Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) 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(i) of the Constitution, there is a vacancy in the representation of the Australian Capital Territory in the Senate for the place for which Katy Gallagher 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 understand a copy of the motion is now being circulated in the chamber.

In relation to the motion, I have some brief remarks. Senator Gallagher has today requested that her citizenship status be referred to the High Court to bring an end to the attacks on her that are undermining the legitimacy and dignity of this chamber. In taking this step, she and the Labor Party do not in any way resile from the position we have taken since day one: that Senator Gallagher has taken all the steps required under the Australian Constitution to qualify to stand for election as a member of this parliament. But it is now clear the attacks on her will not stop, that these attacks are undermining the dignity and standing of this parliament, and the only way to bring an end to the attacks and restore the standing and dignity of this Senate is to have the High Court settle this once and for all.

The Labor Party takes this step notwithstanding the fact that we have compelling legal advice that Senator Gallagher is entirely qualified to be a member of this parliament. That is because, unlike some in the coalition, she took all necessary steps required to renounce any claim she may have held to dual citizenship. This is in stark contrast to Mr Joyce, Mr Alexander and former Senators Nash and Parry, who never took any steps to check if they were eligible. Like others, and unlike those members and senators, Senator Gallagher met the express test set out by the High Court in Re Canavan at paragraph 72, which states:

Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power, the constitutional imperative—

that an Australian citizen not be irremediably prevented by foreign law from participation in representative government—

is engaged.

There is absolutely no doubt Senator Gallagher applied to renounce any entitlement to British citizenship she may have had well before nominations closed for the 2016 election.

In fact, Senator Gallagher has provided the Senate with advice from Adrian Berry of the London bar, a leading expert on British citizenship law, that not only did she take all reasonable steps but she went further: she took all necessary steps to renounce British citizenship according to British law. In other words, Senator Gallagher could not have done any more to renounce her British citizenship in good time before that election was even called. The British Home Office took 118 days to process her renunciation, and I note in passing that Mr Alexander was recently able to have his renunciation processed within one week. It is not within Senator Gallagher's power to determine the time it takes a foreign government to process her renunciation. Labor is therefore confident that Senator Gallagher is constitutionally entitled. As Professor George Williams has stated this morning in The Sydney Morning Herald:

… it is difficult to see the court disqualifying a person because the bureaucracy of another country has taken months to process an application form. There is a low risk of these members offending section 44.

It is not just the case that Senator Gallagher's eligibility is beyond question; so too is her integrity. Those opposite, and everyone in this place, know it. It is now incumbent on the government to follow Labor's lead and ensure that, after it has lost two senators, there are no further doubts over the standing of its senators. Labor does not believe in using this chamber for partisan referrals. For this reason, and in light of Senator Sinodinos's medical circumstances, Labor will not be seeking to refer Senator Sinodinos at this point. However, we note there is significant legal contention about his citizenship status that the government and the chamber may need to consider in due course. For now, we leave that for the government to reflect upon.

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

The government will be supporting this motion. The government does not reflect upon the integrity of Senator Gallagher. I want to make that very clear. We do not. We do, of course, reflect upon the integrity of the Leader of the Opposition, Mr Shorten. There is one reason, and one reason alone, for the Senate—

Senator Cameron interjecting—

Scott Ryan (President, Special Minister of State) Share this | Link to this | Hansard source

Senator Cameron!

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

Mr President, given the gravity of this matter, I would ask that you be quite firm in ensuring that I am allowed to be heard in silence without interjection from Senator Cameron.

Honourable senators interjecting—

Scott Ryan (President, Special Minister of State) Share this | Link to this | Hansard source

I call all senators to order. Senator Brandis will be heard.

Senator Cameron interjecting—

Senator Cameron! Senator Brandis will be heard in the same silence that Senator Wong was heard in.

Senator Jacinta Collins interjecting—

I didn't hear any other noise around the chamber, Senator Collins. Senator Brandis will be heard in the same silence I heard Senator Wong in.

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

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

Until the Parliament otherwise provides—

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

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

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

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

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

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

I wasn't planning on addressing this issue, but the speech just then from Senator Brandis has compelled me to make a contribution to this debate. Firstly, we will be supporting this referral. I want to acknowledge the steps taken by Senator Gallagher to come forward and the Labor Party for referring Senator Gallagher. We think that's appropriate. But let's just name what's going on here. We've got two classes of politicians. We've got some members of the Labor Party who took steps, took legal advice, and at the time were satisfied that that was enough to disqualify themselves as dual citizens and to mean that they were eligible to stand. Then we've got members of the government who took no steps—who sat in this chamber, knowing they were dual citizens, and took no steps. In fact, they were forced, after the High Court decision, to come clean, like the former President of the Senate and like Minister Nash. She came here at a minute to midnight, as we were about to go home, to put her version of history on the table. It is now clear that she was sitting here, knowing she was ineligible, and did nothing about it. The rank hypocrisy from the Attorney-General is remarkable here. We have members of the government who took no steps, and they've now given the middle finger to the parliament by not disclosing the relevant information in the disclosure form.

