Senator BROWN (9:56 AM) —I move:

(1) Whether there is a vacancy in the representation of the Northern Territory consequent on the matters disclosed by Senator Scullion to the President on 10 May 2002.

(2) If so, whether such vacancy may be filled by the further counting or recounting of ballot papers cast for candidates for election for Senators for the Northern Territory.

(3) Alternatively, whether there is a casual vacancy for one Senator for the Northern Territory within the meaning of section 44 of the Commonwealth Electoral Act 1918”.

We are dealing with a very important matter. Senator Scullion brought the matter before the Senate on 10 May last year and it is a question of the validity of him holding the seat in the Senate. Let me say at the outset, I like Senator Scullion and this amendment I have moved here has nothing whatever to do with the senator. Indeed, I have a great deal of difficulty with section 44 of the Constitution. You will know, Mr President, that I have moved in this place to amend the Constitution so that it does not unfairly catch up, over trivial matters in particular, people who have been involved in some contractual arrangement with the government and, moreover, so that it does not prevent millions of Australian citizens from standing for parliament simply because they are under some contractual arrangement with the government—that is, employment or other contractual arrangements such as pensions or, indeed, because they have dual citizenship.

Mr President, just a couple of months ago my bill before the Senate to rectify these matters through giving the people the opportunity at referendum to bring the Constitution up to date, while it received a majority here did not receive an absolute majority because the government—including, if my recollection is right on that occasion, Senator Scullion—voted against it. Where senators may have fallen foul of section 44 of the Constitution the process has been that the matter goes to the Court of Disputed Returns—that is, the High Court. That is the proper entity to be dealing with matters such as this.

I think we are trespassing on very unsound ground when the Senate moves to get legal advice before making that determination. I have not been party to that determination because I did not believe the process was right from the outset. I think that this is a simple matter—that is, where doubt arises about the validity of anybody holding their place in the Senate, that should be determined by the rightful authority, which is the High Court acting as the Court of Disputed Returns. I note that this matter has now taken some 16 months to get to the stage where the Senate is, through this motion from the government, seeking legal advice from Mr Shaw QC. In my view, that is not going to settle the matter. Whatever Mr Shaw's advice may be, that will leave the matter open to other advice. Ultimately, you cannot settle this matter except through a determination by the High Court. That is why I have moved an amendment.

I think that we are in the dangerous constitutional territory of being seen to be dilatory about this matter, recognising that there is inevitably another federal election coming down the line. The efflux of time will mean that the matter is never determined. Also, and I am sure senators will contribute to this debate as to why this course of action is being taken, the Senate is ostensibly being asked to seek legal advice when the best legal advice—the determining, definitive and historical source of legal advice—has been the High Court. I do not believe that we should be acting as an intermediary in this matter in which the potential conclusion that a disinterested bystander could come to is that the matter is being truncated and held up and is going to a single source of legal advice which, in turn, can be disputed.

What is wrong here is section 44 of the Constitution. This chamber voted not to give the people of Australia the right to determine that matter when it voted against my bill just a couple of months ago—and it was the government itself that voted against that. I will be bringing that bill back because I think this is just the sort of situation we should not be in; we should have it clarified. The Constitution is unfair, not just potentially to some senators who get caught up and have my greatest sympathy. I have seen this happen time and time again, not just here but in the Tasmanian parliament, where, under the Constitution Act 1934, members of both houses of parliament were frequently caught up because they had some trivial contractual arrangement with the government. But again, despite bringing legislation before the Tasmanian parliament more than a decade ago, it has not been fixed. There is some sort of impediment to the collective minds of members of parliament to want to go ahead and fix up a very serious glitch in a constitution such as we have here. That can be determined at some other time. I can assure you that I will give the Senate another opportunity to do that. But I hope that senators will keep this situation in mind when that occurs.

This is very unfair to Senator Scullion and so too it is unfair to the nation, which expects that the Constitution will be upheld and that, where there is some doubt about constitutional infringement, it will be settled quickly. In the case of Senator Woods in 1988, it was Senator Ray, the then Minister for Home Affairs, who moved a similar motion to my amendment because, on that occasion, there was a dispute about citizenship. Going back further still, Senator Webster's case was similar. We should not leave this situation to recur. When the Senate determines that it is not going to fix, change or give the opportunity through a referendum for a remedy to the shortcomings of the Constitution in this matter, it must live with the consequences. That is why, when doubt arises over a senator's position, it should be a matter that we refer to the High Court for determination. It is as simple as that.