Extract from The Guardian
The two crossbench senators’ constitutional imbroglios will reinforce voters’ lack of confidence in politicians and the Coalition must give full and frank details about both
We always suspected this particular Senate was going to be a wild ride. Sadly we didn’t know the half of it.
On Tuesday Family First senator Bob Day careered in the direction of the high court. Now he’s been joined by One Nation senator Rod Culleton.
It’s worth taking the time to understand the particulars of the Day saga, so let’s start there.
Day, a construction multimillionaire as well as a crossbench senator, owned a building in Adelaide. He wanted to use the building in Kent Town as his Senate office.
In 2014 Day sold the Kent Town building to a business associate, by his own account to “avoid any conflict of interest”. By that Day presumably meant falling foul of section 44 of the constitution which forbids parliamentarians from having “any direct or indirect pecuniary interest in any agreement with the public service of the commonwealth”.
But although the building was sold, Day apparently retained liability for the mortgage, so the transfer was not a clean break. More of that shortly.
Here’s the first thing we can say.
It is clear there have been concerns in the government about the Kent Town electorate office leasing arrangements since the get-go, from the time Day first entered parliament in July 2014.
How do we know this?
We know because the newly elected Abbott government allowed the Family First senator to remain in situ only if various conditions were met, including ending his personal connection to the building.
The other conditions imposed on Day at the time were: he had to pay for the refit of the new office, and the government would pay no rent until the Labor man Don Farrell (who lost his seat in that election) vacated his electorate office in the Adelaide CBD.
Fairfax further revealed on Wednesday that bureaucrats in the finance department recommended clearly against Day situating himself in Kent Town, but the then special minister of state, Michael Ronaldson, ultimately ticked the arrangement.
Politicians are certainly not obliged to follow the advice of their bureaucrats, although in this instance it would have been prudent to do so. This isn’t a hindsight judgment – the potential pitfalls were pretty clear at the time.
The why of Ronaldson’s conditional approval of Day’s preferred office arrangements is reasonably obvious if we consider the contemporary political context.
The new Abbott government, looking at a fractious Senate (everyone remembers the band of crossbenchers Tony Abbott dubbed “feral”, right?) would have doubtless been at pains not to irritate any reliable supporters in the red place, and Day was certainly that.
Now we need to roll forward to 1 December 2015. By then, a new special minister of state had taken possession of Day’s office arrangements – Mal Brough – and a lease was signed covering the Adelaide office.
As Day puts it in a statement he released on Wednesday: “The government is in possession of a legal opinion which says from the day the department of finance signed a lease with Fullarton Investments Pty Ltd – the owner of the building in which I had my Senate office, a company I am neither a director nor shareholder of –was the day I became ineligible to be a senator.
“That day was 1 December 2015.”
Government people familiar with the case say Day provided a guarantee on the mortgage for the building through his company B&B Day Pty Ltd, so there was a financial exposure, which arguably triggers the constitutional issue. As Day characterises it: “Because Fullarton Investments owes me money, the department’s legal opinion says I have an indirect interest in the lease.”
Despite the lease being signed with the commonwealth last December, no rent was paid on the building.
After months passed, Day went looking for the payments. On 4 August, he approached Scott Ryan, who is the current special minister of state. This contact happened a month after the election, and immediately after Day was returned to the Senate after the marathon count.
Day’s inquiry to Ryan about the rent (which apparently included an assurance to the minister that there was no constitutional problem, just in case anyone was wondering) then triggered a process where Ryan sought advice about precisely what was going on with the building in Adelaide, and whether there was any constitutional problem with the arrangement.
The next relevant date is 7 October.
On that day, Ryan told the Family First senator he intended to terminate the lease on the building and seek external legal advice about whether Day had an indirect interest in the lease, which could fall foul of section 44.
The legal advice came back to the government last Thursday, and it was conveyed to the Senate president, Stephen Parry, on Friday.
While the correspondence and the legal advice was flying around behind the scenes about whether the Family First senator was validly elected, Day was also facing significant problems with his construction empire. The building business was put into liquidation on 17 October.
Bizarrely, rather than just accepting the sum of the parts and moving on from politics to deal with the practical consequences of his various compounding imbroglios, Day remained in public view, prevaricating about whether to stay or whether to go.
