Monday, 4 September 2017
Qualifications of Senators
by leave—I move:
(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.
As honourable senators are aware, on Thursday, 17 August, when the Senate last sat, Senator Nash made a statement to the Senate during the course of which she disclosed that she had a concern in relation to her eligibility to be chosen for the state of New South Wales because of subparagraph (i) of section 44 of the Constitution. Senator Nash was quite forthright, at the earliest opportunity, in raising that issue in the Senate.
The government has taken advice from the Commonwealth Solicitor-General. On the basis of that advice, I can advise the Senate that the government is of the view that Senator Nash is not ineligible to sit and was not incapable of being chosen. Nevertheless, in view of the matters raised by Senator Nash it seems a prudent course for the Senate to make a reference under section 376 of the Commonwealth Electoral Act, which is the purpose of this motion. The facts and circumstances were set out in Senator Nash's statement on 17 August. The history of the matter was related by me during the Senate Legal and Constitutional Affairs Committee spillover hearings on the morning of Friday 18 August. I will not detain the Senate by going over those circumstances again. Suffice it to say that Senator Nash acted very promptly and very properly, and we will be supporting this reference.
On behalf of the opposition, I make clear that we welcome the decision of the government to refer the Deputy Leader of The Nationals to the Court of Disputed Returns. Given the clear evidence that she may be a dual citizen, this is the right thing to do. However, we place on the record our grave concerns that the minister is refusing to follow the lead of her colleague, Senator Canavan, and standing aside as a minister. When there are real doubts about your right to sit in this parliament then you ought not be acting as a minister and taking important decisions as a member of the executive until that matter is resolved. Labor urges the minister to reconsider. Labor urges the minister to follow the lead of Senator Canavan, a minister who was put in precisely the same position as Senator Nash, but who, unlike Senator Nash, did the right thing. Senator Canavan said:
Given the uncertainty around this matter, I will stand aside until the matter is finally resolved and resign as Minister for Resources and Northern Australia.
That is the appropriate standard. It is the standard that has been set. It is the standard that should be followed.
On the behalf of the Australian Greens, we will also support this referral to the Court of Disputed Returns. I do take issue, however, with some of the comments of Senator Brandis, specifically with regard to the timing. It's my understanding that Senator Nash was aware of this on Monday, and yet it took until almost everybody had left this building late on Thursday for Senator Nash to come into an empty chamber to effectively disclose the fact that she was a dual citizen. I don't think that's prompt, with due respect. I think that's tawdry and I think it's treating this chamber with disrespect.
With regard to the decision to stand aside, we concur absolutely with Senator Wong that a precedent was set. We think that precedent should've gone further and that they should've followed the lead of former Greens senators, Senator Ludlam and Senator Waters, who effectively resigned from their position because of a very clear reading of section 44. However, in the absence of that, Senator Canavan made the decision to stand aside as a minister. That is a precedent that has not been followed by Mr Joyce in the lower house of parliament or now by Senator Nash here in the Senate. It casts a huge shadow over decisions that are being made by both of those ministers and throws this chamber and, indeed, the parliament, open to challenge for decisions made by both ministers while this question mark hangs over their heads. We now know that should a decision be made, for example, to throw a billion dollars at the Adani mine that it will be a decision that is challenged in the courts as a result of these decisions by both Senator Nash and, indeed, Mr Joyce not to stand aside from their positions as ministers.
Finally, another sitting week begins with a referral to the High Court. And we will be here again and again and again unless we have a full and comprehensive audit of all members of this parliament. This is something that needs to be dealt with quickly, regardless of the pain that might be inflicted on the government. Indeed, the Labor Party haven't carried themselves with any degree—I think—of openness or transparency by refusing completely to engage with questions around the eligibility of some of their members of parliament.
