Amid calls for an in­de­pen­dent au­dit of the cit­i­zen­ship sta­tus of all MPs, some are sug­gest­ing false dec­la­ra­tions be re­garded as breaches of the Crimes Act, pun­ish­able with jail. Karen Mid­dle­ton re­ports.

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Vic­to­rian in­de­pen­dent MP Cathy Mc­Gowan has run out of sym­pa­thy for the dual cit­i­zens in her midst.

In a piv­otal bal­ance-of-power po­si­tion in the house of rep­re­sen­ta­tives, Mc­Gowan be­lieves it’s time not only for a full au­dit of all MPs and sen­a­tors’ cit­i­zen­ship sta­tus but for crim­i­nal penal­ties to be im­posed for in­ac­cu­rately fill­ing out their nom­i­na­tion forms in the first place.

The rev­e­la­tion that se­nate pres­i­dent Stephen Parry is not only a Bri­tish dual ci­ti­zen but that he waited un­til af­ter the High Court’s re­cent rul­ing to come for­ward – ap­par­ently hop­ing he wouldn’t need to – has prompted Mc­Gowan and her cross­bench col­leagues to de­mand that all MPs clar­ify their sta­tus.

They also want the en­force­ment of crim­i­nal penal­ties for false state­ments, a threat they ar­gue would make can­di­dates and par­ties un­der­take more com­pre­hen­sive check­ing.

Mc­Gowan has told The Satur­day Pa­per that ex­pul­sion from par­lia­ment should not be the only penalty for trans­gres­sion of sec­tion 44(i) of the Aus­tralian con­sti­tu­tion.

“I’m re­ally at the stat dec stage,” Mc­Gowan says. “A stat dec is a le­gal doc­u­ment that peo­ple sign reg­u­larly and I think that’s re­ally where we need to do the work.”

When nom­i­nat­ing for elec­tion, can­di­dates sign a dec­la­ra­tion that they are el­i­gi­ble on the grounds set out in sec­tion 44. But once elected, any par­lia­men­tar­ian who dis­cov­ers they may hold other cit­i­zen­ships can qui­etly re­nounce them. If they can make it to the next elec­tion with no­body find­ing out, there is no ret­ro­spec­tive penalty for be­ing in par­lia­ment un­law­fully.

Mc­Gowan wants false elec­toral nom­i­na­tion dec­la­ra­tions to be treated the same as false dec­la­ra­tions on any other gov­ern­ment form: deemed to be a breach of the Crimes Act and at­tract­ing a po­ten­tial penalty of four years’ jail.

She be­lieves the gov­ern­ment’s re­fer­ral of the High Court’s de­ci­sion in the cases of for­mer deputy prime min­is­ter Barn­aby Joyce and six – soon to be seven – sen­a­tors to the joint stand­ing com­mit­tee on elec­toral mat­ters should also cover the en­force­ment of penal­ties.

“I ac­tu­ally see this as a re­ally im­por­tant is­sue,” Mc­Gowan says. “It’s a le­gal is­sue. We should treat it like we do with peo­ple who com­mit fraud on so­cial se­cu­rity. That’s where I’d like the in­ves­ti­ga­tion to go.”

She is not rul­ing out with­hold­ing sup­port for gov­ern­ment leg­is­la­tion to se­cure agree­ment, but says she is not threat­en­ing that “at this stage”.

Mc­Gowan is back­ing Greens leader Se­na­tor Richard Di Natale’s pro­posal that an in­de­pen­dent body con­duct an au­dit and then re­fer doubt­ful cases to the High Court.

“There are a range of ways you could do it,” Di Natale told the ABC’s

7.30 pro­gram on Tues­day, af­ter Parry’s rev­e­la­tion.

