George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

The government will be supporting this motion. Let me make it clear that the government will be supporting this motion because the decision to move it has been made by Pauline Hanson's One Nation Party on behalf of one of their own senators. But I do point out to colleagues that we need to be very careful here about the circumstances in which section 44 of the Constitution is invoked by this chamber.

Yesterday, I moved that Senator Canavan be referred to the Court of Disputed Returns, because Senator Canavan was of the view, which the Prime Minister and I shared, that the matter ought to go to the Court of Disputed Returns, in view of the history of matters concerning him, which I won't repeat now. The government supported Senator Di Natale referring Scott Ludlam and Larissa Waters to the Court of Disputed Returns, in light of the fact that they themselves had acknowledged that they considered themselves to be in breach of subparagraph 1 of section 44 of the Constitution and had indeed resigned their place in the chamber or at least purported to resign their place in the chamber.

I understand that Senator Roberts, with whom I spoke this morning, maintains that he considers that he is not in breach of subparagraph 1 of section 44 of the Constitution, as does Senator Canavan. He is entitled to maintain that position, to put his position to the Court of Disputed Returns, and obviously he will respect the outcome. Let me emphasise the point—it was a point actually made by Senator Wong in her contribution yesterday—that there is an issue of the onus of proof in proceedings of this kind. When a person is declared elected to either house of this parliament, after lodging an apparently regular nomination and being declared to have been regularly elected by the Commonwealth electoral officer for their state, then they are a senator or a member.

They are a senator until either they resign or are declared to have been disqualified under section 44. Where doubts arise about whether or not a member of this chamber or of the other place is in breach of section 44, then, while each case turns on its own particular facts, those who assert against a senator that they were not capable of being chosen because of a prohibition or ground of disqualification under section 44 must demonstrate why it is they claim that the senator or member of the House of Representatives is disqualified. Now, I have seen nothing, literally nothing, other than unverified and undocumented allegations in relation to Senator Roberts.

I caution the Senate that it is a very dangerous course for this chamber or any parliamentary chamber to decide on what might be a party-line vote in the absence of clear evidence that a member of this chamber is not eligible to be here. In fact, that is why we have the provision of the Commonwealth Electoral Act, which enables the chamber to refer the matter to the Court of Disputed Returns. Of course, it's not this chamber that makes that ultimate determination; it is the High Court of Australia sitting as the Court of Disputed Returns. But even such a reference, although not ultimately dispositive of the issue, is something that should never be made lightly and should never be done on a party-line vote.

In view of what has been said against him and the doubts that have been raised about his eligibility, Senator Roberts has taken counsel, as has his leader, and has decided upon this course of action. In view of that, the government will support, as I said before, the motion that Senator Hanson has moved. I know that Senator Roberts asserts that he is not disqualified by section 44. Until somebody demonstrates to the contrary, that is the way in which he deserves to be treated.

This has been a parliament in which we have now had six references by the chamber from among its 76 members. One might be forgiven for thinking that being a senator is one of the most hazardous occupations in Australia at the moment, with six people declared elected at the 2016 election either resigning or being referred to the Court of Disputed Returns. I respect the fact—and I think we all ought to respect the fact—that Senator Roberts has submitted himself to this process. No doubt the Court of Disputed Returns will understand the importance of dealing with this, as well as the other references, expeditiously, given that they relate to an issue of vital national importance, namely the proper composition of a house of the parliament.

In concluding these brief remarks, let me say once again: we should be slow to regard this as a precedent. We should never accept, as either a precedent or an appropriate constitutional practice, that, absent clear evidence, an apparently regularly elected member of this chamber or of the other place should ever be referred by the chamber under the provisions of the Commonwealth Electoral Act on a party-line vote.