The reason cited for Day’s prevarication was he wanted to be present for critical votes coming up in the parliament. Maybe that was the reason, maybe it wasn’t. Whatever it was about, it has complicated the political appearances for the government.
While the available evidence suggests Ryan has made a priority of getting clarity on Day’s arrangements post election, and working through the sequence required to clean up the mess, Labor, naturally, has pounced, and reasonably so.
It is more than reasonable to ask who knew what when, and why it took such a long period of time to follow the trails of smoke diligently back to the fire.
The Day problem was hidden in plain sight.
It’s obvious the Coalition has relied heavily on Day’s vote, both in this parliament and the last one. That’s a matter of record. So it is reasonable to ask why the government continued to rely on Day’s parliamentary vote when the government was, in fact, fully aware there were serious legal questions about whether he was eligible to sit in the Senate.
And then there is Culleton. The One Nation senator has faced persistent questions about his eligibility since he arrived in Canberra.
The solicitor-general, Justin Gleeson, said two weeks ago (in the middle of the high-octane slugfest between himself and the attorney general, George Brandis) that he had provided advice on an urgent legal matter about the composition of the Senate, which Brandis confirmed on Wednesday was about Culleton.
Brandis said he received Gleeson’s opinion late on Friday, 28 October, and forwarded it to Culleton.
This problem relates to proceedings in the high court against Culleton by Bruce Bell. Bell is alleging Culleton was incapable of being chosen as a senator because at the time of the last election he had been convicted convicted of an offence punishable by a sentence of imprisonment for one year or longer.
So now, Senate willing, Culleton will be joining Day in the high court. Far from the Senate being a sleepy hollow, it is all happening.
Regardless of how the current case studies end, it’s clear the government needs to look at new measures to ensure that would-be politicians are forced to comply with their constitutional requirements, as Australian Electoral Commission veteran Michael Maley has already suggested to a current parliamentary inquiry.
That’s just a basic integrity measure.
To give voters some confidence, it is also incumbent on the government to come clean about everything it has known about either matter.
And that means everything.
Anything less than full disclosure, and concrete steps to ensure greater integrity in the process in the future, will be marked down as a failure by the Turnbull government – and this is a government which is already chalking up too many failures in the minds of the voting public.
On Tuesday Family First senator Bob Day careered in the direction of the high court. Now he’s been joined by One Nation senator Rod Culleton.
It’s worth taking the time to understand the particulars of the Day saga, so let’s start there.
Day, a construction multimillionaire as well as a crossbench senator, owned a building in Adelaide. He wanted to use the building in Kent Town as his Senate office.
In 2014 Day sold the Kent Town building to a business associate, by his own account to “avoid any conflict of interest”. By that Day presumably meant falling foul of section 44 of the constitution which forbids parliamentarians from having “any direct or indirect pecuniary interest in any agreement with the public service of the commonwealth”.
But although the building was sold, Day apparently retained liability for the mortgage, so the transfer was not a clean break. More of that shortly.
Here’s the first thing we can say.
It is clear there have been concerns in the government about the Kent Town electorate office leasing arrangements since the get-go, from the time Day first entered parliament in July 2014.
How do we know this?
We know because the newly elected Abbott government allowed the Family First senator to remain in situ only if various conditions were met, including ending his personal connection to the building.
The other conditions imposed on Day at the time were: he had to pay for the refit of the new office, and the government would pay no rent until the Labor man Don Farrell (who lost his seat in that election) vacated his electorate office in the Adelaide CBD.
Fairfax further revealed on Wednesday that bureaucrats in the finance department recommended clearly against Day situating himself in Kent Town, but the then special minister of state, Michael Ronaldson, ultimately ticked the arrangement.
Politicians are certainly not obliged to follow the advice of their bureaucrats, although in this instance it would have been prudent to do so. This isn’t a hindsight judgment – the potential pitfalls were pretty clear at the time.
The why of Ronaldson’s conditional approval of Day’s preferred office arrangements is reasonably obvious if we consider the contemporary political context.
The new Abbott government, looking at a fractious Senate (everyone remembers the band of crossbenchers Tony Abbott dubbed “feral”, right?) would have doubtless been at pains not to irritate any reliable supporters in the red place, and Day was certainly that.
