SUBJECT/S: Senator Bob Day’s resignation
THE HON MARK DREYFUS QC MP
SHADOW MINISTER FOR NATIONAL SECURITY
ACTING SHADOW MINISTER FOR JUSTICE
MEMBER FOR ISAACS
TUESDAY, 1 NOVEMBER 2016
SUBJECT/S: Senator Bob Day’s resignation
EMMA ALBERICI: And for more the Shadow Attorney General joins me now from Melbourne. Mark Dreyfus welcome back to Lateline. In what circumstances would Bob Day’s election now, is it a fait accompli that it will go to the High Court?
SHADOW ATTORNEY-GENERAL MARK DREYFUS: The Government has announced that there will be a reference from the Senate to the High Court and in principle Labor will support that, subject to looking at the terms of the motions. So the High Court is going to be looking at this question very soon.
ALBERICI: And what’s your understanding of whether or not Bob Day is likely to be deemed an invalid Senator?
DREYFUS: Well we don’t know very much because the government has only put out a very, very short statement and right now is the time that the Government needs to be actually explaining everything it knows, and particularly when it first knew of the facts that give rise to this ineligibility of Bob Day to even stand for election. It’s apparently something to do with his electoral office and it’s section 44(5) of the Constitution is what is in question here which is a direct or indirect pecuniary interest in a contract with the Commonwealth. It’s not a section which has been looked at often, and the more we can learn the more we will be able to determine where this is going to go, but we need to know when the Government first knew about this, what sort of dealings have they been having with Bob Day. If they knew weeks or months ago and have sat on this, that is obviously a matter of great concern and it’s more chaos from this Government.
ALBERICI: Why is the timing significant?
DREYFUS: If the Government knew, then why were they not bringing forward the matter that they have now broad forward which, is a reference from the Senate to the High Court of Australia, to the Court of Dispute and Returns, to determine his eligibility, and the only conclusion one can draw is that the Government wanted Bob Days’ vote, they wanted him to stay in the Senate and now that he has resigned they’ve felt obliged to bring this forward immediately, but apparently they were quite happy to sit on this information while it appeared that Senator Day could, Bob Day, now Mr Day, was going to sit on in the Senate.
ALBERICI: Well the ABC understands that the Government was only given this legal advice on Thursday and took some time to digest it and pass it onto Bob Day. So it doesn’t seem like they have dragged their heels?
DREYFUS: When did they first know of the facts Emma? That’s the question. When did they first know that this electoral office which Senator Day has been in for a long time was a building in which, as is apparently alleged, he had a direct or indirect pecuniary interest and that’s the question. If it’s months and months ago why didn’t they investigate it before now? Is this the matter that the now resigned Solicitor-General Justin Gleeson disclosed that he had advised on, namely a question to do with the composition of the Senate, which we learnt last month in a Senate committee enquiry hearing, and again the Government has got to say to the Australian people what it knew and when it knew about these matters and if it knew sometime back why didn’t it bring it forward then.
ALBERICI: Do you have any reason to believe this matter is connected to the resignation of Justin Gleeson?
DREYFUS: Again I don’t know and regrettably the Government is now in the position again on relying on the flawed judgement of George Brandis. What a mess he has created. It’s not now possible to get advice on this matter from one of the most eminent legal minds in Australia, Justin Gleeson, because he has resigned. It won’t be possible for the government to be represented in the High Court by one of the most eminent legal minds in Australia because he has resigned, and this was brought about by George Brandis’ actions but more importantly the government should not think that simply putting out a three line statement, which is what George Brandis has done today, means that starting tomorrow the Government can’t explain fully what Senator Scott Ryan knew as Special Minister of State, what George Brandis knew as Attorney-General, when they knew it, whose advice have they obtained, because I am assuming it’s not the advice of the Solicitor General, and when did they obtain it. They’re saying Thursday, but that’s not what the statement says and more importantly you need to know some facts because you go off to seek legal advice. So the Government must have known.
ALBERICI: Sorry, which statement are you referring to which seems to contradict in your mind what the Government has said?
DREYFUS: No I don’t think it contradicts, I am saying it’s not saying anything. It’s a three line statement from Senator Brandis today, saying that there is going to be this reference from the Senate, moved in the Senate next week, when the Senate sits on 7 November, to get this matter into the High Court, and that’s all it says, other than identifying which section of the Constitution is in issue, section 44(5).
ALBERICI: Briefly, Mark Dreyfus, how do you expect a replacement will be decided for Senator Day’s position?
DREYFUS: I think it’s a very difficult question. I have only started to think about it this afternoon. There’s clearly two options, well three because Senator Day will be desperately trying to hang on, Bob Day will be trying to hang onto the idea that Family First can nominate his replacement, but if he is ruled by the High Court to have been ineligible to stand at all times then we get to a recount and this is the first time, as Antony Green said earlier, this is the first time the High Court is looking at a situation with the ticket voting in the current configuration. So the High Court is going to have to determine whether or not the ticket, the Family First ticket stands in which case the preferences would flow through to that second candidate, or alternatively whether there is a complete distribution across the ticket, which would apparently produce a situation where someone else could be elected, which might be a One Nation Senator, it might be a Labor Senator.
ALBERICI: Mark Dreyfus, thank you very much.
DREYFUS: Thanks for having me.