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senate vote 2017-09-04#1
Edited by
mackay staff
on
2017-11-17 14:47:38
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Title
Parliamentary Representation — Qualifications of Senators- Motions - Parliamentary Representation - Qualifications of Senators
Description
<p class="speaker">George Brandis</p><p>by leave—I move:</p><p class="italic">That pursuant to section 376 of the <i>Commonwealth Electoral Act 1918</i>, the Senate refers to the Court of Disputed Returns the following questions—</p>- The majority voted against a [motion](http://www.openaustralia.org.au/senate/?id=2017-09-04.5.2) introduced by Senator [Pauline Hanson](https://theyvoteforyou.org.au/people/senate/queensland/pauline_hanson), which means it failed.
- ### Motion text
- > *That:*
- > *(1) the Senate notes that the continued uncertainty regarding the qualifications of a number of parliamentarians under section 44(i) of the Constitution is undermining public confidence in the parliament; and*
- > *(2) in the interests of restoring the public's confidence, the Senate is of the opinion that senators should work with the government to establish an independent review of the qualifications under section 44(i) of all senators by the end of the sitting week.*
<p class="italic">(a)   whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation of New South Wales in the Senate for the place for which Senator Fiona Nash was returned;</p><p class="italic">(b)   if the answer to question (a) is "yes", by what means and in what manner that vacancy should be filled;</p><p class="italic">(c)   what directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference; and</p><p class="italic">(d)   what, if any, orders should be made as to the costs of these proceedings.</p><p>As honourable senators are aware, on Thursday, 17 August, when the Senate last sat, Senator Nash made a statement to the Senate during the course of which she disclosed that she had a concern in relation to her eligibility to be chosen for the state of New South Wales because of subparagraph (i) of section 44 of the Constitution. Senator Nash was quite forthright, at the earliest opportunity, in raising that issue in the Senate.</p><p>The government has taken advice from the Commonwealth Solicitor-General. On the basis of that advice, I can advise the Senate that the government is of the view that Senator Nash is not ineligible to sit and was not incapable of being chosen. Nevertheless, in view of the matters raised by Senator Nash it seems a prudent course for the Senate to make a reference under section 376 of the Commonwealth Electoral Act, which is the purpose of this motion. The facts and circumstances were set out in Senator Nash's statement on 17 August. The history of the matter was related by me during the Senate Legal and Constitutional Affairs Committee spillover hearings on the morning of Friday 18 August. I will not detain the Senate by going over those circumstances again. Suffice it to say that Senator Nash acted very promptly and very properly, and we will be supporting this reference.</p> <p class="speaker">Penny Wong</p><p>On behalf of the opposition, I make clear that we welcome the decision of the government to refer the Deputy Leader of The Nationals to the Court of Disputed Returns. Given the clear evidence that she may be a dual citizen, this is the right thing to do. However, we place on the record our grave concerns that the minister is refusing to follow the lead of her colleague, Senator Canavan, and standing aside as a minister. When there are real doubts about your right to sit in this parliament then you ought not be acting as a minister and taking important decisions as a member of the executive until that matter is resolved. Labor urges the minister to reconsider. Labor urges the minister to follow the lead of Senator Canavan, a minister who was put in precisely the same position as Senator Nash, but who, unlike Senator Nash, did the right thing. Senator Canavan said:</p><p class="italic">Given the uncertainty around this matter, I will stand aside until the matter is finally resolved and resign as Minister for Resources and Northern Australia.</p><p>That is the appropriate standard. It is the standard that has been set. It is the standard that should be followed.</p> <p class="speaker">Richard Di Natale</p><p>On the behalf of the Australian Greens, we will also support this referral to the Court of Disputed Returns. I do take issue, however, with some of the comments of Senator Brandis, specifically with regard to the timing. It's my understanding that Senator Nash was aware of this on Monday, and yet it took until almost everybody had left this building late on Thursday for Senator Nash to come into an empty chamber to effectively disclose the fact that she was a dual citizen. I don't think that's prompt, with due respect. I think that's tawdry and I think it's treating this chamber with disrespect.