Senate debates

Tuesday, 5 September 2017

Questions without Notice: Take Note of Answers

Deputy Leader of the Nationals

4:12 pm

Photo of Jenny McAllisterJenny McAllister (NSW, Australian Labor Party) Share this | Hansard source

I note that almost nothing provided in the contribution from Senator Reynolds deals with the questions being asked today in the chamber. Senator Reynolds has outlined the steps that Senator Nash took to clarify her citizenship status by seeking legal advice, but the questions we asked today were not about that. The questions we asked today sought to understand the basis of Senator Nash's decision to retain her position as a minister and to continue to exercise her functions as a minister. I am extremely surprised at the cavalier way Senator Nash brushed off those questions, because other people don't think they are trivial.

George Williams, as everybody understands, dean of law, acknowledged constitutional expert, gave an address last week to the National Press Club and explained the problem in quite a bit of detail. He advised that the wisest course for ministers Nash and Joyce would be to refrain from making decisions, or to step down pending the outcome of the High Court hearing. He said:

This was because their authority to run their departments and to make decisions under legislation depends upon the law regarding them as being properly appointed. Section 64 of the constitution says that 'no minister of state shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives'.

If current ministers are ruled in breach of section 44, they will have made many decisions without apparent legal support from when the three-month period of grace ran out late last year. This would be especially problematic from the point at which they and members of the public became aware they were in jeopardy of being disqualified. Decisions from this point on, including any about contentious matters such as Adani's Carmichael coal mine in Queensland, might be challenged in the courts.

It is that issue we are seeking to explore with Senator Nash today, and it is that issue she comprehensively avoided in every answer she provided.

She maintains she is not required to disclose legal advice. That may or may not be so, but she was not asked to do that. She was asked by Senator Collins: 'Who sought the advice, and when and from whom was the advice received?' and, 'How have decision-making processes been varied as a result of that advice?' She refused to answer any of those questions of process. These are ordinary questions of process which are routinely answered in this chamber and in the committees of the Senate. Her refusal to answer speaks to absolute contempt for this chamber and also for the public, who have a right to understand the basis on which she continues to exercise her functions. If advice has been sought then the minister ought to provide the details we have requested: who provided it, when and who requested it?

I want to observe also that Senator Nash has used very precise language in describing her own decisions since referring herself to the High Court. On at least three occasions, she has told the Senate that she is entirely confident her decisions are 'well considered and appropriate'. It's nice that she is willing to give herself a pat on the back, but that doesn't answer the question that's at stake. Senator Wong's point of order today made it pretty clear. She asked if the decisions were 'beyond challenge'. My question yesterday to Senator Nash was very clear: 'On what basis can she assure us that her decisions will be valid?' The question isn't whether these are smart decisions—whether they are considered and appropriate. The question is: are they validly made? This is a question on which Senator Nash has provided no assurance.

The National Party is working at the very boundaries of acceptable constitutional and parliamentary practice. Serious doubts have been raised about the validity of ministerial decisions taken if ministers are indeed ineligible for election. Any serious party of government would have an answer to those questions and would take those questions seriously. But this is not a priority for the National Party. Their principal concern is to protect their guy: Deputy PM Barnaby Joyce. Their concern is to protect the National Party position in the 12th Senate spot in New South Wales, and they are willing to do that through overlooking serious concerns about the eligibility of their parliamentarians to sit as ministers. They provide no assurance for the residents of Geelong, none for the residents of Wide Bay, none for the general public, and it is unacceptable. (Time expired)

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