Tuesday, 5 September 2017
Questions without Notice: Take Note of Answers
Deputy Leader of the Nationals
That the Senate take note of the answers given by the Minister for Regional Development (Senator Nash) to questions without notice asked by Opposition senators today relating to her status as a senator and as a minister.
I started question time yesterday asking Senator Nash a question in relation to whether or not she has the right to still sit in cabinet and make decisions when there are questions over her citizenship. Yesterday she tried to lecture us in relation to respect for Australians. Today I ask the minister: when is she going to show respect to the Australian people? We know what the political objective is and why she is still in cabinet. That is clearly to protect Mr Barnaby Joyce, in the other place, and also to protect the Prime Minister and his government because they have such a slim majority in the House of Representatives. What it also clearly established is that we have a Prime Minister who is too weak. He is not a strong leader, as he tries to tell us. He is very weak because he won't deal with this issue.
Senator Nash was asked a series of questions by senators Bilyk, Collins, Pratt, Kitching and O'Neill. She was not able to—or wouldn't, actually—answer any of those questions. One of the questions which is fundamentally important to the Australian people is: from whom did she seek her advice that she is relying on to be able to sit in cabinet and make decisions? When was she given that advice? We haven't asked for her to table that advice, but we have a right to know. When did she seek that advice, and who was that advice sought from? We have advice from some of the best legal minds in this country that says there is a clear doubt as to whether or not Senator Nash is eligible to sit in cabinet. We have clear advice that Mr Barnaby Joyce is ineligible to sit in the other place. When Senator Nash was trying to deflect these questions, she referred to the important work that she has done for regional Australia. But what she didn't say, and what she refused to answer, was anything about the $1.7 billion budget she oversees as a cabinet minister. Of those grants that she is able to make throughout Australia, how many will be challenged if she is found to be ineligible to sit in the chamber?
These are serious questions, and the Australian people deserve answers. It is not just about who she's giving those grants to; it is about whether those who have applied for these grants and are rejected then challenge her right to make decisions if she's deemed to be ineligible to sit in this place?
There is a huge grey cloud—in fact, it's a black cloud—hanging over this government. They are seen for what they are. The government are governed by a Prime Minister who is weak and indecisive. We have a government that is led by someone who does not even have control of his own caucus. He promised at the last election that he would have an innovative, agile, adult government. When, Mr Prime Minister, are you going to bring that government to town? Quite clearly, the way these issues with Senator Nash and Mr Barnaby Joyce have been dealt with has not given any confidence to the Australian people. Others in this place who have questions hanging over their citizenship and their eligibility under the Constitution have stepped aside from the cabinet. Senator Canavan has stepped aside, because he knew that morally it was the right thing to do. The cloud is clearly over Senator Nash. She's not a very effective minister anyway, and you'd have to be pretty desperate to be propped up, as she was this afternoon, by the likes of Senator O'Sullivan—somebody who has a very dark cloud over him as to whether he's entitled to be here, because his family companies have gained financially from the Commonwealth government, which make him ineligible to sit in this place. We have a minister who is still sitting in the cabinet and who should go to the backbench but is failing to do so, and we have a Prime Minister who is so weak and so beholden to others that he won't deal with this issue. (Time expired)
After listening to these questions to Minister Nash over the last two days, I'm not only embarrassed as a senator but also ashamed as a woman to see a conga line of women over the other side, as if somehow the fact that only women are asking Minister Nash these questions makes what they've done okay. It is not okay. For two days in Senate question time, when we should have been talking about energy prices, national security, North Korea and jobs in regional Australia, they have persisted with these disgraceful questions. I have never been as proud of any of my Senate colleagues as I have been of Senator Nash in the last two days in the way she answered these questions from the female senators over the other side of this chamber. She was graceful, she was calm and she was very clear in her answers to the same questions over and over again. She could not have been any clearer. I heard what she said in this place on 17 August, and I've read what the Attorney-General said on 18 August. To keep coming in here asking her these same questions is nothing short of disgraceful, particularly when you know she is entitled to be the minister, to make the decisions and to get on with the job for regional Australia in the way that she is.