I accept that the High Court needs to make a determination about those Labor members who sought advice and were told that initiating the renunciation process was enough to make sure that they weren't dual citizens. That was based on precedent. I understand that we do need to get some clarity on that. It's important not just for this parliament but for future parliaments to know at what point the test for reasonable steps applies. And that's why we're going to support this referral. That's why we would support referrals in the lower house.

But don't come in here, Senator Brandis, and lecture this Senate about your role in this, as though somehow the Labor Party have put themselves in the same category as your ministers. They haven't, because what we've seen in this Senate is one party where members have been dual citizens, have taken no steps, have been ineligible and have continued to sit in this chamber and in cabinet. When this first occurred, we had Minister Canavan standing up and saying, 'Given the circumstances, I can no longer sit as a minister.' When it occurred to Minister Nash and, indeed, Minister Joyce, a completely different test was applied. For some reason, they were able to continue in their roles as ministers. We had the President of the Senate issuing orders to the High Court, knowing that he himself was ineligible. The reality is that this government has shown itself to be without integrity and decency and to be hypocritical. To be standing up there and lecturing the opposition as somehow having behaved in a way that is comparable with this government is appalling.

I make the exception, of course, for former Senator Feeney. Former Senator Feeney is in a category of his own and is now a member of the lower house. The questions about Mr Feeney are: when did he know about what had occurred and when did he know that he didn't have documentation to certify that he was not a dual citizen? Clearly, if it's taken him five months to arrive at this position—and he has been dragged kicking and screaming—I think Mr Feeney is a special case. I think most people would recognise he's a very, very special case, and I think the people of Batman will make it very, very clear that they think he's a very special case.

Mr Feeney has shown himself to be completely lacking in integrity by sitting on information for five months, but members of the government have applied a completely different standard to members of their own team, to ministers, who have been dual citizens, who have taken no steps and have now, through this disclosure process, effectively said, 'We're not going to provide you with the information that you need to have some certainty that we're not dual citizens.' I wasn't planning on making a contribution. I do acknowledge it's been a difficult time for Senator Gallagher. Again, I want to congratulate her on coming forward and the referral, but, please, Attorney-General, next time spare us the sanctimonious hypocrisy that you've just provided the Senate with.

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

Like Senator Di Natale, I wasn't intending on making a contribution, but I've got to call out that last contribution for the poppycock that it was—absolute hypocrisy itself from the Leader of the Greens. We've got a situation where Senator Di Natale is saying everybody is acting with integrity except for members of the government that he opposes—oh, and except for this other bloke called Mr Feeney, who the Greens almost certainly will be running a candidate against in any subsequent by-election. It is all for political purposes. To everybody up there listening, to everybody watching, it's all theatre for Senator Di Natale. It's got nothing to do with integrity, nothing to do with what should happen and what is the right thing to do—it's all a political opportunity that the Greens now see in the seat of Batman.

All power to you, Senator Di Natale, and good luck down there in Melbourne if it comes off. But, I must say, your two classes, or your two buckets, don't make any sense either. Here in the Nationals party, when we found out we referred ourselves. Senator Gallagher will go to the High Court now, and that is the right and proper course of action, but let's be very clear that Senator Gallagher apparently became aware that she had issues with her citizenship in April last year, while she sat as a senator, and did absolutely nothing about it. She complains about the time taken by the British bureaucracy to get back to her. If she had done what we did in the Nationals party and had a press conference and told the world about it, I bet you the British bureaucracy would have come back a bit quicker than 118 days. They would have, because she was a sitting senator and they would have acted. But she did not do that. The facts will be established by the High Court—

Opposition Senators:

Opposition senators interjecting—

Scott Ryan (President, Special Minister of State) Share this | Link to this | Hansard source

Senator Canavan, please resume your seat. Order on my left.

Senator Kim Carr interjecting—

Order! Senator Carr. I am having trouble hearing the minister.

Senator Wong interjecting—

There will opportunities for others to participate in this debate. Until there is silence I am not going to let this debate continue. This is a matter of some importance to the Senate. Could that be kept in mind as we conduct the debate? Senator Wong, there are matters subject to debate and people have an opportunity to participate in those on all sides of the chamber. Senator Canavan.

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

Thank you, Mr President. The record shows that, when any of the Nationals members or senators have been caught up in these issues, as soon as that information has come to light—

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

That's a lie. That's a lie.