“You could do it through the in­de­pen­dent par­lia­men­tary ex­penses au­thor­ity and em­power them to con­duct it. You’d only need a small num­ber of im­mi­gra­tion lawyers. A se­nior bu­reau­crat could knock it over in­side a month. Then we’d know very clearly who’s in­el­i­gi­ble to stand and deal with it all at once, rather than this drip-feed­ing that’s go­ing on at the mo­ment that re­ally is dis­tract­ing every­body.”

The gov­ern­ment has dis­missed the au­dit idea out of hand.

Trea­surer Scott Mor­ri­son ridiculed it as be­ing like “some re­al­ity tele­vi­sion show of Who Do You Think You Are?”.

“Aus­tralians are more in­ter­ested in their jobs than peo­ple’s ge­nealo­gies,” Mor­ri­son said on Thurs­day.

“The idea that some­how we need to set up the of­fice of the public ge­neal­o­gist I think is get­ting a bit ridicu­lous.”

Mc­Gowan and the Greens are not alone in be­liev­ing an au­dit and stronger en­force­ment are re­quired.

In­de­pen­dent An­drew Wilkie also sup­ports a whole­sale ex­am­i­na­tion of par­lia­men­tar­i­ans’ cit­i­zen­ship. He says there’s “al­most a cease­fire of sorts de­clared” be­tween the ma­jor par­ties.

“I think it’s in both their self­in­ter­ests not to have an au­dit, but of course, it’s not in the public in­ter­est,” Wilkie told ABC Ra­dio Na­tional.

Fel­low cross­bench MP Bob Kat­ter says he had pre­vi­ously queried calls for an au­dit be­cause of the risk of in­no­cent peo­ple be­ing caught up in a witch-hunt. But he thinks the de­te­ri­o­rat­ing sit­u­a­tion makes it nec­es­sary.

“I’ve changed my po­si­tion, to be hon­est,” Kat­ter says. “I’ve been think­ing about this. It’s just not good enough.”

He also sup­ports en­forc­ing penal­ties for in­ac­cu­rate dec­la­ra­tions.

“I think there should be some form of ret­ri­bu­tion here. I mean, af­ter all, you have filled out a form.”

He says Mc­Gowan’s idea should be “se­ri­ously con­sid­ered”.

“I’m with Cathy on this,” Kat­ter says. “We should find them and boot them out.”

MP Re­bekha Sharkie, from the Nick Xenophon Team, sup­ports both an au­dit and an ex­am­i­na­tion of tougher penal­ties for false dec­la­ra­tions.

“I think that’s fair,” Sharkie told The Satur­day Pa­per.

“Ob­vi­ously it’s about whether you knew at the time you were giv­ing a false dec­la­ra­tion. But I think we need to do all we can to get back some of the faith from the com­mu­nity.”

Sharkie cites ma­jor-party ob­struc­tion in the past, over en­ti­tle­ments.

“We tried to get up greater penal­ties when peo­ple do the wrong thing around travel, and both the ma­jor par­ties wouldn’t sup­port it.”

Ex-Lib­eral cross­bench se­na­tor Cory Bernardi, who formed the Aus­tralian Con­ser­va­tives, wants par­lia­men­tar­i­ans to be made to sign new dec­la­ra­tions in the wake of the court rul­ing.

“Get them to sign a statu­tory dec­la­ra­tion and then if they’re found to have fal­si­fied that stat dec they ac­tu­ally face a term of im­pris­on­ment or a sig­nif­i­cant fine,” Bernardi told Sky News.

“Put the weights on them be­cause I reckon there’s more, still more.”

Oth­ers share his view.

Right across the po­lit­i­cal spec­trum, mem­bers, sen­a­tors and their staff are say­ing pri­vately they sus­pect there are more. But in the ab­sence of fur­ther con­fes­sions, it is be­ing left to the me­dia to pur­sue con­sti­tu­tional com­pli­ance.