We now have every member of this crossbench say, very clearly, that they will subject themselves and members of their teams to a thorough and comprehensive independent audit. And yet we have both the Labor Party and the Liberal Party making it very, very clear that, when it comes to protecting their own interests, they will put their own interests ahead of the public interest. That is something the Greens wholeheartedly reject. My understanding is that every member of this crossbench, with the exception of Senator Leyonhjelm, has shown leadership on this issue and has shown the only way this issue can be resolved is with a thorough and comprehensive audit of all members of this parliament.
I support the government's decision to refer this matter to the High Court, as the Court of Disputed Returns. I also support what Senator Di Natale has said about the timing of Senator Nash going public with this. It was a classic case of the government doing a dump-and-run number at five minutes to midnight. I also support the Greens and the other members of the crossbench on the audit, and I urge the Liberals and the Nationals and the Labor Party to finally acquiesce to having an independent audit of all senators. I also think that Senator Nash should have followed Senator Canavan's example, which was the right example. Senator Brandis, you stood alongside Senator Canavan when he made the announcement that he was stepping down as a minister. I think that Senator Nash should step down as a minister, and so should the Deputy Prime Minister. Mr Joyce should not be leading this country when Prime Minister Turnbull is out of the country.
I don't want to prolong this, but the hypocrisy of the Greens political party knows no bounds. Senator Brandis explained the timing of Senator Nash's announcement. Senator McKim, from the Greens political party, was at the legal and constitutional affairs Senate spillover hearing the next day when this matter was raised. It wasn't on the agenda, but, because that committee has a very good chairman, we allowed those questions to be raised. Senator Hinch, who sometimes attends that estimates committee as a participating member—I think he was there on this day—asked questions, as did other senators, including Senator McKim, and it was very clear. As Senator Brandis has said, it's on the record. He didn't waste the time of the Senate by going through that record again. I urge all senators who might be interested in this to have a look at the timing. Senator Nash is without blame. In fact, she did the absolutely right thing almost to the second.
I only enter into this to highlight the hypocrisy of those senators who were there to question this, who went through it all, who understood the issues and who now have the temerity—the dishonesty I might add—to get up in this chamber and raise the issues that they've already fully canvassed, and which were very clearly explained by Senator Brandis. I urge all senators who are interested in this to actually have a look at the Hansard and you will, second by second, see how Senator Nash did exactly the right thing.
Question agreed to.
by leave—I move:
(a) whether by reason of s 44(i) of the Constitution there is a vacancy in the representation of South Australia in the Senate for the place for which Senator Xenophon 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.
My parents were born overseas, my father in Cyprus and my mother in Greece. I was born in Australia. I have always considered that I am only an Australian and only an Australian citizen and that my allegiance is only to Australia. Out of an abundance of caution prior to the 2007 election, I renounced any potential rights to citizenship of Greece and Cyprus, and I have confirmation that I am not, nor ever have been, a Greek or Cypriot citizen. However, it came to my attention last month that I may have some form of British citizenship. I approached the British Home Office, and they advised me that in their view I was a British overseas citizen.
Subsequent to that date I have made further inquiries, and, if I ever were a British citizen, I have out of an abundance of caution renounced it—and this renunciation has been confirmed. This matter must now be determined by the High Court of Australia sitting as the Court of Disputed Returns.
The government will be supporting this motion, and we are of the view that Senator Xenophon has done the right thing in proposing this reference. That being said, Senator Xenophon's case illustrates how silly this has become. As the Prime Minister said the other day, if Nick Xenophon is an Englishman, the Pope is a Methodist.
On the basis of the facts as we understand them, and as presently advised, the government are of the view that Senator Xenophon is not disqualified under section 44(i) of the Constitution, and we will be making a submission to that effect in the proceedings before the Court of Disputed Returns.
Question agreed to.
I seek leave to move a motion relating to a review of the qualifications of senators under section 44 of the Constitution.
Leave not granted.
