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Monday, 7 November 2016
Page: 1920

Senator GALLAGHER (Australian Capital TerritoryManager of Opposition Business in the Senate) (13:09): I welcome the opportunity to speak briefly to this motion. As outlined by Senator Wong, the opposition will support this motion, which seeks to refer pursuant to section 376 of the Commonwealth Electoral Act a number of questions about the qualification of Mr Day to the Court of Disputed Returns. We do so on the basis of due and proper process, a concern for the integrity and stability of our parliamentary system and the need for certainty about the lawful status of individuals who sit as senators representing the Australian people in this place.

The opposition's overriding concern is to resolve these complex matters in an orderly manner with an eye to protecting the institutional norms of the Senate and the integrity of electoral law in this country. The role of the Senate in matters of this kind is spelled out in the Commonwealth Electoral Act. Section 376 of the Commonwealth Electoral Act gives the Senate the power to refer questions about the qualification of a senator or in relation to vacancy to the High Court carrying out its function as the Court of Disputed Returns. Section 377 provides that the President of the Senate:

… shall transmit to the Court of Disputed Returns a statement of the question upon which the determination of the Court is desired, together with any proceedings, papers, reports, or documents relating to the question in the possession of the House in which the question arises.

It is worth remembering that, while questions about the qualification of senators were originally the sole jurisdiction of the Senate by virtue of section 47 of the Constitution, successive enactments since the passage of the 1902 version of Commonwealth Electoral Act have had the effect of largely transferring this power to the courts. While there are questions about what residual powers this place might still have in these matters, I think we would all concede that judicial resolution of questions relating to qualification of senators and disputed returns has the advantage of removing some elements of the political calculus that potentially attend and potentially colour parliamentary adjudication.

Notwithstanding the progressive transfer of jurisdiction to the High Court, the Senate's power of referral in this matter is significant. Where a motion of this—thankfully rare—kind is proposed, the Senate has a role to consider whether the known circumstances are sufficient to reasonably generate the questions of the sort that warrant a referral under section 376. The Senate must act as a filter, determining whether or not there is adequate cause to involve the court.

In agreeing to this motion, the opposition has had regard to the facts as they are currently understood, the relevant provisions of the Commonwealth Electoral Act, relevant constitutional matters and the broader role of the Senate and its practice in exercising its referral powers in these matters. The opposition has determined that, on balance, the circumstances do reasonably and, in fact, necessarily generate the questions that have arisen and which appear in the motion, and that there is sufficient cause to involve the court.

The provisions contained in section 44 of the Constitution establish five grounds for disqualification, any one of which, where it is found to apply to a person, renders that person 'incapable of being chosen or of sitting as a Senator'. Odgers' Australian Senate Practice draws attention to the rationale of the disqualification provisions embodied in section 44. For the broader context, what Odgers has to say is worth repeating in full:

The rationale of these disqualifications provisions is that they prevent senators being subject to undue external influence which could prejudice their performance of their duties. A person having an allegiance to a foreign power could be unduly influenced by that power. A person under sentence for an offence is subject to the control of the executive government. An undischarged bankrupt or insolvent is subject to the control of creditors or the courts. A person holding an executive government position could be subject to undue influence by the executive government. The granting of a pension at the discretion of the executive government could obviously be used to buy allegiance of senators. A person having an interest in an agreement with the Commonwealth could similarly be subject to such undue influence, and could also be influenced by personal interest in performing the legislative duties of a senator.

Paragraph (a) of the Day motion seeks to put before the court the question as to:

… whether, by reason of s 44(v) of the Constitution, or for any other reason, there is a vacancy in the representation of South Australia in the Senate …

Section 44(v), of course, relates to disqualification on the grounds that a person has 'any direct or indirect interest in any agreement with the Public Service of the Commonwealth'. The question in paragraph (a) arises from the known circumstances available in the public domain and now with the tabling of certain documents by the President in this chamber this morning about Mr Day's intention to seek 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 Senate, again through information in the public domain and through the tabled documents this morning, is aware that the government has received advice indicating that the arrangements Mr Day put in place to rent his property in the way that he did could create a pecuniary interest in an agreement with the Public Service of the Commonwealth that engages section 44(v).