Jour­nal­ists – with pri­vate en­cour­age­ment from var­i­ous par­ties’ spear-car­ri­ers – are com­pil­ing lists and chas­ing down the sta­tus of more than 20 other MPs and sen­a­tors across the par­ties who have not pro­duced ev­i­dence to sup­port their dual-cit­i­zen­ship de­nials.

Those in the doubt­ful col­umn in­clude more than a dozen from La­bor and at least an­other half-dozen Lib­er­als.

Logic sug­gests that given five sen­a­tors have turned out to have been in­el­i­gi­ble among an up­per house num­ber­ing 76, it is likely more than one of the 150 mem­bers of the house of rep­re­sen­ta­tives may also have a prob­lem.

The La­bor and Lib­eral par­ties are re­ly­ing on the doc­trine of mu­tu­ally as­sured de­struc­tion and the bib­li­cal prin­ci­ple of let­ting those with­out sin cast the first stone.

The ma­jor par­ties are de­clin­ing to level ac­cu­sa­tions at any of each other’s mem­bers whose her­itage might jeop­ar­dise their el­i­gi­bil­ity. Once that first rock is hurled, no­body knows the dam­age that might be wrought.

Both par­ties had claimed their su­pe­rior vet­ting pro­ce­dures meant none of their mem­bers were at risk.

But the ad­mis­sion from Stephen Parry – who as se­nate pres­i­dent signed six of the cit­i­zen­ship re­fer­rals to the High Court – is threat­en­ing to shat­ter that dé­tente.

At­tor­ney-Gen­eral Ge­orge Bran­dis is hop­ing it will hold.

“If any­body wants to make an al­le­ga­tion that a mem­ber of par­lia­ment was not duly elected be­cause of a sec­tion 44 is­sue, or for any other rea­son for that mat­ter, then let them make that al­le­ga­tion,” Bran­dis said on Tues­day, af­ter Parry’s rev­e­la­tion.

He later told ABC Ra­dio Na­tional: “I don’t favour hav­ing some kind of witch-hunt.”

Nei­ther does the op­po­si­tion.

Asked about an au­dit, act­ing leader Tanya Plibersek said: “We’re very con­fi­dent that no La­bor MP is a dual ci­ti­zen.”

All La­bor MPs and sen­a­tors are be­ing en­cour­aged to use the qual­i­fier about be­ing “con­fi­dent”, avoid­ing an ab­so­lute dec­la­ra­tion.

“We’ve got very strict pro­cesses, we’ve got very care­ful pro­ce­dures when peo­ple are ap­ply­ing to be can­di­dates,” Plibersek in­sisted.

She said all the “chaos” was with the gov­ern­ment.

“They’ve got Lib­eral and Na­tional MPs who plainly were elected when they were not el­i­gi­ble to stand. It’s been dragged out of them kick­ing and scream­ing… I would’ve thought ev­ery sin­gle mem­ber of par­lia­ment and ev­ery sin­gle se­na­tor would’ve been dou­blecheck­ing their own el­i­gi­bil­ity if they had any doubts at all.”

But with La­bor stak­ing ev­ery­thing on their mem­bers not be­ing af­fected, there are mur­murs that some are be­ing told it is bet­ter not to check.

The gov­ern­ment is em­pha­sis­ing in­di­vid­ual re­spon­si­bil­ity.

“It’s in­cum­bent on ev­ery in­di­vid­ual mem­ber and se­na­tor in the Aus­tralian par­lia­ment to com­ply with the con­sti­tu­tion,” Fi­nance Min­is­ter Mathias Cor­mann told the ABC’s 7.30.

“…And if we be­come aware of in­for­ma­tion that we might be in breach, we need to take the ap­pro­pri­ate steps.”

He says the bur­den of proof is on those al­leg­ing a breach.

Cor­mann ar­gues an au­dit would not re­solve the is­sue be­cause, un­der the con­sti­tu­tion, only the High Court can de­ter­mine el­i­gi­bil­ity.

