that they have strong legal advice. There is no history of that strong legal advice being tabled, and that would be a really straightforward process. If there is strong legal advice on why a position has been taken and there is interest in that, and I think there is, it is a straightforward position for that legal advice to be tabled. I know that governments of all flavours do not often share legal advice, but there is nothing to say they can't. In this case, as the minister has said clearly, a number of times, to questions today, the government has strong legal advice. What the parliament does not have is that strong legal advice.

The other argument that the minister put forward was that there are lots of other more important things that we should be asking questions about and that the community is just not interested in these issues around citizenship. I disagree. Whilst I know that the issues around the Constitution and constitutional law do not raise amazing passion across all areas of the community—this is a time when I really do miss having Russell Trood in this place, because this was the kind of issue that he would have passion about and would like to discuss; he is not here, but I know he is listening—what the community wants is consistency. This issue has been going on for weeks and weeks. While Senator Nash believes that the community is not particularly interested in these issues around citizenship, the media certainly are. They have been running stories on these issues around the Constitution and the constitutional entitlement of people to be in this place for weeks and weeks on a daily, in fact, in some cases, on an hourly basis. What the community wants to know is how we can get this right. They also expect some consistency in the way that these issues are handled in this place, in their parliament.

We have been asking a range of questions. When there were questions about the citizenship of Minister Canavan, a decision was made that he stand aside. Our questions are about consistency. If questions around citizenship that look at the eligibility of Minister Nash and also the Deputy Prime Minister—questions around their citizenship and their entitlement to be here—are now going to be taken to the High Court, why is it that the strong legal advice for them is different from whatever the strong legal advice was for Minister Canavan, which was very early in this process? We do know that, in other cases, senators have resigned from this place and are no longer with us. I don't know what the strong legal advice was in those cases. I think we have a responsibility as a parliament to have answers to these questions. I think we have a responsibility as a parliament to make sure that the community understands that there are issues being raised, there is a process being followed and there is a consistency in the way that people who are caught up in this process will be treated and will behave in the parliament while we are waiting for the result. (Time expired)

Jonathon Duniam (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I, too, am rising to take note of the answers given today by Senator Nash to the questions outlined by Senator Moore. Watching question time today and listening to the answers that were provided by the minister, which didn't satisfy the opposition, I think those opposite are all about insider politics, all about the Canberra bubble—and we heard it from Senator Moore just then. I recall that in one of her answers Senator Nash pointed out that if you go down the main street of Burnie in Tasmania or any other regional community people aren't asking one another about what's going on with section 44. Indeed, they're talking about things like power prices and jobs—about whether their kids are going to have a job. That was a point made by Senator Nash, but Senator Moore just then said, well, this section 44 issue is so important because—get this—the papers are running it. That's the test that's applied here for the issues the Australian Labor Party, the opposition, want to pursue in question time—not the issues their constituents raise, not the issues that are actually burning in the minds of people who can't afford to pay their power bills, who are worried about their kids getting jobs and about their futures in the communities in which they live.

I sense, though, that a lot of the answers frustrated the opposition and didn't accord with what they wanted to hear. They wanted that gotcha moment—again, all about getting a headline tomorrow. That's how things operate inside the Canberra bubble. A number of things have already been put on the record, and I refer again to a statement which I know has been pointed to in this debate a number of times by the Attorney and by Senator Nash. Last sitting Thursday Senator Nash clearly outlined quite significantly and in some detail the steps she went to in coming to the conclusion that she did before she informed the Senate of the situation she found herself in. That detail is all there. The following day, 18 August, the Legal and Constitutional Affairs Legislation Committee examined this matter in quite some detail. I note that under questioning from Senator Watt, who isn't here at the moment, even more detail was put on the record about precise times that correspondence on this issue was received and when action was taken, clearly demonstrating exactly why the action was taken when it was—blowing a massive hole in this argument that people were sitting around hoping that no-one would notice and clearly demonstrating that we did things when we needed to based on the advice that we were provided with.

What this demonstrates above all else, though, is that the opposition are out of touch. It's all about trying to score a few political points while they're up here in Canberra, rather than working with government or the crossbenchers on improving legislation. There was not a question on that sort of stuff today. There was a little bit of serious stuff at the beginning, when we were talking about the grave situation our nation faces with regard to the Korean peninsula. But straight after that, any seriousness went out the window, and it was on to this insider political behaviour, which is exceptionally disappointing.

In another question from Senator Moore, she referred to a quote from Senator Nash's statement, trying to assert that she said the Prime Minister had made the decision. But missing from Senate Moore's question was the fact that Senator Nash indicated to the Senate that the Prime Minister's indication was on the basis of the Solicitor-General's advice—a fairly salient fact in how the Prime Minister reached the conclusion that he did and took the action that he did. In terms of tabling legal advice, as far as I am aware, legal advice often has attached to it legal professional privilege. It's one of those things that people don't table; they don't wave it around while things are yet to go before the courts. That is an age-old practice and convention. I'm not sure why it'd be different today, just to suit people's curiosity.

