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Monday, 7 November 2016
Page: 1915

Senator WONG (South AustraliaLeader of the Opposition in the Senate) (12:49): Mr President, this morning you tabled information which raises complex and difficult questions for the Senate to resolve. The government has come to the view that the eligibility of Mr Day to have been elected to this chamber is in doubt. Given the complexity of these issues, we agree it is desirable to send this matter to the High Court so that it may, as the Court of Disputed Returns under the act, resolve these matters beyond any doubt. Reference of this matter to the High Court sitting as the Court of Disputed Returns protects the interests of the parliament and the integrity of our electoral system. That is why this provision is in the Electoral Act, it is why we believe the government has done the right thing in moving this motion, and it is why the opposition will be supporting it.

Before I turn to the details of the motion before the Senate, I want to make this point: the opposition—and indeed, many Australians—believe that there are serious questions to be answered about the conduct of ministers of this government in this matter: who knew what, and when. How can it be that a government would contemplate, let alone enter into, an arrangement that appears to have left a senator ineligible to serve and, seemingly, ineligible to have been elected? What is clear is that this government was prepared to repeatedly turn a blind eye to Senator Day's office arrangements to avoid losing a trusted Senate ally. This is a mess of the government's own making. However, these are questions for another time, given the gravity of the motion before the chamber. For the purpose of this vote, the focus now needs to be on resolving the referral to the High Court so that these fundamental issues relating to the composition of the Senate can be resolved.

In the case of Mr Day, there are three substantive questions set out in the motion. The question at paragraph (a) goes to the heart of his eligibility to be chosen as a senator. As you know, Mr President, section 44 (v) of the Constitution provides that any person who:

has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Serious questions arise about whether Mr Day was ever eligible to be elected as a senator for South Australia. The facts as we now know them suggest that, from his first election to this place in 2013 and before he took up his seat in July 2014, Mr Day was seeking to enter into an arrangement with the Commonwealth through the Department of Finance to rent his property at 77 Fullarton Road, Kent Town Adelaide.

The government has advice that the actions of Mr Day in structuring the ownership and payment for the property at Fullarton Road in the way he did created an indirect pecuniary interest in an agreement with the Public Service of the Commonwealth. On this basis Mr Day was incapable of sitting as a senator from the time of the agreement and, crucially, was arguably incapable of being chosen as a senator at the election on 2 July.

Whilst it was appropriate that the President tabled this morning some of the information the government has in its possession, it is still not clear that all relevant information is on the public record. This is a concern for the Senate, as the Senate should have all the relevant information before it in making this decision.

We must also ensure that the Court of Disputed Returns has before it all relevant information to enable it to best resolve the questions that the Senate refers. We believe it is essential that the government confirms that it will provide to the court all of the documents that were given by it to the Queen's Counsel who was asked to advise on the eligibility of Mr Day. The mere fact that such documents were thought to be of sufficient import to be given to counsel strongly suggests they should also be given to the court.

Whilst the government has tabled a range of information this morning, many senators are still at a considerable disadvantage in this debate, as we have not seen the legal advice that has led the government to introduce this motion. We have not seen the advice from David Jackson QC that brings the relevant facts together and analyses them in light of the provisions of section 44(v) of the Constitution, so members of this Senate are being asked to make a decision to refer a question relating to the membership of this chamber to the High Court without having all the information that is required.

This could have and ought to have been handled very differently. Several years ago a question arose relating to Senator Scullion and this same provision—and I am not saying this to impugn Senator Scullion in any way. Senator Scullion himself raised the issue in this place by writing to the President identifying the possibility that a contractual relationship between his family company and the Commonwealth might put him in breach of that section of the Constitution. Legal advice from counsel was obtained and tabled in this chamber, so all senators could understand the issues. This enabled the Senate to deal with the matter appropriately.

As I have made clear both privately and publicly to the government, the opposition will be supporting this referral. We believe it is the responsible thing to do. But I emphasise that the approach taken in the case of Senator Scullion would have been far preferable. It would have allowed senators to make a truly informed decision on this referral. It would have allowed greater public transparency around the matters which are at issue in Mr Day's case, matters about which there is considerable and understandable public interest.

The government has advice from a leading constitutional lawyer that could assist all senators. The advice relates to a question that is a matter for the Senate—not for the government alone—and it is extremely disappointing that the government will not assist the Senate by providing this advice. On such an important issue the government should show us this advice.

Whilst the opposition is, as I said, disappointed that the government remains unwilling to provide senators with the advice that led the government to conclude that this matter needed to be the subject of the very motion we are debating, the opposition does acknowledge the government's decision to frame the resolution broadly. Question (a) asks the court to consider not just the prohibition on direct or indirect pecuniary interests in section 44(v) of the Constitution but also whether Mr Day was ineligible for any other reason.