Pursuant to contingent notice of motion I move:
That so much of standing—
Through you, Mr President: it's entirely a matter for Senator Hanson if she wishes to extend the courtesy. I understand that there are two senators who were seeking leave to make a short statement. I am wondering if the senator would postpone this debate to enable that to occur and then we can proceed. She is within her rights to move suspension of standing orders. But, if she were prepared to extend the courtesy, it would be appreciated.
Senator Hanson, you've heard Senator Wong's request—rather than point of order—and I'm happy to entertain that. Would you consider the two other matters being dealt with first? It would actually facilitate it all being kept in the same—
by leave—According to media reports, allegedly I could be in breach of section 44 of the Constitution because I hold an irrevocable social security number in the United States and am eligible for a pension in that country, having paid a social security tax for 10 years 50 years ago—a pension I do not claim. The claim is on the breach of a clause that says a person cannot be:
… entitled to the rights or privileges of a subject or a citizen of a foreign power; …
I am not so entitled. I cannot vote in the US or work in the US. I am not a citizen of the United States, nor have I ever held a green card. A superannuation-style pension, I believe, is neither a right nor a privilege in any country. Several constitutional lawyers agree with me and so does the Attorney-General.
After seeking legal advice, the government will not refer me to the High Court. I've been advised by Senator Wong that the opposition agrees with that decision. I think such a referral would be a waste of the High Court's precious time and, possibly, taxpayers' money. I thank Senator Brandis and Senator Wong for their involvement, and I think that that ends the matter. But I do still believe that this chamber should vote to have an independent auditor examine the validity of every member in this chamber and also in the other place. Thank you.
by leave—In rising to make this statement I note that the High Court sitting as the Court of Disputed Returns will shortly consider the eligibility of a number of parliamentarians, including those who have inherited citizenship by descent through their parents, in the 2016 election. Since the Senate last met, there have been media reports attempting to cast doubt about my citizenship status and, in turn, my eligibility to sit in this Senate. This is the first opportunity I've had to update the Senate on the matters raised since the publication six days ago of an immigration card signed by mother on entering Australia almost 50 years ago. I thank the Senate for giving me the opportunity to do so. I do so to assure the parliament and the people of the ACT of my eligibility to be elected and to serve as a senator in this parliament.
As I informed the Senate in my inaugural speech, I am the Canberra-born daughter of Betsy and Charles Gallagher, who were both born British citizens and who both later became Australian citizens. As part of the ALP's candidate vetting process, I provided information about my parents' and grandparents' places of birth. For my mother, this was in Guayaquil, Ecuador in 1943. As I said in the statement I issued last week, as a result of the investigations by the Labor Party, which included obtaining legal advice, it was determined my mother was not an Ecuadorian citizen and that I had not obtained Ecuadorian citizenship by descent from my mother.
My mother was born in 1943 to British citizens who were in Ecuador, where my grandfather was temporarily working on behalf of the Bank of London. My mother's birth was registered at the British consulate at Guayaquil. Her birth certificate, which was issued by the British consul, describes her birth as a birth within the British consulate at Guayaquil. To the best of my knowledge, my mother's birth was never registered with the Ecuadorian government. I'm unable to locate any record of an Ecuadorian birth certificate despite interrogating family records. It's my understanding that an Ecuadorian birth certificate was never obtained for my mother. Sadly, my mother passed away in 2005, aged 62 years, three years before the 2008 changes to the Ecuadorian constitution cited in the recent media reports. During her life, she never took any steps to attain citizenship of Ecuador. My mother was never an Ecuadorian citizen and, accordingly, I could not obtain Ecuadorian citizenship by descent through my mother.
I am not and have never been an Ecuadorian citizen. However, given recent questions about my citizenship in the media, further legal advice was sought to put to bed a question that was already beyond doubt. A formal opinion has been obtained from an expert on Ecuadorian law, Dr Gabriel Echeverria, together with a legal opinion from Dr Matthew Collins QC on my citizenship status and eligibility to sit as a senator under section 44(i) of the Constitution. Both of these opinions confirm the earlier legal advice received during candidate vetting and confirmed that my mother was not an Ecuadorian citizen, that I did not obtain Ecuadorian citizenship by descent through my mother and that I am not and have never been an Ecuadorian citizen.