But the other thing we have to think about here is: what about those on the other side, who refuse to provide clear evidence that they are not falling foul of the Constitution, such as the member for Braddon, Ms Justine Keay? I've called, on public record, time and time again for her to produce her documentation. I commend Tasmanian Labor Senator Lisa Singh, who did just that. I don't know why people like Ms Keay, the member for Braddon, can't do the same thing. We've got to apply a consistent standard here. (Time expired)

Louise Pratt (WA, Australian Labor Party, Shadow Parliamentary Secretary for the Environment, Climate Change and Water) Share this | Link to this | Hansard source

I also rise to take note of the answers given by Senator Nash to the questions asked by Senators Moore, McAllister and Polley. In every instance, Senator Nash has failed to be accountable to this place in answering questions. It points to the deep crisis within government and an extraordinary set of double standards that go to the heart of the integrity of this government. Senator Canavan did the right thing and stood aside from his ministerial responsibilities once doubt was cast on his citizenship. It was clearly recognised by him and others that it was an important step to take and the right thing to do. As Professor George Williams, the constitutional expert, said:

The wisest course is for them to refrain from making decisions or to step down pending the outcome of the High Court hearing.

Now, it is all very well for the government to talk about, 'The situation's fine; everything is as normal because we've got legal advice.' But, should Senator Nash continue to exercise her responsibilities, the Australian people deserve accountability and an explanation of the grounds and reasons for her doing so. There have been no reasons given other than the mere fact of legal advice per se; Senator Nash has failed in every instance to provide an explanation to this place. It calls into question whether Senator Nash will need to defer decisions, delay decisions or delegate decisions to other people while doubt is cast over her eligibility to be in this place.

I can only surmise as to some of the reasons why Senator Nash has allowed herself to be used in this way and to set such an appalling double standard not befit of this place. Had Senator Nash done the right thing and stepped aside from her ministerial responsibilities, it would have called into question the decision of our Deputy Prime Minister, Mr Barnaby Joyce, and his failure to also step aside. So, here we have the ministers within the National Party completely in disarray and beset by their own incompetence as a party and their failure to do due diligence when their candidates are nominated for election. It calls into question their competence, and illustrates the hypocrisy of the National Party and the government in allowing these double standards to exist.

Senator Nash may well say that there are other issues that we would like to be discussing as a nation, such as jobs, health and employment, et cetera. Indeed we would and indeed we do. But it is simply not acceptable that we are asked, as a nation, to place trust in a minister who is making decisions on these very things—the things that affect jobs and the things that affect regional development and employment—when those decisions could be called into question in the future because of her potential ineligibility to be a member of this place. The minister has provided no assurance that her ministerial decisions will not be invalidated if her own status as a senator is found to be in breach of section 44. Perhaps Senator Nash is selling out every principle of good governance because she is trying to avoid setting a precedent that would see the Deputy Prime Minister also need to step aside. I can only presume from Senator Nash's answers this afternoon that she is continuing to make decisions and participate in decisions that could be called into question in the future. Her failure to provide answers on these very serious matters to the Senate this afternoon is a serious issue.

Zed Seselja (ACT, Liberal Party, Assistant Minister for Social Services and Multicultural Affairs) Share this | Link to this | Hansard source

I don't often disagree with my Liberal colleagues. Senator Duniam talks about the Canberra bubble. I make the point that it is a fly-in fly-out bubble, to the extent that there is one. It is not a result of the hardworking residents of the ACT.

Can I go to the issues that have been raised. Before I go into some detail about Senator Nash and the position she's outlined, which has been widely canvassed, including by the Attorney-General on the record recently in committee, I would say, on my own behalf and on behalf of the government, that when we talk about Minister Nash we are talking about a fine minister, a fine representative of regional Australia and of New South Wales. I think that anyone who has dealings with Minister Nash knows not just that she is a thoroughly competent and hardworking minister and representative but an honest and decent representative. That is something absolutely worth putting on the record, as we have the opposition trying to in some way call that into question with their line of questioning.

Minister Nash has outlined the process she went through on being advised over questions around her citizenship. She has acted absolutely properly and thoroughly, dealt with it on the best advice and put this issue to the High Court in the proper way. It's fair to say that not everyone has taken that approach. We heard from Senator Moore and Senator Pratt just then saying, 'Table the legal advice.' That's fascinating in the context, and it seems almost designed to go after one of their colleagues, Senator Gallagher, who today we heard talking about the fact she had legal advice on her Ecuadorean citizenship. I'm not aware of that legal advice being made public. I'm not aware of it being tabled. So, again, we have the hypocrisy of the Labor Party saying Minister Nash should table her legal advice but there is no need for that kind of transparency from Senator Gallagher in relation to her Ecuadorian citizenship. Senator Gallagher's legal advice may well be very strong—we can only take her word for it, not having seen it—but there is a fair dose of hypocrisy here from Labor senators in calling for the tabling of legal advice when one of their own, who is not subjecting herself to consideration by the High Court, is not putting on the public record the legal advice she relies on to say that she is not a citizen of Ecuador, or indeed tabling it in this place. Senator Gallagher has referred to legal advice but not, I note, to advice from the Ecuadorean embassy. That's obviously a matter for her, but I won't take the hypocrisy from the Labor Party on this issue and say, 'Minister Nash has to table her legal advice, when she is going to be subjected to the High Court's judgement on this issue, but Senator Gallagher does not have to do the same.'