</p><p>With regard to the decision to stand aside, we concur absolutely with Senator Wong that a precedent was set. We think that precedent should've gone further and that they should've followed the lead of former Greens senators, Senator Ludlam and Senator Waters, who effectively resigned from their position because of a very clear reading of section 44. However, in the absence of that, Senator Canavan made the decision to stand aside as a minister. That is a precedent that has not been followed by Mr Joyce in the lower house of parliament or now by Senator Nash here in the Senate. It casts a huge shadow over decisions that are being made by both of those ministers and throws this chamber and, indeed, the parliament, open to challenge for decisions made by both ministers while this question mark hangs over their heads. We now know that should a decision be made, for example, to throw a billion dollars at the Adani mine that it will be a decision that is challenged in the courts as a result of these decisions by both Senator Nash and, indeed, Mr Joyce not to stand aside from their positions as ministers.</p><p>Finally, another sitting week begins with a referral to the High Court. And we will be here again and again and again unless we have a full and comprehensive audit of all members of this parliament. This is something that needs to be dealt with quickly, regardless of the pain that might be inflicted on the government. Indeed, the Labor Party haven't carried themselves with any degree—I think—of openness or transparency by refusing completely to engage with questions around the eligibility of some of their members of parliament.</p><p>We now have every member of this crossbench say, very clearly, that they will subject themselves and members of their teams to a thorough and comprehensive independent audit. And yet we have both the Labor Party and the Liberal Party making it very, very clear that, when it comes to protecting their own interests, they will put their own interests ahead of the public interest. That is something the Greens wholeheartedly reject. My understanding is that every member of this crossbench, with the exception of Senator Leyonhjelm, has shown leadership on this issue and has shown the only way this issue can be resolved is with a thorough and comprehensive audit of all members of this parliament.</p> <p class="speaker">Derryn Hinch</p><p>I support the government's decision to refer this matter to the High Court, as the Court of Disputed Returns. I also support what Senator Di Natale has said about the timing of Senator Nash going public with this. It was a classic case of the government doing a dump-and-run number at five minutes to midnight. I also support the Greens and the other members of the crossbench on the audit, and I urge the Liberals and the Nationals and the Labor Party to finally acquiesce to having an independent audit of all senators. I also think that Senator Nash should have followed Senator Canavan's example, which was the right example. Senator Brandis, you stood alongside Senator Canavan when he made the announcement that he was stepping down as a minister. I think that Senator Nash should step down as a minister, and so should the Deputy Prime Minister. Mr Joyce should not be leading this country when Prime Minister Turnbull is out of the country.</p> <p class="speaker">Ian Macdonald</p><p>I don't want to prolong this, but the hypocrisy of the Greens political party knows no bounds. Senator Brandis explained the timing of Senator Nash's announcement. Senator McKim, from the Greens political party, was at the legal and constitutional affairs Senate spillover hearing the next day when this matter was raised. It wasn't on the agenda, but, because that committee has a very good chairman, we allowed those questions to be raised. Senator Hinch, who sometimes attends that estimates committee as a participating member—I think he was there on this day—asked questions, as did other senators, including Senator McKim, and it was very clear. As Senator Brandis has said, it's on the record. He didn't waste the time of the Senate by going through that record again. I urge all senators who might be interested in this to have a look at the timing. Senator Nash is without blame. In fact, she did the absolutely right thing almost to the second.</p><p>I only enter into this to highlight the hypocrisy of those senators who were there to question this, who went through it all, who understood the issues and who now have the temerity—the dishonesty I might add—to get up in this chamber and raise the issues that they've already fully canvassed, and which were very clearly explained by Senator Brandis. I urge all senators who are interested in this to actually have a look at the <i>Hansard</i> and you will, second by second, see how Senator Nash did exactly the right thing.</p><p>Question agreed to.