But the pro­posed au­dit doesn’t seek to usurp the High Court. It would form a thresh­old test to iden­tify those who are only Aus­tralian cit­i­zens, those – such as for­mer se­na­tor Parry – who clearly hold dual cit­i­zen­ship and those whose sta­tus is un­clear.

Those lat­ter cases would then be re­ferred to the High Court.

Some ar­gue it amounts to a re­verse onus of proof and would also be un­fair to those whose her­itage au­to­mat­i­cally be­stows cit­i­zen­ship of coun­tries that do not al­low re­nun­ci­a­tion, po­ten­tially leav­ing their sta­tus un­der a cloud and jeop­ar­dis­ing their abil­ity to con­test fu­ture elec­tions.

Oth­ers counter that the con­sti­tu­tion al­lows for those who have taken “all rea­son­able steps”.

Sub­ject­ing the whole par­lia­ment to a cit­i­zen­ship au­dit that un­earthed more lower-house dual na­tion­als could see the Coali­tion lose gov­ern­ment. Al­ter­na­tively, it could see La­bor’s num­bers drop, mak­ing the gov­ern­ment more se­cure.

There would need to be more by­elec­tions or pos­si­bly an early fed­eral elec­tion.

Nei­ther ma­jor party wants to ex­plore those sce­nar­ios.

The for­mer chief of staff to then prime min­is­ter Tony Ab­bott, Peta

Credlin, has ac­cused the par­ties of col­lud­ing, say­ing she be­lieves “there has been con­ver­sa­tions had via whips, via lead­ers, via peo­ple on the in­side that this is go­ing to end in tears if this is pur­sued”.

No ev­i­dence of that has been pro­duced.

But on Sky News, Credlin re­vealed that when she was in Ab­bott’s prime min­is­te­rial of­fice, there were deals struck with the op­po­si­tion to stop at­tack­ing each other over is­sues of mu­tual dis­ad­van­tage, such as par­lia­men­tary en­ti­tle­ments, “lest we have more ca­su­al­ties”.

That’s not to say they will es­chew op­por­tu­ni­ties to score points against each other where pos­si­ble.

La­bor hopes to use the gov­ern­ment’s slim­mer grip on power – in the ab­sence of Barn­aby Joyce, now fac­ing a De­cem­ber 2 by­elec­tion – dur­ing this year’s fi­nal two par­lia­men­tary sit­ting weeks to re­vive moves for a royal com­mis­sion into the banks and to try to over­turn gov­ern­ment leg­is­la­tion cut­ting week­end penalty rates, which passed by a sin­gle vote.

Both would still re­quire gov­ern­ment MPs to vote with the op­po­si­tion, some­thing that’s un­likely, be­cause los­ing even that kind of vote could have broader im­pli­ca­tions for the gov­ern­ment.

The par­lia­men­tary guide­book, House of Rep­re­sen­ta­tives Prac­tice, says: “A vote by the House agree­ing to a par­tic­u­lar leg­isla­tive mea­sure or pro­vi­sion con­trary to the ad­vice and con­sent of the Gov­ern­ment could sim­i­larly be re­garded as a mat­ter of con­fi­dence.”

The gov­ern­ment could then choose to re­sign or re­assert its au­thor­ity through putting its own con­fi­dence mo­tion to a vote.

Cathy Mc­Gowan and Re­bekha Sharkie con­tinue to of­fer the Turn­bull gov­ern­ment sup­port on both con­fi­dence and sup­ply. But los­ing any vote would be em­bar­rass­ing for Turn­bull.

The au­dit ques­tion is now also be­com­ing an­other weapon for con­ser­va­tive Lib­er­als to whack the prime min­is­ter.

Those Lib­eral back­benchers ad­vo­cat­ing for an au­dit are all sup­port­ers of his pre­de­ces­sor Tony Ab­bott: Vic­to­rian for­mer min­is­ter Kevin An­drews, Tas­ma­nian for­mer min­is­ter Se­na­tor Eric Abetz, and New South Wales Lib­eral MP Craig Kelly.