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

Mr President, on a point of order. Senator Wong should withdraw that interjection that Senator Canavan has told a lie. I was hoping that this debate, given the seriousness of it, would be conducted with decorum and courtesy. All of the interjections have come from the other side.

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

Mr President, on the point of order: the assertion that Nationals senators immediately disclosed is a lie. It is a lie. And Senator Nash's evidence and the evidence before the High Court demonstrates that.

Scott Ryan (President, Special Minister of State) Share this | Link to this | Hansard source

Senator Wong, that is a debating point. I didn't hear the interjection Senator Brandis referred to.

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

I said it was a lie when he asserted that all Nationals disclosed as soon as they knew. That has been demonstrated in the evidence before the High Court, including the evidence in relation to his case.

Government senators interjecting—

And I too wish for some decorum—you should control your senators, Senator Brandis. I will take your ruling, Mr President.

Scott Ryan (President, Special Minister of State) Share this | Link to this | Hansard source

I didn't hear the exact words that were used. What were the exact words used?

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

If you wish me to withdraw the word 'lie', if it assists the chamber I will do so.

Scott Ryan (President, Special Minister of State) Share this | Link to this | Hansard source

Yes, that would assist the chamber greatly. Thank you, Senator Wong. And I will ask senators, if they wish to say something in this debate, to cease interjecting and to take the opportunity to participate. This is a matter of some gravity and standing of the Senate, and if we could conduct ourselves accordingly, that would be helpful.

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

It is a matter of record that as soon as the Nationals senators and member became aware of the legal advice on their situations, they did come clean. We all in this place have decisions to make, and it's easy to make the right decision when the consequences are good for you. It is much more difficult to make the right decision when the consequences could be bad. What we have seen from the Leader of the Opposition and the Labor Party is that they have run a protection racket for their members and senators, because to do otherwise would potentially have bad consequences for their political circumstances. Now, tough decisions have been made by the government—to go to a by-election in a place like Bennelong, where we could lose our majority. But it was the right decision. And it is now incumbent on everybody, now that the High Court has clarified this situation—the law is clear—to do the right thing. It may mean that people lose jobs. It may mean that governments or oppositions see changes in the power balance in this place. But the right thing is to refer any matters to the High Court and to clear it up.

We in this place have tried to do that. There have been difficult circumstances for the government. But instead of trying to clarify the situation for the Australian people, instead of providing certainty for this parliament as soon as possible, the Leader of the Opposition and the Labor Party have played political games, not delivered what is in the national interest, which is to clear up this area of law. Now that this referral has taken place, it will be an opportunity to get to the bottom of it. And perhaps the legal advice the Labor Party has received will prevail. But that is a matter for the High Court now. That is a matter for the appropriate body to determine, and the sooner that can happen the better, so we can get back onto the job we are here to do for the Australian people.

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

Like Senator Di Natale, I had told Senator Wong that I did not intend to take part in this discussion today. But if we're talking about hypocrisy, while Bill Shorten sure gets some of it, Senator Canavan, you cop the golden medal, for God's sake! I mean, you did the right thing—stood there alongside the Attorney-General, and the Attorney-General stood and said, 'Yes, Senator Canavan will stand down from his ministerial responsibilities,' and that was the fair thing to do. But then, when Barnaby Joyce gets ups, oh no, he can stay. And Senator Nash: you were right, Senator Di Natale; at five minutes to midnight, Senator Nash snuck in here, when we were all going home, and dropped her bucket. The Nationals did not come clean earlier, did not come clean when they should have, and neither did other members of the government. We had Senator Fifield—and Senator Cameron has asked questions about this, and so have I—knowing for weeks that the President of the Senate, Senator Parry, had doubts about his own citizenship. Senator Fifield kept his mouth shut for weeks. Also, according to the reports, other senators in the government knew. Senator Fifield, who is the boss of government business, didn't say to Prime Minister Turnbull, 'Houston, we've got a problem.' For weeks he didn't say a word.

Then there was the Attorney-General, who for 24 hours didn't say a word to the PM, because he was in transit. Haven't you heard of Skype, Senator Brandis? And I mentioned Senator Nash. I say this with a bit of passion, because I was the original target, before the dominoes started to fall. Mr John Cameron, I think his name is—a constitutional nerd in Perth—decided, on a whim, 'I think I'll do something about section 44'—because it was a mess, and it is a mess. And dual citizens should be allowed to be here in some capacity. But he went after it. He thought, 'Hinch runs a small party; he won't have cleaned his act up, so we'll get him,' and he got Scott Ludlam on the way through. The Greens behaved with dignity—while we're talking about hypocrisy. The Greens got up—Ludlam got up, and then Senator Waters got up—and said, 'We resign.' They did it with class, they did it with dignity, and nobody's done much of it since.