</p> <p class="speaker">Nick Xenophon</p><p>by leave—I move:</p><p class="italic">That the following matters be referred to the Court of Disputed Returns under section 376 of the <i>Commonwealth Electoral Act 1918</i>:</p><p class="italic">(a) whether by reason of s 44(i) of the Constitution there is a vacancy in the representation of South Australia in the Senate for the place for which Senator Xenophon was returned;</p><p class="italic">(b) if the answer to question (a) is 'yes', by what means and in what manner that vacancy should be filled;</p><p class="italic">(c) what directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference; and</p><p class="italic">(d) what, if any, orders should be made as to the costs of these proceedings.</p><p>My parents were born overseas, my father in Cyprus and my mother in Greece. I was born in Australia. I have always considered that I am only an Australian and only an Australian citizen and that my allegiance is only to Australia. Out of an abundance of caution prior to the 2007 election, I renounced any potential rights to citizenship of Greece and Cyprus, and I have confirmation that I am not, nor ever have been, a Greek or Cypriot citizen. However, it came to my attention last month that I may have some form of British citizenship. I approached the British Home Office, and they advised me that in their view I was a British overseas citizen.</p><p>Subsequent to that date I have made further inquiries, and, if I ever were a British citizen, I have out of an abundance of caution renounced it—and this renunciation has been confirmed. This matter must now be determined by the High Court of Australia sitting as the Court of Disputed Returns.</p> <p class="speaker">George Brandis</p><p>The government will be supporting this motion, and we are of the view that Senator Xenophon has done the right thing in proposing this reference. That being said, Senator Xenophon's case illustrates how silly this has become. As the Prime Minister said the other day, if Nick Xenophon is an Englishman, the Pope is a Methodist.</p><p>On the basis of the facts as we understand them, and as presently advised, the government are of the view that Senator Xenophon is not disqualified under section 44(i) of the Constitution, and we will be making a submission to that effect in the proceedings before the Court of Disputed Returns.</p><p>Question agreed to.</p> <p class="speaker">Pauline Hanson</p><p>I seek leave to move a motion relating to a review of the qualifications of senators under section 44 of the Constitution.</p><p>Leave not granted.</p><p>Pursuant to contingent notice of motion I move:</p><p class="italic">That so much of standing—</p> <p class="speaker">Stephen Parry</p><p>Order. A point of order, Senator Wong?</p> <p class="speaker">Penny Wong</p><p>Through you, Mr President: it's entirely a matter for Senator Hanson if she wishes to extend the courtesy. I understand that there are two senators who were seeking leave to make a short statement. I am wondering if the senator would postpone this debate to enable that to occur and then we can proceed. She is within her rights to move suspension of standing orders. But, if she were prepared to extend the courtesy, it would be appreciated.</p> <p class="speaker">Stephen Parry</p><p>Senator Hanson, you've heard Senator Wong's request—rather than point of order—and I'm happy to entertain that. Would you consider the two other matters being dealt with first? It would actually facilitate it all being kept in the same—</p> <p class="speaker">Pauline Hanson</p><p>I'm agreeable to that.</p> <p class="speaker">Stephen Parry</p><p>I can guarantee we will come back to you, and you will have the right then to continue.</p> <p class="speaker">Derryn Hinch</p><p>by leave—According to media reports, allegedly I could be in breach of section 44 of the Constitution because I hold an irrevocable social security number in the United States and am eligible for a pension in that country, having paid a social security tax for 10 years 50 years ago—a pension I do not claim. The claim is on the breach of a clause that says a person cannot be:</p><p class="italic">… entitled to the rights or privileges of a subject or a citizen of a foreign power; …</p><p>I am not so entitled. I cannot vote in the US or work in the US. I am not a citizen of the United States, nor have I ever held a green card. A superannuation-style pension, I believe, is neither a right nor a privilege in any country. Several constitutional lawyers agree with me and so does the Attorney-General.</p><p>After seeking legal advice, the government will not refer me to the High Court. I've been advised by Senator Wong that the opposition agrees with that decision. I think such a referral would be a waste of the High Court's precious time and, possibly, taxpayers' money. I thank Senator Brandis and Senator Wong for their involvement, and I think that that ends the matter. But I do still believe that this chamber should vote to have an independent auditor examine the validity of every member in this chamber and also in the other place. Thank you.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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