Australian Conservatives senator Cory Bernardi is pursuing the Australian Electoral Commission, arguing candidates who weren’t validly elected to parliament, including Barnaby Joyce, should be forced to repay the public funding they were allocated in the last federal election.
With the Turnbull government’s citizenship crisis spiralling on multiple fronts, Bernardi has said he intends to seek advice from the electoral commission about whether ineligible candidates at the last election, including people who weren’t elected but distributed preferences and affected the overall election result, should be entitled to public funding.
“It’s not just people who were successful with questions marks over them, but any endorsed candidate,” Bernardi said. “Any candidate who has received public funding or directed preferences that have affected political outcomes need to face the same levels of scrutiny.
“We have quite literally opened Pandora’s box. I will be seeking advice from the Australian Electoral Commission.”
The prime minister, Malcolm Turnbull, is due to fly to New England on Tuesday to join Joyce on the hustings, where he is contesting a byelection after being ruled ineligible by the high court.
The government is also facing questions about the eligibility of another of its lower house MPs, John Alexander. If Alexander establishes he holds British citizenship, it will trigger a byelection in the Sydney seat of Bennelong, which is held on a margin of 9.72%, and further imperil the Coalition’s grip on power.
Internal jostling for the position of Senate president is also under way inside the government, with the Nationals pushing John “Wacka” Williams for the post, while Liberals in the field are understood to include the frontbencher Scott Ryan, the South Australian David Fawcett, and Queenslander Ian MacDonald.
Government sources have confirmed the West Australian Liberal senator Linda Reynolds was also approached by some colleagues to throw her hat in the ring, but is not inclined to run.
Turnbull and Joyce will have an opportunity to discuss the issue on Tuesday before the prime minister departs overseas on Thursday.
Turnbull attempted to produce a circuit breaker in the rolling citizenship debacle on Monday by unveiling a new proposal under which MPs and senators would have to lodge declarations and produce evidence that they were not foreign citizens at the time of nomination.
While criticising the prime minister’s slow response, Labor has given the idea cautious in-principle backing, with caveats, ahead of a meeting between Turnbull and the Labor leader, Bill Shorten, on Wednesday.
While the government’s woes have dominated the headlines, Coalition MPs are also calling for two Labor MPs who appear to have missed the deadline to renounce their foreign citizenship to come clean or be referred to the high court.
Liberal senator Eric Abetz and Nationals MP Andrew Broad have taken aim at Justine Keay and Susan Lamb, who took steps to renounce British citizenship before the 9 June, 2016 deadline but will not say if their renunciation was processed and confirmed before that date.
Constitutional law experts Anne Twomey and George Williams have warned that under a strict reading of the high court’s unanimous citizenship seven judgment a person who “retains the status of subject or citizen of a foreign power” at the time of nomination will be disqualified.
On that reading, the only exception to that general rule is where “the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law” from participation in representative government.
Asked whether parliament should refer Keay, Lamb and others in their position to the court, Broad said: “Hell yes.”
“The deadline is the deadline, there is no moral high ground here,” he said. “It’s too late if renunciation comes after [the nomination] date.
“The media are more interested in a witch-hunt on the government side because it can bring down the government, but there needs to be transparency and honesty across the whole parliament to restore faith in democracy.”
In a statement Lamb said she took “all necessary steps” to renounce British citizenship by sending in the required form and fee in May 2016.
Keay said she had “renounced British citizenship” by filling the form in on 9 May, 2016 and sending to the Home Office on 13 May. It was delivered on 23 May and “receipted” on 31 May.
“I had therefore taken all reasonable steps to renounce British citizenship before nominations for the 2016 federal election officially closed at 12 midday on 9 June 2016,” she said.
Abetz has taken aim at Shorten’s comments that his MPs are “happy to come forward”, querying why Keay and Lamb had refused to reveal when their renunciation was processed by the UK government.
“[Bill] Shorten has said that all his MPs would release all their information yet [Justine] Keay and [Susan] Lamb continually refuse to do so,” he said.
“Unless they come clean, the high court may need to examine these cases in further detail.”
Labor stands by its view that its MPs took all reasonable steps to renounce.
On Monday the Greens leader Richard Di Natale said the Greens had “preliminary advice [that] anyone who has taken reasonable steps has done enough to renounce their citizenship status”.
But Di Natale said that was “ultimately” a question for the high court, which could consider the question after referrals from an audit of parliamentarians.
University of Queensland professor Graeme Orr has backed Labor and the Greens’ view that it is sufficient to have taken all reasonable steps before the deadline because it would be “very harsh and highly legalistic” to exclude those who had done everything they were required to do and were waiting for the foreign country’s bureaucracy to process a renunciation request.
The high court justices said that where a person “has taken all steps are that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power” they will be eligible, but it is unclear whether all steps reasonably required includes allowing some time for the renunciation to be processed.