Senator Gallagher is offering herself up to the High Court, which is the way it should be. The High Court must make these rulings. But, in the case of Senator Canavan—hypocrisy. Whatever happened to, 'My mother ate my homework?' What happened to that defence?

High Court lawyer David Bennett, former Solicitor-General—he was my lawyer in the High Court, so I know him very well—dumped the mother-ate-my-homework defence because he knew it wouldn't fly. I think there's a case here for Senator Canavan to be referred to the High Court again. They went for another defence. Anyway, I'll leave it to the High Court. I won't do what Prime Minister Turnbull did and say, 'And so the High Court shall rule.' I'll leave it to the High Court. That's where it should be and that's where it should stay. The sooner we get this over and done with and come back clean next year the better.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I want to briefly contrast the honesty and dignity that Senator Gallagher brought to this debate this morning with the very quick situation that developed under the Attorney-General to try to make this a political issue. For Senator Canavan to get up and say what he did was absolutely outrageous. I agree with you, Senator Hinch. The first defence from Senator Canavan was to blame his mother—'My mum did it, not me'—and that disappeared. And we had the lecture from the Attorney-General about the right thing to do. I'm not sure if the Attorney-General ever gave the Prime Minister the same lecture. Maybe he should walk across to the Prime Minister now and give him the same lecture. The Prime Minister would then have no option but to refer Jason Falinski, Josh Frydenberg, Nola Marino, Julia Banks, Alex Hawke and Michael McCormack from the lower house and Senator Arthur Sinodinos. None of these members have complied with the agreement that was reached, whereas everyone else in the parliament has complied and provided details of their ancestry and their renunciation of any foreign citizenship. None of these MPs have done that. In fact, Jason Falinski argued that he had advice, but he wouldn't provide that advice. Josh Frydenberg says he has received advice from Hungarian, Polish and Australian legal people, but he hasn't provided that advice. Nola Marino says that she has got legal advice. Have we seen that? No, we have not. Julia Banks, Alex Hawke, Michael McCormack and Arthur Sinodinos have all provided an unconvincing letter from the Greek embassy but refused to provide any advice.

I think the hypocrisy that we've seen here demonstrates that the government sees this as an opportunity to kick a political opponent. We know how they have dealt with other matters in this place when it comes to Senator Cash. I contrast the position that Senator Gallagher has taken with the position Senator Cash took in this place to mislead the parliament on at least five occasions and to provide no reasons for her unacceptable conduct as a minister. The Prime Minister should move immediately and refer to the High Court these MPs who have not complied with the agreement between the political parties in this place. It is unacceptable for any of them not to take the same position that Senator Gallagher has. For Senator Canavan to come in here and descend to the level that he did is in complete contrast to the integrity that he did show when he stood aside from the cabinet. But it again demonstrates that Mr Joyce showed no integrity by sitting in cabinet as the Deputy Prime Minister and acting leader of this country when he was not eligible to sit in the House of Representatives.

So I take view that there is a challenge here for the Prime Minister. The Prime Minister has to accept this challenge and refer all those members and Senator Sinodinos to the High Court. It is absolutely unacceptable that it is now being left to individuals to put up, because the agreement was that there would be documents provided, that there would be forms filled in and that there would be legal positions put forward. That has not been done. But it has been done by Senator Gallagher, who, again, came in here dignified, honest and was then subjected to a fake argument that people were not going to put her under any pressure. Then a political argument to try and smear other politicians was presented in this place, when the biggest hypocrisy comes from the government, when the biggest hypocrisy comes from the Prime Minister. Maybe this Prime Minister will grow a bit of a backbone and stop being such a jellyback, stop being manipulated by every right-wing idiot in this place, and stand up, do the right thing, refer these members and bring this terrible time for the parliament to an end.

This is a government in crisis. This is a government in chaos. This is a rabble of a government that cannot lead effectively. All these coalition members are under a cloud. Either they should fess up, do the right thing and refer themselves or the Prime Minister should take some leadership, refer them and make sure that we as a parliament can move on. This parliament is in absolute chaos under this government. This parliament is, I think, more and more being marked down by the Australian public because of the lack of leadership from the Prime Minister and the lack of integrity from some of those on the other side. Every one that I've mentioned—Jason Falinski, Josh Frydenberg, Nola Merino, Julia Banks, Alex Hawke, Michael McCormack and Arthur Sinodinos—should be joining Senator Gallagher in the High Court. At least Senator Gallagher showed the courage, commitment and integrity to refer herself.

Question agreed to.