As Senator Wong has made clear, there is an asymmetry between the Senate's knowledge of all the Day matters I have just mentioned and the government's knowledge. Nor does the Senate have the benefit of the legal advice prepared by David Jackson QC and provided to the government as to how the facts interact with section 44(v) and what the High Court, sitting as the Court of Disputed Returns, might make of it all. This is all information that the government is uniquely placed to provide but, for whatever reason, has chosen not to. The Senate must be confident that a complete and comprehensive record of documents has been provided to this chamber in order to facilitate and support debate on this motion, but also in transmitting those same records to the Court of Disputed Returns as envisaged by section 377 of the Commonwealth Electoral Act.

Earlier, Senator Wong contrasted the handling of the matter before us with the handling of a section 44 matter in relation to Senator Scullion. In that case, the Senate was involved from the outset, it was given all the facts of the matter and was able to assess legal advice as to how those facts interacted with section 44(v). The proper course for the government to have followed in this matter would have been for it to have provided a complete statement of the facts as they were known and to have tabled in this place all the papers, documents and other information, including any legal advice, that it has received. Such an approach is not a mere courtesy on the part of the government but a fundamental obligation it has to the Senate in the performance of the Senate's accountability and scrutiny functions. It is also an important protection to ensure that vexatious or frivolous referrals are not sought from the Senate in the pursuit of some broader political objective. Given the Senate's role as a referrer and as a filter in these matters, the Senate is at a distinct disadvantage to fulfil its deliberative capacity by anything short of a full and timely disclosure on the part of the government.

This motion is not about accountability of the government to the parliament, but about the resolution of legal questions. I will return to these in a moment. However, the involvement of the government in some of the events that have led us to the point where we find ourselves today will remain of ongoing interest to the Senate.

Non-government senators should be debating this motion on the basis that the government have provided a full and comprehensive record of all of the documents available to them in relation to Mr Day's case. But we already know that is not the case, with their open refusal to provide their legal advice pertaining to the matters directly invoked by this motion. It is a legitimate concern for the opposition to raise these points and for the Senate to consider whether the Court of Disputed Returns will have before it all relevant information to enable it to best resolve the questions that will be referred. The reason for this concern is that the government have already indicated that they do not intend to provide to the court all of the documents that were given by them to the QC who was asked to advise on the eligibility of Mr Day. It is also entirely possible that there are other important documents in the possession of the government which should be transmitted to the court. Surely, in a matter of such constitutional importance, all efforts should be made to make sure the court is fully informed when it deals with the questions before it. The integrity of the process, the transparency of the process and the trust in the process demand nothing less.

Despite the concerns we have raised about appropriate access to information the opposition is satisfied, from the information available, that there are reasonable questions that the court needs to address in relation to section 44(v). The way in which the motion is drafted allows the court to consider other reasons that Mr Day may be found to have been incapable of being chosen or of sitting as a senator; that is, beyond the matter of the rental of the Fullarton Road property. This is appropriate. The matter of Mr Day's solvency and the awarding of a grant to North East Vocational College, of which Mr Day was a director, also offer up potential reasons for disqualification. The motion before us enables the court to examine these issues as it sees fit.

In the event that the court finds that there is a vacancy created as a result of Mr Day having been found to be incapable of being chosen as senator or to sit in the Senate, paragraph (b) of the motion asks the court to set its mind to both the means by which the vacancy has arisen and the manner in which the vacancy should be filled. The manner of Mr Day's ineligibility, should it be found by the court to exist, has significant implications for how the question of remedies might be adjudicated. As Senator Wong pointed out, in the event that the court determines that 1 December 2015 is the date on which Mr Day became ineligible as a result of the leasing arrangements that were put in place between the Department of Finance and Fullarton Investments, then it is open for the court to find that Mr Day was, from that point forward, ineligible to sit in the Australian Senate and was also incapable of being chosen as a senator at the 2016 election. In these circumstances, the prospect of Mr Day being replaced, not as a casual vacancy but through a recount, becomes a live question. Paragraph (b) of the motion permits the court to consider the method by which a recount would be conducted in such circumstances. It also leaves the court open to consider whether the Family First box on the South Australian Senate ballot paper was valid, given that the group ticket requirements could be found not to have been met by reason of Mr Day's ineligibility. If this line of reasoning were adopted, the court would be open to rule that above-the-line votes are to be allocated to the party that received voters' second preferences. These are all matters which, under this motion, sit appropriately within the ambit of the court.

These are serious matters with potentially serious outcomes. The opposition regards this motion as opening up the proper path towards their resolution.