Now we need to roll forward to 1 December 2015. By then, a new special minister of state had taken possession of Day’s office arrangements – Mal Brough – and a lease was signed covering the Adelaide office.
As Day puts it in a statement he released on Wednesday: “The government is in possession of a legal opinion which says from the day the department of finance signed a lease with Fullarton Investments Pty Ltd – the owner of the building in which I had my Senate office, a company I am neither a director nor shareholder of –was the day I became ineligible to be a senator.
“That day was 1 December 2015.”
Government people familiar with the case say Day provided a guarantee on the mortgage for the building through his company B&B Day Pty Ltd, so there was a financial exposure, which arguably triggers the constitutional issue. As Day characterises it: “Because Fullarton Investments owes me money, the department’s legal opinion says I have an indirect interest in the lease.”
Despite the lease being signed with the commonwealth last December, no rent was paid on the building.
After months passed, Day went looking for the payments. On 4 August, he approached Scott Ryan, who is the current special minister of state. This contact happened a month after the election, and immediately after Day was returned to the Senate after the marathon count.
Day’s inquiry to Ryan about the rent (which apparently included an assurance to the minister that there was no constitutional problem, just in case anyone was wondering) then triggered a process where Ryan sought advice about precisely what was going on with the building in Adelaide, and whether there was any constitutional problem with the arrangement.
The next relevant date is 7 October.
On that day, Ryan told the Family First senator he intended to terminate the lease on the building and seek external legal advice about whether Day had an indirect interest in the lease, which could fall foul of section 44.
The legal advice came back to the government last Thursday, and it was conveyed to the Senate president, Stephen Parry, on Friday.
While the correspondence and the legal advice was flying around behind the scenes about whether the Family First senator was validly elected, Day was also facing significant problems with his construction empire. The building business was put into liquidation on 17 October.
Bizarrely, rather than just accepting the sum of the parts and moving on from politics to deal with the practical consequences of his various compounding imbroglios, Day remained in public view, prevaricating about whether to stay or whether to go.
The reason cited for Day’s prevarication was he wanted to be present for critical votes coming up in the parliament. Maybe that was the reason, maybe it wasn’t. Whatever it was about, it has complicated the political appearances for the government.
While the available evidence suggests Ryan has made a priority of getting clarity on Day’s arrangements post election, and working through the sequence required to clean up the mess, Labor, naturally, has pounced, and reasonably so.
It is more than reasonable to ask who knew what when, and why it took such a long period of time to follow the trails of smoke diligently back to the fire.
The Day problem was hidden in plain sight.
It’s obvious the Coalition has relied heavily on Day’s vote, both in this parliament and the last one. That’s a matter of record. So it is reasonable to ask why the government continued to rely on Day’s parliamentary vote when the government was, in fact, fully aware there were serious legal questions about whether he was eligible to sit in the Senate.
And then there is Culleton. The One Nation senator has faced persistent questions about his eligibility since he arrived in Canberra.
The solicitor-general, Justin Gleeson, said two weeks ago (in the middle of the high-octane slugfest between himself and the attorney general, George Brandis) that he had provided advice on an urgent legal matter about the composition of the Senate, which Brandis confirmed on Wednesday was about Culleton.
Brandis said he received Gleeson’s opinion late on Friday, 28 October, and forwarded it to Culleton.
This problem relates to proceedings in the high court against Culleton by Bruce Bell. Bell is alleging Culleton was incapable of being chosen as a senator because at the time of the last election he had been convicted convicted of an offence punishable by a sentence of imprisonment for one year or longer.
So now, Senate willing, Culleton will be joining Day in the high court. Far from the Senate being a sleepy hollow, it is all happening.
Regardless of how the current case studies end, it’s clear the government needs to look at new measures to ensure that would-be politicians are forced to comply with their constitutional requirements, as Australian Electoral Commission veteran Michael Maley has already suggested to a current parliamentary inquiry.
That’s just a basic integrity measure.
To give voters some confidence, it is also incumbent on the government to come clean about everything it has known about either matter.
And that means everything.
Anything less than full disclosure, and concrete steps to ensure greater integrity in the process in the future, will be marked down as a failure by the Turnbull government – and this is a government which is already chalking up too many failures in the minds of the voting public.
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