Some Na­tion­als also favour an au­dit. NSW Na­tion­als se­na­tor John “Wacka” Wil­liams says he thinks it’s a good idea.

Wil­liams is at the cen­tre of the lat­est in­tra-Coali­tion brawl in the cit­i­zen­ship fall­out, with the Na­tion­als push­ing for him to take the se­nate pres­i­dency now va­cant through Stephen Parry’s res­ig­na­tion.

When the Coali­tion is in gov­ern­ment, the pres­i­dency tra­di­tion­ally goes to the se­nior part­ner, the Lib­er­als.

But with Lib­eral Hol­lie Hughes set to re­place ousted Na­tion­als se­na­tor Fiona Nash cour­tesy of hav­ing fielded a joint Coali­tion se­nate ticket in NSW at last year’s elec­tion, the Na­tion­als are try­ing to lay claim to the pres­i­dency in­stead, ar­gu­ing it was their party’s elec­toral suc­cess that se­cured gov­ern­ment for the Coali­tion.

Prime Min­is­ter Mal­colm Turn­bull has given them short shrift.

As three Na­tion­als min­is­ters were among those whose cit­i­zen­ship woes went be­fore the court – and two were thrown out of par­lia­ment – he is not feel­ing sym­pa­thetic.

Turn­bull also en­cour­aged MPs and sen­a­tors to take re­spon­si­bil­ity.

“The obli­ga­tion is a per­sonal one on each mem­ber and se­na­tor,” Turn­bull told jour­nal­ists dur­ing his visit to Is­rael.

He also noted the sig­nif­i­cance of the can­di­dates’ dec­la­ra­tion.

“Af­ter all, when you run for par­lia­ment, you sign, you tick a box on the form which says you’re not in breach of sec­tion 44.”

Hav­ing not been told about Stephen Parry’s predica­ment un­til Tues­day – a full day af­ter Parry told At­tor­ney-Gen­eral Ge­orge Bran­dis – Turn­bull also re­buked the sud­denly re­tir­ing se­na­tor.

“I’m dis­ap­pointed that Se­na­tor Parry didn’t make public this is­sue, some time ago, quite some time ago,” Turn­bull said.

The Satur­day Pa­per has been told Parry con­fided in at least one min­is­te­rial col­league that he feared he had a prob­lem sev­eral months ago. Com­mu­ni­ca­tions Min­is­ter Mitch Fi­field has con­firmed that he has known for weeks.

Parry did not re­turn The Satur­day Pa­per’s calls.

La­bor’s se­nate leader Penny Wong said it was “more than dis­ap­point­ing that Se­na­tor Parry took so long ”.

“The Lib­eral Party should have been check­ing this as the La­bor Party has,” Wong said.

She echoed the fi­nance min­is­ter’s ar­gu­ments against an au­dit.

“Ul­ti­mately the only body un­der our con­sti­tu­tion that can de­ter­mine if an MP or a se­na­tor has dual cit­i­zen­ship and is not en­ti­tled to stand is the High Court. That is why we’ve had a process of sel­f­re­fer­ral.”

For­mer Keat­ing gov­ern­ment min­is­ter Gra­ham Richard­son, now a com­men­ta­tor on Sky News, summed up the cyn­i­cism of many watch­ing the reignited cit­i­zen­ship de­ba­cle, tak­ing a swipe at any­one who might be sit­ting qui­etly on the leather benches, wor­ried they too might be un­law­ful but hop­ing to get away with it.

“Imag­ine sit­ting there, know­ing you are a ci­ti­zen of an­other coun­try,” Richard­son mused.

Yes, imag­ine. Who would pos­si­bly have an in­ter­est in do­ing that?


KAREN MID­DLE­TON is The Satur­day Pa­per’s chief po­lit­i­cal cor­re­spon­dent.

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