Those opposite keep asking the same questions over and over again. If they missed Senator Nash's comments in the chamber on 17 August and haven't bothered to go back and read the transcript of what she said or the very detailed explanation the Attorney-General gave to a committee the following day, I will now answer the questions, as Senator Nash has over and over again, and provide the detail that those opposite have been seeking. They have asked about the time line and about the evidence. Senator Brandis said:
… on Monday evening, the government was made aware 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 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 …
Then it goes on to more things that happened on the Monday. On Tuesday, the Attorney-General said his office:
… received an email from counsel assisting the Solicitor-General saying that the Solicitor-General would like expert advice from a United Kingdom citizenship lawyer in order to prepare his opinion. During the course of Tuesday and Wednesday—
when that further advice was sought from a United Kingdom citizenship lawyer—
further information was sought from Senator Nash to identify or establish relevant aspects of her family history.
… by Wednesday we had identified a suitable English QC who was an expert in UK citizenship law and who was available to advise the government urgently. On Wednesday evening, again 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 UK barrister
It goes through exactly who said what and did what, what advice was sought and what advice was received. The advice from Dr Donaghue, the Solicitor-General, was received at the Attorney-General's office at 'approximately 5 pm last night', which was the Thursday night. Senator Brandis said: 'The Prime Minister dropped into my office at 6.15 pm on the Thursday to discuss the matter' and they immediately called the governance committee of cabinet to review the matter, straightaway, on Thursday night. It continues:
The governance committee resolved that the matter should 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.
That is, around 7 pm.
We decided, between 6.30 and 6.50, roughly, that Senator Nash should go into the Senate immediately to tell the parliament and the public what the position was.
And what the legal advice had been.
A brief statement was drafted for her, and she went into the Senate, as you know, and made the statement to the Senate at about 7.05 pm. The statement to the Senate was made approximately 50 minutes after the Prime Minister and I first saw the Solicitor-General's legal advice.
It could not be any clearer that Senator Nash—Minister Nash—has done the right thing. She is entitled to be a minister here, and for you to do what you've done is utterly disgraceful. You should be ashamed. (Time expired)
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)
I rise here today and ask the question: why don't those opposite care about regional Australia? They asked question after question today of the minister responsible for regional Australia, but did they ask her about issues that impacted on regional Australia? No, they did not. They focused on issues purely to score political points. I ask: why do they not care about Australians? They had an hour of question time to ask any minister a question about matters of importance to Australians. They could have asked questions about the economy. They could have asked questions about energy prices, which are going up drastically right across the country, largely as a result of policies put in place by the former federal government and also by state Labor governments right across the country. They could have asked questions about security, about issues very pertinent to what's going on in the world, such as the security threats that are impacting on people right across the world—Australians who are overseas and also Australians at home. There are real risks. But did they take the opportunity during that hour to ask questions about security? No.
On a related topic, did they ask questions about defence? The world currently faces one of the most serious threats to international peace since the Cuban missile crisis in the early sixties, but did they ask questions about what was going on in the Korean Peninsula? No. They chose to ask purely political questions of Minister Nash. Did they ask questions about jobs in regional Australia, or about things that matter to Australians: jobs and the ability to put food on their table, put a roof over their heads and warm their families? No. They chose to ask purely political questions. They asked questions about things that, to use a legal term, are a mere spes. Unless and until the High Court decides that the senators and members of the House are ineligible to sit in their respective places—and the circumstances of each are different—this is just pure speculation.
It's important to also note that the government has strong advice that suggests, particularly in the case of Senator Nash but also others, that they have a strong case and that it is likely the High Court will find otherwise than that they are ineligible. This issue, until such questions have been decided by the High Court, is a moot one. There's no point standing up and arguing the issue in this place because, until and unless the High Court decides something that has an impact of the sort they are talking about, there is no way that the questions can be answered. The opposition and the others can speculate all they like but, until such time, this is mere speculation.
The opposition, during question time and whilst taking note, have referred to the questions that they would like answered. All those questions can and will be answered when the High Court makes its decisions. Senator McAllister says that she wants answers to those questions but, as I say, these questions are merely being asked to stir the pot. They are pure politics. They are being used to beat up Minister Nash, who is undoubtedly one of the most capable and competent ministers in her area that this country has seen for at least 10 years, and, by extension, to beat up the government. Neither Senator McAllister nor Senator Polley talked about anything of relevance to Australians or about what Australians would like to hear their members talk about—matters that matter to them. Rather, the question time performance and the performance by Senator McAllister and Senator Polley was a disgraceful attack on a highly competent, capable female senator. They clearly haven't looked at the facts as presented by Senator Nash and also Senator Brandis.