Dr Echeverria is the European Union Democracy Observatory on Citizenship's Ecuador and Chile country expert and authored the observatory's Report on citizenship law: Ecuador. He is regarded as the international expert on Ecuadorian citizenship law. The expert opinion of Dr Echeverria concludes that I am not an Ecuadorian citizen nor am I entitled to apply to become an Ecuadorian citizen.
Dr Collins QC practises at the Melbourne bar and at the bar of England and Wales. Dr Collins QC has considered Dr Echeverria's expert report in relation to the circumstances of my mother's birth and has concluded there is no question of my eligibility to serve in this parliament under Australian law, that I am not disqualified under section 44 of the Australian Constitution and that I am constitutionally qualified to sit as a senator.
Since the Senate last met I've also been asked about renunciation of any entitlement to British citizenship. I can confirm that I had renounced any entitlement I may have had to British citizenship by descent from my father. In the mid-1990s I investigated the option of moving to the UK to work. I made inquiries at the time to the British High Commission about living and working in the UK for an extended period. I received the advice that, in order to become a British citizen, I would need to go through a formal application process and that, if I did apply, my application would probably be granted, although it was not automatic. About this time, my father became sick and subsequently died, and so I did not pursue this any further as I needed to remain in Australia with my mother. I never took any steps to become a British citizen and accordingly I was of the understanding that I was not a British citizen.
Prior to entering the Senate on a casual vacancy in March 2015, I was not advised that I needed to renounce any entitlement to foreign citizenship. However, during the pre-election candidate vetting in 2016, the ALP vetting team considered my individual situation and the fact that, since my father had died some 20 years earlier, it was going to be difficult to substantiate his particular circumstances. They advised that, out of an abundance of caution, I should fill out and return form RN, renunciation of British citizenship, to put beyond any doubt that I could obtain British citizenship by descent via my father. Despite my clear understanding that I was not a British citizen, I followed the advice of the ALP vetting team and submitted the paperwork to the UK Home Office together with the required payment on 20 April 2016. I was advised that submitting the declaration of renunciation to the Home Office meant that I had taken all reasonable steps to renounce any entitlement to British citizenship.
I am not a citizen of Ecuador; I am not a citizen of the United Kingdom; I am only an Australian citizen, and I am eligible to serve in this parliament as a senator for the ACT, and it's an honour and a privilege to do so. I thank the Senate.
Yes. Pursuant to contingent notice of motion, I move:
That so much of the standing orders be suspended as would prevent Senator Hanson moving a motion to provide for the consideration of a matter, namely a motion relating to a review of the qualifications of senators.
The motion that I wish to move on the floor of parliament is:
(1) the Senate notes that the continued uncertainty regarding the qualifications of a number of parliamentarians under section 44(i) of the Constitution is undermining public confidence in the parliament; and
(2) in the interests of restoring the public's confidence, the Senate is of the opinion that senators should work with the government to establish an independent review of the qualifications under section 44(i) of all senators by the end of the sitting week.
I can say—having spoken to the public as I move about the country, and also from calls that I get to my office—that the public have lost confidence in this parliament and the politicians. They've lost confidence in politicians around this country. We need to actually show that we are here doing the right thing by the people. If we are going to not address this issue, I have seen both sides of this parliament close ranks when it comes to proving the eligibility of holding their places in this parliament. If we pass laws in this parliament expecting the people to follow those laws and the rule of law then we must show by example in this chamber and the other place that people are eligible under section 44 of the Australian Constitution.
It has been basically a weekly process here that someone else is questioned over their eligibility. This needs to be put to rest. It is not up to the average person to come up with the documentation; it is up to the chamber, and up to each and every senator here, to prove that they have the right to be here and that they pass section 44(i) of the Australian Constitution.
