Senate debates

Wednesday, 6 December 2017

Parliamentary Representation

Gallagher, Senator Katy; Qualifications of Senators

9:38 am

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

by leave—I move:

That, pursuant to section 376 of the Commonwealth Electoral Act 1918, the Senate refers to the Court of Disputed Returns the following questions—

(a) whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation of the Australian Capital Territory in the Senate for the place for which Katy Gallagher was returned;

(b) if the answer to Question (a) is "yes", by what means and in what manner that vacancy should be filled;

(c) what directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference; and

(d) what, if any, orders should be made as to the costs of these proceedings.

I understand a copy of the motion is now being circulated in the chamber.

In relation to the motion, I have some brief remarks. Senator Gallagher has today requested that her citizenship status be referred to the High Court to bring an end to the attacks on her that are undermining the legitimacy and dignity of this chamber. In taking this step, she and the Labor Party do not in any way resile from the position we have taken since day one: that Senator Gallagher has taken all the steps required under the Australian Constitution to qualify to stand for election as a member of this parliament. But it is now clear the attacks on her will not stop, that these attacks are undermining the dignity and standing of this parliament, and the only way to bring an end to the attacks and restore the standing and dignity of this Senate is to have the High Court settle this once and for all.

The Labor Party takes this step notwithstanding the fact that we have compelling legal advice that Senator Gallagher is entirely qualified to be a member of this parliament. That is because, unlike some in the coalition, she took all necessary steps required to renounce any claim she may have held to dual citizenship. This is in stark contrast to Mr Joyce, Mr Alexander and former Senators Nash and Parry, who never took any steps to check if they were eligible. Like others, and unlike those members and senators, Senator Gallagher met the express test set out by the High Court in Re Canavan at paragraph 72, which states:

Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power, the constitutional imperative—

that an Australian citizen not be irremediably prevented by foreign law from participation in representative government—

is engaged.

There is absolutely no doubt Senator Gallagher applied to renounce any entitlement to British citizenship she may have had well before nominations closed for the 2016 election.

In fact, Senator Gallagher has provided the Senate with advice from Adrian Berry of the London bar, a leading expert on British citizenship law, that not only did she take all reasonable steps but she went further: she took all necessary steps to renounce British citizenship according to British law. In other words, Senator Gallagher could not have done any more to renounce her British citizenship in good time before that election was even called. The British Home Office took 118 days to process her renunciation, and I note in passing that Mr Alexander was recently able to have his renunciation processed within one week. It is not within Senator Gallagher's power to determine the time it takes a foreign government to process her renunciation. Labor is therefore confident that Senator Gallagher is constitutionally entitled. As Professor George Williams has stated this morning in The Sydney Morning Herald:

… it is difficult to see the court disqualifying a person because the bureaucracy of another country has taken months to process an application form. There is a low risk of these members offending section 44.

It is not just the case that Senator Gallagher's eligibility is beyond question; so too is her integrity. Those opposite, and everyone in this place, know it. It is now incumbent on the government to follow Labor's lead and ensure that, after it has lost two senators, there are no further doubts over the standing of its senators. Labor does not believe in using this chamber for partisan referrals. For this reason, and in light of Senator Sinodinos's medical circumstances, Labor will not be seeking to refer Senator Sinodinos at this point. However, we note there is significant legal contention about his citizenship status that the government and the chamber may need to consider in due course. For now, we leave that for the government to reflect upon.


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