This is of importance. If we look at the Wood case, we see that the original challenge to Mr Wood's election in the Nile v Wood proceedings was not founded on his citizenship. This aspect arose later. Whilst it appears that there is a serious prospect that Mr Day was incapable of sitting as, or of being chosen to be, a senator due to the very unusual arrangements that were put in place with respect to his electorate office, it is not necessarily clear that this is the only reason he may have been ineligible to be a senator.

Questions remain as to Mr Day's solvency, and there are questions relating to Mr Day's success in securing a government grant for an organisation of which he was a director. It is wise for the Senate to not construe this referral narrowly. Whilst determining Mr Day's eligibility to serve in the Senate is an important first step, determining the consequences of his ineligibility is also crucially important. This is especially so given Mr Day's purported resignation last week. Again, I put on record our appreciation of the government's willingness to draft the relevant question broadly.

From the facts, as set out by the government, the trigger for Mr Day's ineligibility occurred on 1 December 2015 when the Department of Finance entered into a lease for Mr Day's electorate office with Fullarton Investments Pty Ltd. It appears this lease continued in force until terminated by the Special Minister of State, Senator Ryan, on 7 October this year. If this view were to be accepted by the court, it would follow that Mr Day was, in the words of section 44 of the Constitution, incapable of being chosen as a senator in the election on 2 July.

This would mean that Mr Day could not simply be replaced using the mechanism for casual vacancies set out in section 15 of the Constitution. If Mr Day had never been validly elected as a senator, he could not vacate a seat he had never properly held. If he were incapable of being chosen on 2 July, it must be determined who the people of South Australia actually chose from the eligible candidates at the election. It seems likely a recount will be necessary, but just how to conduct such a recount is a matter that the court would need to determine. This matter is further complicated by the changes to the voting system for the Senate made earlier this year. It will be a serious matter for the court to consider.

When Mr Wood was found ineligible for election, his below-the-line votes were distributed according to second preference. However, the issue of how to treat above-the-line votes for the Nuclear Disarmament Party ticket also arose. Section 168 of the Commonwealth Electoral Act required then, and still requires now, that, in order to have a group ticket, a party must have two or more candidates. The ineligibility of Mr Wood meant that the NDP did not meet that requirement.

Given the voting system as it stood at the 1987 election, if the ticket had been struck out, all votes given to that ticket would have been discounted. However, following the changes made this year, section 239 of the Commonwealth Electoral Act now provides that to vote above the line for the Senate a voter must write at least the numbers 1 to 6 in the squares above the line. The ballot paper clearly states that to vote above the line a voter should number at least six boxes above the line. This means that if the Family First group ticket box is invalid, due to the combined effects of Mr Day's ineligibility and the operation of section 168, the votes of Family First above-the-line voters can still be counted by allocating them to the party that received the second preference.

Question (b) asked the court by what means and in what manner the vacancy should be filled. These are not simple matters. The interaction of above-the-line preferences and the requirements of section 168 have not yet been considered by the courts. These are issues we can expect that the court will have to consider carefully in the event that Mr Day was, in fact, ineligible to be chosen.

The third substantive question in the motion before the chamber asked the court to consider whether Mr Day was ineligible to sit as a senator in the 44th Parliament. I indicate that this is not a question that the opposition sought to have included in the motion but we accept that it is the government's preference to so include it.

Questions relating to the composition of this chamber go to the heart of representation in our democracy. Earlier this year we spent many hours debating what the rules for electing senators should be. It is unfortunate that we now find ourselves in the position of having to seek the guidance of the High Court to clarify who was properly chosen to sit in this chamber. It is a rare and unusual occurrence for this to happen. As I indicated at the outset, there are unresolved questions about how this situation arose. Whilst I do not intend to examine these in the course of this contribution, the opposition does intend to take seriously its role in scrutinising the decisions of the government that have led us to this point. They may also be reason for this Senate to look again at the processes around nominations and vetting candidate eligibility. Again, those are issues for another time. For now, I indicate that the opposition supports the referral of this matter and looks forward to the High Court's consideration and decision.

The PRESIDENT: Thank you, Senator Wong. In your speech you said that Senator Day purportedly resigned last week. It may just be a misuse of phrase, but he did resign and I tabled the documentation this morning.

Senator WONG: by leave—I was actually making a legal point, Mr President, because he was not a senator then. It was not a suggestion that you, as President, had done anything other than communicate the resignation.

The PRESIDENT: Thank you. Senator Waters.