It's a shame that, at a time when the opposition could be asking questions about these matters, they persist with this type of petty politicking. The matter has been referred to the High Court, and that was the appropriate thing to do. Senator Nash has been, from day one, completely open and transparent about her citizenship status, including requesting that she be referred to the High Court. It's a shame that those opposite refuse to adhere to the same level of honesty and transparency across the board of their caucus. As was outlined in Senator Nash's statement to the Senate on 17 August, she advised the Senate of her status upon receiving advice from the Solicitor-General. She wanted to put those facts on the record as quickly as possible, which she did.
What we see is an extraordinary response from those opposite. They care so little about regional Australia that they're happy to have an illegitimate minister overseeing decisions that are going to have an impact on that community. It's incumbent on those of us on this side to raise those questions because we care so much about regional Australia. We want to see the so-called money that they are going to spend on regional jobs packages which they promised more than a year ago and still haven't spent. But if they finally do spend it over the next couple of months then it will be called into question. So, absolutely, it is the right thing for us to question Minister Nash, because there is a cloud hanging over her decision-making.
The other thing that's remarkable from Senator Reynolds's contribution is the timeline. They're not the luckiest government I've ever seen, but how lucky was that timeline! They find out on the Monday that they had an issue, and then it just happened that they concluded, through their legal advice, that it was a legitimate problem five minutes before the Senate shut down on the Thursday. It was very fortuitous, indeed, that they were able to quickly scramble in here and make an announcement! Of course, the honourable thing to do as soon as they knew on the Monday would have been to announce they had a problem, say they were seeking advice and stand down Senator Nash. The one thing that Senator Nash couldn't answer—Senator Reynolds didn't touch it and Senator Bushby didn't touch it—is: what is the difference between why Senator Canavan has stood down but Senator Nash hasn't? Not one of them went near it, and that is the key question that they have not answered. Senator Canavan did the right thing where we see Senator Nash refusing to do so.
I'm almost starting to feel a little bit sorry for Senator Nash—just a little bit—because it is pretty clear that she knows she is doing the wrong thing, but she knows she has to provide the protection racket for the Deputy Prime Minister in the other place. What a farce we're going to have in a couple of days when he is the Acting Prime Minister. What an absolute farce! They try and talk about all the important issues facing the country. Well, this guy is going to be the Acting Prime Minister, with that cloud hanging over him, later this week. What could be more important than that? It is absolutely important that we highlight it.
For the last two days, we have asked questions of Senator Nash about her role, and we've had to do that because, as I said, she came in here five minutes before the Senate shut down to make her announcement about her dual citizenship. She has not faced the media since then. The only time we've had an opportunity to ask her questions started yesterday and continued today, and haven't the answers been unsatisfactory? I'll go to those now. What is the difference between Senator Canavan and Senator Nash? They have not given a coherent response on that. Why is the minister refusing to meet the standard set by her colleague Senator Canavan? There are questions about the ability of the minister to make decisions that are going to hold and cannot be challenged.
We've heard the expert advice from Professor Williams with regard to that, which Senator McAllister touched on, but it seems that this minister is determined to hang on despite this cloud hanging over her head. We also know that this is about providing a protection racket for the Deputy Prime Minister, Barnaby Joyce. You get the impression that Senator Nash understands how important and serious this issue is, but you can't help but conclude that that is their motivation. Senator Canavan stood down many weeks ago now, but this was too close to the issues surrounding Barnaby Joyce, the Deputy Prime Minister, so Senator Nash was unable to do so.
What does it go to at the heart of this government? Yes, there's dysfunction and chaos, and you see that no matter where you go. I know that, in my travels through Mackay and Bundaberg over the last two weeks, I have received the response a lot that people are in open ridicule of this government. The government know that there is chaos and dysfunction at the heart of what they are doing and the decisions they are making, but the consequences for Australian families are real. We know about the jobs packages from Senator Nash. Are they actually going to make decisions that are going to have a benefit for local people in terms of gaining employment? We now have the illegitimate Deputy Prime Minister in charge of the Northern Australia Infrastructure Fund. They haven't made a decision so far. Are they going to be bold enough to do it with a cloud hanging over his head? We also know that they have gone nowhere on energy policies. So, yes, there is chaos and dysfunction, but the cloud and the questions that are hanging over this government actually have serious consequences for the Australian people. It's a sad and tawdry situation that the government have found themselves in and, again, it's the Australian people who are losing out.
Question agreed to.