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Monday, 7 November 2016
Page: 1930

Senator WONG (South AustraliaLeader of the Opposition in the Senate) (13:50): Can I just, by way of starting, clarify that the document being tabled is the legal advice the government received from the Solicitor-General?

The PRESIDENT: Senator Culleton, do you want to clarify the documents that you are tabling?

Senator Culleton: Yes, I am just tabling a time line of the events at Guyra, the opinion from Justin Gleeson and the letter from Mr Brandis.

The PRESIDENT: Thank you. To clarify that matter, it does include the document you are inquiring about, Senator Wong.

Senator WONG: Thank you, Mr President. The opposition gave leave, and I am pleased the government did not demur on this occasion. It is a pity that Senator Culleton had to table the advice rather than the advice being provided, given the seriousness of the matter that is before the Senate. I again maintain the opposition's request, and I suspect there may well be other senators who would want it, for the advice provided to the government in respect of Mr Day.

I just want to make some very brief remarks in relation to the motion moved by Senator Brandis. Can I indicate at the outset that the opposition will be supporting the government's motion to refer the election of Senator Culleton to the Court of Disputed Returns. Can I say to Senator Culleton, through you, Mr President, that I understand this is a very distressing time for him personally. I also note his comments about not being provided with sufficient information. I would indicate to him that it was at the opposition's request that this debate occur some hours after the documents were tabled by the President because we thought all senators ought to have the opportunity, should they feel it necessary, to consider the facts of these matters before the motions were voted on.

The opposition is of the view that this is obviously a matter quite different from those matters relating to Mr Day. It is fundamentally a legal question as to the status of the legal position of Senator Culleton at the time of the election. The High Court in this matter is being asked to deal with some issues which are similar and some issues which are very different to the situation involving former Senator Day. Obviously the facts giving rise to this matter are quite different to the matters involving former Senator Day. However, the court is also being asked in relation to this matter not only to determine whether Senator Culleton is eligible to continue to sit or was ever entitled to be elected; it is also being asked to consider how to replace him should he be found ineligible to sit or incapable of being chosen.

I will make one comment on that point. The material difference between the two cases is that there were obviously three One Nation candidates on the Western Australian ballot paper at the election this year, so even if it were to be the case that the court finds Senator Culleton was ineligible to be chosen the very serious questions about the validity of the group ticket under section 168 of the Commonwealth Electoral Act that arise in the Day case do not appear to arise in this case.

It is an unfortunate day when the Senate finds itself having to refer one of the members of the chamber to the High Court. It is certainly not something we should do lightly. I make it very clear that the opposition make no judgement as to the merits of Senator Culleton's legal position. However, based on the information provided by the government and the facts in the public domain, we believe it is appropriate that the matter be referred. We look forward to the High Court's resolution of this issue.