I go that point of hypocrisy when it comes to Bill Shorten. Bill Shorten has been out there on this issue saying—

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

Senator Seselja, I remind you to refer to people in the other place by their correct title.

Zed Seselja (ACT, Liberal Party, Assistant Minister for Social Services and Multicultural Affairs) Share this | Link to this | Hansard source

Thank you, Deputy President. I do refer to the hypocrisy of the Leader of the Opposition, Bill Shorten, on the issue of disclosure. Bill Shorten has never been one for disclosure. Whether it be secret payments he was getting when he was negotiating workplace deals—donations, at a time when he was negotiating workplace deals, that weren't declared until eight years later—or whether it be Bill Shorten's citizenship documents, he has not been—

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

Point of order: the senator may not be aware that Mr Shorten has now tabled his documents in the other place.

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

It's not a point of order, Senator Wong. Again, Senator Seselja, I believe it's Mr Shorten.

Zed Seselja (ACT, Liberal Party, Assistant Minister for Social Services and Multicultural Affairs) Share this | Link to this | Hansard source

I think I referred to him as the Leader of the Opposition.

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

Just the once.

Zed Seselja (ACT, Liberal Party, Assistant Minister for Social Services and Multicultural Affairs) Share this | Link to this | Hansard source

Certainly Mr Shorten, or the Leader of the Opposition, has not been big on transparency, so when it comes to the hypocrisy we've heard—they want us to table legal advice but they won't table legal advice; they want it to be one standard for us and another standard for them—I'd say that Minister Nash has outlined the process and has followed good process every step of the way. She has been thorough and transparent and has put herself in the hands of the High Court, as is right and proper in these circumstances, and I endorse the minister's actions right across the board.

Kimberley Kitching (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

The dual citizen fiasco has reminded me of two instances: one from popular culture and one from history. The first one is the Death Star of Star Wars fame crashing and burning. That is what this government is doing. The emperor is dead, Darth Vader is dying and the Death Star is crashing—that's this government. The second instance is that I was reminded of a speech given by Oliver Cromwell on the dissolution of the Long Parliament in April 1653. It is quite a famous speech and I thought these words applicable today to the instance we have with this government. He said:

Ye are grown intolerably odious to the whole nation; you were deputed here by the people to get grievances redress'd, are yourselves gone! So! Take away that shining bauble there, and lock up the doors.

In the name of God, go!

I will come back to the comments made by Senator Duniam and Senator Nash in relation to the Australian public being not interested at all in whether our parliamentarians and ministers are duly elected, appointed and sworn in, because of course the Australian people are interested in that. They would like to think there is some level of competence in the government.

I want to go to two issues. The first is consistency in approach. As has been raised, Senator Canavan did resign, so what was the advice in relation to why Senator Nash and the Deputy Prime Minister have not resigned their ministerial responsibilities? I, secondly, want to really focus on the breaches of not only section 44 but also section 64 of the Constitution. Just so we are clear, section 44(i) says any person who:

… 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.

On dual citizenship, people have referred themselves to the High Court, and that is very good, but what was the advice that was sought and where did it come from? How was the Attorney-General involved in that? Did it come from the Solicitor-General? We are not very clear on that. Senator Seselja says, 'No-one has to proffer their own legal advice if they don't want to.' But, again, I would make the point that the Australian people have the right to know. Given this is such a serious issue and given we may well have a cabinet that is not formally or lawfully appointed, I think that advice should be tendered and made public. I also think that some of this advice is going to become clear when the High Court meets next month.

Senator Nash in her answer referred the Senate to her statement—and what a statement full of holes it is. One could say it was a pithy statement, but that would be painting it in a light it doesn't really deserve. It's about seven paragraphs long, and it doesn't really go into any detail at all. You can find it on fionanash.com.au. It's on the first page. I think most people would agree that it doesn't really go to the questions of such gravitas that are being asked. If Senator Nash did receive advice saying that she should stay on, what was the advice given to Senator Canavan? What was the advice from the Solicitor-General?

What was the advice around section 64? Did the Attorney-General seek advice on section 64? I will read that section into the record. Section 64 is titled 'Ministers of State'. I will go to the particular part headed 'Ministers to sit in Parliament'. It says:

After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.

Simply put, section 64 refers to the appointment of ministers and requires that they be members of parliament. This section underlines the principle of responsible government. Ministers are elected representatives and are accountable to the parliament. (Time expired)

Question agreed to.