The government has shrugged off Labor’s call to reject the vote of Bob Day, who has now indicated he will stay to vote on key elements of the government’s program despite announcing his intention to quit.
On Wednesday the prime minister’s office and treasurer Scott Morrison said that the South Australian senator’s vote was a matter for him. The Coalition could nullify his vote by taking one of its own senators out of the count for contentious legislation, but it has refused to do so.
Debate has shifted to the moral acceptability of Day’s vote in the Senate, as two constitutional experts told Guardian Australia his potential personal insolvency is not a bar to staying until a court finds him bankrupt or insolvent.
On Monday last week, Day announced his intention to resign from the Senate on the basis it would be “untenable” to stay given the liquidation of his building companies.
The South Australian government has said it is prepared to facilitate the immediate appointment of Day’s successor.
But on Wednesday, Day confirmed reports he intended to delay his resignation in a series of tweets explaining Family First would not have time to select his replacement before the end of the year:
If I left @AuSenate now there would be no Family First vote & 1 less SA vote. There isn't time to install a replacement before year's end
— Bob Day (@senatorbobday) October 25, 2016
He cited the marriage equality plebiscite legislation and Australian Building and Construction Commission bills as two examples of work that was “too important to Family First to have a vacant seat”:
Marriage plebiscite legislation, ABCC and our other work too important to Family First to have a vacant seat for even 1 day in November.
— Bob Day (@senatorbobday) October 25, 2016
On Wednesday opposition leader Bill Shorten said it was “peculiar” that Day had changed his mind in order “to stay in the parliament and back in anti-worker laws of the Turnbull government”.
Shorten questioned why the government would accept “the vote of someone who has self-declared his position as untenable”.
“But in the meantime, hundreds of Australian families have been left high and dry by his company’s actions, yet he wants to sit there and pull a $4,000 a week wage until it suits him when to leave the Senate.
“It’s not good enough.”
A spokeswoman for the prime minister told Guardian Australia “Bob Day’s vote is a matter for him and his party”.
At a press conference in Adelaide, Morrison said it was “regrettable” that Day’s business had collapsed but he had “no doubt” that Day would not be in breach of the law by staying.
“So as long as he’s lawfully able to remain in the Senate, that’s a matter for him when it comes to the timing of his removal to make his own decisions,” he said.
The treasurer earlier told FiveAA radio that Labor was “lying” when it suggested the government had asked Day to stay on to vote for its bills.
According to an ABC report, the leader of Family First has suggested that Bob Day’s company could be saved by an investor that has come forward.
If Day is unable to raise enough money through a sale or investor to pay the companies’ debts, then personal guarantees he has given over a portion of the debt may risk him becoming insolvent or being declared bankrupt.
A spokesman for the companies’ liquidator McGrath Nichol told Guardian Australia unsecured creditors are owed $12.5m. There is also an outstanding bank debt, the size of which will be disclosed soon.
Section 44 of the constitution bars a person who is an “undischarged bankrupt or insolvent” from sitting as a member of parliament.
Constitutional law expert Anne Twomey told Guardian Australia the reference “appears to be to the personal insolvency of a member of parliament not the insolvency of any corporation in which he or she is involved”.
Twomey said, based on current case law, “some kind of court finding is necessary to establish ‘insolvency’ [or bankruptcy] for the purposes of disqualification”.
Constitutional law expert, Tony Blackshield, agreed that a person had to be “subject to a judicial order declaring your bankruptcy or insolvency, and the order has not been discharged”.
On 14 October, outgoing solicitor general Justin Gleeson revealed that on the previous day, less than a week before Day’s resignation, the attorney general had sought urgent advice about the composition of the Senate.
Asked if the advice related to Day, a spokeswoman for George Brandis referred Guardian Australia to the attorney general’s answer in the Senate committee on 14 October, refusing to say who or what the advice was about.
