There has been a bombshell twist in the saga surrounding now former South Australian Senator Bob Day, with the High Court to decide if he was legally elected in the first place.
The Senate President Stephen Parry emailed Senators to say that after receiving Mr Day's resignation, he had to write to the South Australian Governor to say he was not sure it created a casual vacancy for which Family First could nominate a replacement.
The Attorney-General George Brandis and Special Minister of State Scott Ryan then released a statement confirming that government is referring the matter to the High Court for resolution.
The statement said that it relates to section 44 of the Constitution, regarding a potential indirect pecuniary interest in a contract with the Commonwealth.
SBS News understands it may relate to arrangements around Mr Day's electoral office.
"When the Senate reconvenes on Monday 7 November the Government intends to initiate a Senate referral of the matter to the High Court," the statement said.
This was raised with Mr Day last Friday, raising questions about whether this is what forced him to finally tender his resignation today, after deciding to serve out the rest of his term last week, despite saying he would quit because his building company was in liquidation.
The Opposition's Senate leader Penny Wong said there is now doubt as to whether Mr Day was validly elected to the Senate at this year’s federal election.
"If he was not, Mr Day’s resignation would not create a casual vacancy because he was never validly elected in the first place," Senator Wong said.
"Precedent suggests the appropriate method for replacing Mr Day in the Senate would therefore be through a recount of the SA Senate vote rather than through the SA Parliament appointing a replacement."
This uncertainty will likely mean the senate seat is vacant for the rest of the Parliamentary year, denying the government one of the nine votes needed to pass crucial legislation.
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