Malcolm Turnbull

Day, Culleton referred to High Court

Rod Culleton and Bob Day Source: AAP

Two crossbench senators will face High Court challenges to their eligibility as the government faces questions about how it got this far.

The Senate has taken unprecedented action in referring two of its own members to the High Court to rule on their eligibility to run for parliament.

While Family First senator Bob Day has already resigned from the upper house, One Nation senator Rod Culleton has vowed to keep voting on bills and defend himself in court, despite his own party surprisingly backing the court referral.

Labor supported both referrals in parliament on Monday, but accused the government of mishandling the Day matter since negotiations began on a controversial electorate office lease in 2014.

Labor leader Bill Shorten said Prime Minister Malcolm Turnbull had "kept secret" government concerns about Mr Day since August, while accepting his vote in the Senate.

Mr Day had been a staunch supporter of government legislation since coming to parliament in 2013.

Mr Turnbull said the opposition was engaging in "sanctimonious humbug".

"The circumstances of 2014 are not matters that I have any personal knowledge of," Mr Turnbull told parliament.

"I'm satisfied that my government has conducted itself with respect to this matter with great diligence and great integrity and great thoroughness."

The High Court will examine whether Mr Day received an indirect financial benefit from the government as a result of an arrangement involving his Adelaide electorate office.

The office - which was leased by the government from December 1, 2015, to October 7 this year - was sold to a friend in 2014, but Mr Day's company loaned money to make the purchase and was ultimately liable for the mortgage.

Receiving a financial benefit from the commonwealth disqualifies a person from holding a seat in parliament under the constitution.

Labor Senate leader Penny Wong said while the opposition supported the Day referral, the government should release all of its legal advice.

She questioned why the government repeatedly "turned a blind eye" to issues around Mr Day's electorate office to retain an ally in the Senate.

Finance Minister Mathias Cormann "emphatically" denied the claim, saying he "treated Senator Day in the precise same way as I would've dealt with any member and senator in this place."

Mr Day has rejected any wrongdoing, saying the Finance Department had merely told him it was "not a good look" for a senator to own his electorate office.

Senator Culleton's separate referral to the High Court stems from a larceny conviction against him which stood at the time of the July 2 election but was later annulled.

Under the constitution, any person who has been convicted of an offence punishable by a jail sentence of a year or longer is incapable of being chosen as a senator.

Senator Culleton said he would fulfil his commitment to voters as long as he was in the Senate despite earlier pledging not to vote on contentious matters until the issue was resolved.

He questioned the legitimacy of the court action against him and Mr Day.

One Nation leader Pauline Hanson said it should go to the High Court but she would like to see Senator Culleton return to the upper house.

"We have seen on too many occasions politicians in this place and the other place who have not been accountable to the Australian people and I will not stand here and be of the same ilk," she said.

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