Senator Brandis has said it is up to the person that is making the allegations to prove them. Well, I ask the chamber: how does anyone get that information? Where are they supposed to get it? They don't. They can't. And therefore, in all honesty, it is up to the chamber now, it is up to the government and it's up to the opposition leader to make a review of all senators in this chamber to prove their eligibility. Then, in further elections, anyone newly elected to this chamber must prove their paperwork that they have.
Questions have come up in this chamber or outside about the eligibility of Bill Shorten, the opposition leader in the other place. He's been questioned. His name has been raised. Also, Senator Wong's name has been raised. Also Senator Dastyari's name has been raised. So there are a few senators here whose names have been raised. Also, there are quite a number from the Labor Party in the lower house. These names have been raised. Why are you closing ranks? Is it because you're frightened of going back to a by-election in which you may lose your seats? Give the public back the confidence and show them that you are prepared to abide by the laws and rules of this country. We have a Constitution. This is the highest law of the land. We are governed by the Constitution, yet you are not prepared to abide by the Constitution and prove to the people of this country your worth and that you will stand by the rules and the laws that we should be abiding by. I think it's disgusting the way you've closed ranks. You did it in 1999 and you're doing it again now. The people have lost confidence in you. They have no faith or trust in the politicians of this country, and no wonder. It's about time you actually got some backbone, showed some leadership and showed the people that you are willing to stand up and be counted.
The government will not be supporting this motion. As I have pointed out in the past, the Senate relies upon senators to behave with integrity, and I believe that members of this Senate have behaved with integrity. Several senators have now stood up and, under no pressure at all but the dictates of their own conscience, have declared that they had a concern that they may be ineligible under section 44 and have referred themselves to the Court of Disputed Returns. We saw that as recently as a few minutes ago in the case of Senator Nash and Senator Xenophon. So we will not be supporting this motion.
I wanted to avoid doing this but because in the brief debate about Senator Nash some remarks were made, in particular by Senator Di Natale, about the timeliness of Senator Nash's referral let me put on the record what happened. On the evening of Monday, 14 August, the government was made aware for the first time of advice from the British Home Office that, on the basis of the limited facts then available, it appeared that Senator Nash may be a British citizen by descent. She advised the Prime Minister early on that Monday evening and the Prime Minister advised me.
I then called the Solicitor-General to let him know that we would be seeking his urgent advice in relation to a possible section 44 matter. I made that call at 7.16 pm on Monday evening, as soon as I left the Prime Minister's office. The Solicitor-General told me that he would be in the High Court for most of the week and wouldn't be able to deal with the matter until he had finished his matter before the High Court. At 1.30 pm on Tuesday, 15 August, my office received an email from counsel assisting the Solicitor-General saying that the Solicitor-General would like to have expert advice from a United Kingdom citizenship lawyer in order to prepare his opinion.
During the course of Tuesday and Wednesday, further information was sought from Senator Nash to identify or establish relevant aspects of her family history. Because both Senator Nash's parents are deceased, it took some time to establish the relevant facts. Meanwhile, my office sought to identify a suitable UK based citizenship law expert, and by Wednesday, 16 August, we had identified a suitable English QC who is an expert on UK citizenship law and was available to provide advice to the government urgently. On Wednesday evening at 7.16 pm, one of my staff emailed John Reid, who is the head of the Office of International Law within the Attorney-General's Department, with instructions to the British lawyer, Mr Fransman QC, requesting urgent advice on the basis of the facts that had been established during the course of that day and the previous day. Mr Fransman agreed to deal with the matter urgently and, on Thursday at 5.40 am, his written advice was sent to my office.
