Tuesday, 15 August 2017
Legal and Constitutional Affairs References Committee; Reference
(1) That the Senate notes that there are now questions surrounding the citizenship of at least two current senators and one member of the House of Representatives.
(2) That the following matters be referred to the Legal and Constitutional Affairs References Committee for inquiry and report by 14 September 2017:
(a) the eligibility of Senators in the 45th Parliament under Section 44 of the Constitution in so far as it relates to being 'a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power';
(b) the legal liability of Senators who know, or have grounds to suspect, that they are ineligible for office but do not come forward with that information, and whether they are defrauding the Commonwealth; and
(c) any other related matters.
(3) For the purposes of carrying out the inquiry, the Committee must as soon as practicable, with the approval of the President, appoint an independent auditor, or auditors, with expertise in migration, citizenship and constitutional law to assist the Committee.
(4) The independent auditor or auditors will be able to request to the Committee to use its powers to order the production of documents from Senators and order them to appear as witnesses and answer questions.
(5) On behalf of the Committee, the independent auditor or auditors may present to representatives of foreign governments in Australia and seek information.
The government opposes the motion. The calling into question of a senator's eligibility to sit in this place is a very serious step, and that step should only be taken in cases where there is a clear case to answer. The motion seeks to turn this long-accepted principle on its head, effectively calling into question every senator's position until he or she is able to provide conclusive proof of his or her citizenship status. That would constitute a wrong-headed reversal of the onus of proof, especially given the undoubted public interest in certainty for the composition of the parliament. Further, another referral would only add to the existing workloads of Senate committees, and the committee secretariats in particular.
The opposition will not be supporting this motion. The Senate dealt with, and negated, a very similar motion to this last week. I remind the Senate that when a similar proposal was considered in 1999, Senator Bob Brown, on behalf of the Australian Greens, said:
One of the problems is the reversal of the onus of proof. … I am concerned that it could be followed up by a wide variety of motions which require members of parliament to attest to their propriety without there having been any evidence that they had acted with impropriety.
Labor has taken a consistent approach on similar matters for several years. It reflects the past position of those opposite and the Australian Greens. Labor does not support reversing the onus of proof and requiring all senators to prove their eligibility where no question has arisen. However, where the public record reveals serious credible doubts, the only appropriate resolution is through a referral to the one body that can make an authoritative determination—that is, the High Court of Australia.
Look, the reason the Greens have put forward this motion for a comprehensive audit of all MPs is precisely because we can't rely on individual members of parliament coming forward and raising the questions themselves about their eligibility to stand in parliament. If the most recent episode with the Deputy Prime Minister, Barnaby Joyce, highlights anything, it highlights that we cannot rely on individuals to fess up. Indeed, it took pressure from some committed journalists within the media, and I do have to pay specific tribute to both Adam Gartrell and Amy Remeikis from the Fairfax papers, who pursued this. It was only after the Deputy Prime Minister was to be outed publicly that he made this acknowledgement. We need to have a comprehensive audit and we need to give some certainty to an issue that is creating great uncertainty in this parliament.