Malcolm Turnbull has accused Bill Shorten of attempting to “protect” Labor MPs who appear to be in breach of the constitution by asking the government not to unilaterally refer them to the high court.
The prime minister pointedly refused the request, warning that the government will refer anyone where there are “substantial grounds” for believing they have breached the constitution, regardless of whether they can set out steps they took to renounce foreign citizenship.
Despite an attempt to reach a bipartisan consensus at an inconclusive meeting on Wednesday, Shorten and Turnbull are now locked in a war of words, accusing each other of bad faith and attempting to game disclosure requirements to maximise the chances of their own MPs avoiding referral to the high court.
Shorten sent Labor’s preferred resolution to Turnbull on Thursday, demanding disclosure of foreign citizenship by 1 December and insisting that parliamentarians declare the fact of their foreign citizenship, not just their belief about it.
By asking parliamentarians to declare “all steps reasonably required” to renounce foreign citizenship without asking for proof of when the renunciation was effective, the Labor resolution may make it less likely that the Labor MP Justine Keay, whose renunciation was not effective by the nomination deadline, and others in her position will be referred to the high court.
Shorten also asked the government to “abide by the established precedent that there should be no partisan referrals”.
“Accordingly no party should abuse its numbers ... to unilaterally refer senators or members that have stated the clear grounds on which they are eligible under section 44(i) and are consistent with the most recent decisions of the high court,” he said.
Turnbull replied accusing Shorten of attempting to prevent the high court from considering cases where people have admitted “they were and knew they were” citizens of the UK.
The prime minister said he understood Shorten’s “concern to protect the position of several of your MPs who were admittedly UK citizens at the time of nomination”, who he said were “prima facie in breach” of the constitution.
But Turnbull argued the UK renunciation process was “not unreasonable or onerous” and did not “irremediably” prevent Australians from running for parliament, the test set in the high court’s citizenship seven decision.
Parliamentarians who took reasonable steps to renounce could state so in their declarations and argue the case before the high court, he suggested.
The Labor proposal also raises the threshold for disclosure by asking for the date and place of birth of MPs’ and senators’ grandparents, after reports on Thursday suggested Turnbull had proposed this but it was rejected by cabinet on Monday.
The new requirement to declare “what steps the member has taken to assure him or herself that they have not inherited citizenship of another country from a parent or grandparent” could force parliamentarians to reveal if they had sought legal advice about the effect of foreign citizenship laws.
In the past week it has been suggested that the Liberal MP Alex Hawke may have Greek citizenship, the energy and environment minister, Josh Frydenberg, may have Hungarian citizenship and the Liberal MP John Alexander may have British citizenship – all by descent from their parents. All have denied holding dual citizenship, as has the Liberal MP Julia Banks.
While Labor is confident its vetting processes successfully detects foreign citizenship among its candidates, the new proposed requirement could catch Coalition MPs and senators who believe they do not have citizenship by descent but have not conducted proper checks.
Shorten argued the prime minister’s proposal was “inconsistent” with high court decisions because it asks MPs and senators for their “qualified belief, awareness and knowledge” of foreign citizenship.
He said Labor did not support a resolution which “waters down the standard set by the high court”, a characterisation which Turnbull rejected.
Instead, Labor proposed that MPs and senators declare simply that they were not foreign citizens at the time of nomination, which may expose them to charges of contempt of parliament if they make an incorrect declaration.
Turnbull responded that it was “unreasonable” to seek an unqualified statement that a person was not a foreign citizen. He noted that foreign citizenship is determined by a mix of facts and foreign law, but many politicians may not know where their parents “let alone grandparents” were born.
Turnbull also rejected a suggestion from Shorten that the communications minister, Mitch Fifield, should be referred to the privileges committee for not declaring that the Senate president, Stephen Parry, may have a citizenship conflict.
Turnbull made a counter-offer for all disclosures to be due by 7 December, which he suggested would allow referrals by the end of the year, if an extra sitting of parliament were held.
Earlier, at a press conference in Bundaberg, Queensland, Shorten said the Turnbull government was “engulfed in a citizenship crisis”.
Shorten rejected Turnbull’s suggestion parliament may have to hold extra sittings to deal with the issue, saying he did not want to see “one more dollar wasted” on it.
“I mean, you’d have to live on another planet, if you’re an MP, not to realise that you need to sort out your citizenship information,” he said.
Turnbull’s proposed resolution – released on Monday – would ask parliamentarians whether they have ever been citizens of a foreign country and, if so, to provide “details and evidence of the time and manner in which the member’s citizenship of that other country was renounced or otherwise came to an end”.
The Labor resolution gives MPs and senators the option of either declaring they were not a foreign citizen at the nomination date or, if they were, to instead provide “a declaration demonstrating how he or she took all steps reasonably required by foreign law and within his or her power to renounce any foreign citizenship”.
The requirement for a declaration without “details and evidence” suggests parliamentarians could declare that they had filed for renunciation without producing a certificate that showed when the renunciation was effective.