I spoke to the Solicitor-General on Thursday morning. He was still in the High Court but he said he expected to be finished with his matter by Thursday afternoon. I told him that I'd send him Mr Fransman's advice and I said to him words to the effect of 'as soon as you have finished in the High Court, could you please give the government an urgent opinion on the Nash matter'. The advice from Dr Donaghue, the Solicitor-General, was received in my office at approximately 5 pm on Thursday, 17 August. I was in meetings at the time. The Prime Minister dropped into my office at 6.15 pm on Thursday evening to discuss the matter and, at that time or thereabouts, both the Prime Minister and I read Dr Donaghue's advice. The Prime Minister immediately convened a meeting of the governance committee of the cabinet, comprising himself, Ms Bishop and me. The Deputy Prime Minister was unavailable. The governance committee resolved that the matter would be referred to the Court of Disputed Returns under section 376 of the Commonwealth Electoral Act.
The Prime Minister asked Senator Nash to come and see him. She arrived a few minutes later and was acquainted with the advice. A decision was made that it was desirable that the matter of Senator Nash's citizenship should be made public as soon as possible. We decided between roughly 6.30 and 6.50 pm on Thursday evening that Senator Nash should go into the chamber immediately to tell the parliament and the public what the position was. She did so at 7.05 pm—in other words, approximately 50 minutes after the Prime Minister and I first saw the Solicitor-General's advice.
Labor does not support the proposal before the Senate. This is just another desperate stunt from One Nation. They just want a focus on them continually—a focus on One Nation. I don't know why they really would want that focus because of the lack of policies and the lack of support they have for ordinary working Australians.
The Labor Party goes through an extremely extensive analysis of any senator and any member's right to stand for parliament and take their position in the Senate or the House of Representatives.
Even I got through, yes. Senator Hanson is raising this because of the incompetence of One Nation in actually taking proper steps to ensure that Senator Malcolm Roberts is eligible to sit in this parliament. I've watched Senator Roberts dissemble before the press on many occasions, trying to justify who he is or what he is. I think all that's happened is that people are even more confused about Senator Malcolm Roberts's position: whether he is an Australian, whether he's Indian, whether he's from the UK, or whether he's got no background at all—whether he's the invisible man. This is an absolute stunt from One Nation.
Mr Shorten, the Leader of the Opposition, Senator Wong and Senator Dastyari all went through extensive and professional analysis of their capacity to sit in parliament. But because One Nation were not professional enough and didn't have the common sense to make sure that someone who was standing for parliament was actually eligible to sit in parliament, they want to reverse the onus of proof on every other senator and MP in this place. It is another stunt and another desperate position from you, Senator Hanson.
Senator Hanson, you've seen what we go through. I went through the process myself. I went through what seems to be a completely different process from Senator Malcolm Roberts. What he has put on the public record bears no resemblance to what I had to do to renounce my British citizenship—absolutely no resemblance. If you want to take bets on what the High Court will do, I wouldn't be putting any bets on Senator Malcolm Roberts coming out squeaky clean in relation to his citizenship; I certainly would not. This is not about closing ranks, Senator Hanson. This is about a professional political party, the Labor Party, actually doing what's required to be done before people stand for the Senate or the House of Representatives. We actually went through a proper, professional process.
Senator Hanson, there would be no by-elections for senators. I thought you would at least understand that basic proposition, given that you have Senator Malcolm Roberts in such problems. Whether it's going to be your sister, another one of your relatives or one of your hangers-on that comes in here to replace you or to replace Senator Malcolm Roberts, who knows? Who knows what that position will be? But it's quite clear that this lot are so unprofessional, so incompetent, that they can't even put their own people through a proper process to make sure they're eligible to sit in this parliament.
There are no closed ranks in this from the Labor Party, just a professional approach to ensuring that people are entitled to be in this place. There's no loss of confidence in the Labor Party; the Labor Party is a strong opposition—an opposition that could end up sitting across the chamber after the next election and actually delivering decent policies for this place. Because you have been unprofessional and you have been incompetent, don't come here and try and put everyone else in the same boat as you. You are incompetent, unprofessional and an absolute racist when it comes to other people in this country. (Time expired)