Labor has demanded to know what the Turnbull government knew and when in relation to the controversy surrounding the eligibility of the former Family First senator Bob Day, which is now heading for the high court.



In a statement on Wednesday, Day confirmed the government had legal advice saying he was ineligible but maintained he had no conflict of interest because he had sold the building which the government leased from his associate.

Labor’s Senate leader Penny Wong told the ABC on Wednesday morning the government needed to say “what it knew when” – specifically when concerns about Day’s eligibility to sit in the Senate were first raised with the government.

“The best thing that George Brandis could do as leader of the government in the Senate is stand up and be completely transparent about the timetable,” she said, noting Bob Day voted with the government “nine out of 10 times”.

Australians would “not look too kindly on a government that sat on information or didn’t deal with concerns because it wanted someone’s vote”, she said.

The government and Labor have queried whether Day was eligible to sit in the Senate because of a potential breach of section 44 of the constitution which forbids “any direct or indirect pecuniary interest in any agreement with the public service of the commonwealth”.

Day once owned the building which houses his Adelaide electoral office, but sold it to a business associate. Day, however, remained liable for the mortgage on the building, which potentially triggers section 44 issues.

In his statement, Day said that his associate’s company “owes me money”, which the federal Department of Finance’s legal opinion characterises as an “indirect” interest in the lease with the commonwealth.

Explainer: Senator Bob Day's electorate office In January 2014 Family First Senator Bob Day discusses with federal Department of Finance officials establishing his electorate office in a building in Fullarton Road, Kent Town, Adelaide. Day doesn't want to use former senator Don Farrell's old office in Adelaide CBD (already leased at $99,000 pa until mid-2016). In February 2014, finance officials tell then-special minister of state Michael Ronaldson they do not recommend establishing a new office for Day. They note Day owns the building and intends to sell it on condition the office is leased to the commonwealth, and write: 'Finance has concerns about how such a transaction might be perceived.' Ronaldson tells Day in March 2014 he can move but the commonwealth won't pay his rent while the Adelaide CBD office lease is still in place. Day agrees to terms for Fullarton Road lease including rent-free period while the CBD office is empty. On 4 August 2016 Day approaches the new special minister of state Scott Ryan about rent on the office. Ryan seeks further information and discovers there may be a constitutional breach. Ryan terminates the lease on 7 October 2016 and seeks independent legal advice from constitutional law expert David Jackson. On 27 October 2016 Ryan receives legal advice regarding the possible invalid election of Day - concerns over indirect pecuniary interest because building owner owes Day money. Day says he has legal advice there is no breach because he does not have a contract or agreement with the commonwealth.



Day revealed the department’s advice said he was not eligible from the day the lease was signed on 1 December 2015, despite the fact it specified no rent was to be paid until 1 July this year. No rent was ever paid, he said.

The former Family First senator said he had advice he was eligible for the Senate, based on a high court decision that a family company having a contract with the commonwealth did not represent a pecuniary interest.

“In my case, I had no contract or agreement with the commonwealth. I had an agreement with someone else who had an agreement with the commonwealth.”



Wong’s demands came as Guardian Australia confirmed the government knew about the potential problems with the Day lease since before the last election.

The lease on the building expired in August.

After an exchange of communication in early August, the special minister of state, Scott Ryan, advised the Family First senator in writing on 7 October he was terminating the lease and would seek the advice of an independent counsel about the constitutional implications.

Ryan got the independent legal advice last Thursday, then informed the Senate president, Stephen Parry in writing of the government’s intentions.

The former solicitor general, Justin Gleeson, said two weeks ago he had provided “urgent advice on a high court proceeding which has questions of law attached to it which relate to the composition of this Senate”.





On the ABC on Wednesday morning, the finance minister, Mathias Cormann, said the Gleeson advice did not pertain to Day and the section 44 constitutional matter. Guardian Australia has confirmed it did not relate to Day at all, meaning the eligibility of another senator may be in doubt.

Section 44 of the constitution sets out the criteria for ineligibility, which includes being a foreign citizen, being bankrupt or insolvent, or holding an office of profit under the crown.

It also says people cannot be elected to parliament if they have “any direct or indirect pecuniary interest in any agreement with the public service of the commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than 25 persons”.

Day texted an Adelaide radio station on Wednesday morning demanding to know whether there were any other senators with financial interests.

Cormann defended the government’s actions. He said the government did not drag its heels on the matter, but sought legal advice on the implications of the commercial arrangements.

He said the government sought legal advice, and put the advice in the hands of the Senate president the day after it was received.

Ryan said the requests for legal advice went backwards and forwards between the government and external counsel over several weeks before the it was finalised.

He said the government had acted “with entire probity on this”. Ryan said he was “unaware” of any problems with other senators.

Cormann was asked about the government’s decision to accept Day’s vote on legislation intervening in the Country Fire Authority dispute in Victoria.

The finance minister said at that point inquiries were ongoing and the government was not in a position to make a judgment about whether Day was eligible to sit in the Senate. “That is up to the high court.”

Cormann said Day’s ineligibility was not yet a settled question. “The only authority that can settles the question is the high court.”

Ryan said the law stipulated a person remained a senator until a competent body found otherwise.

Wong said the Senate president had briefed party leaders confidentially in the past few days, but said there were “questions about the extent to which this is something people have been concerned about for some time”.

“This goes to the function of our democracy, this goes to the integrity of the Senate.”

Wong said Labor would support a high court case but asked to see the terms of the referral to the court before Monday.