SUBJECTS: Citizenship; Marriage equality.

FRAN KELLY, PRESENTER: Tanya Plibersek, welcome back to Breakfast.


KELLY: Katy Gallagher was a dual national for two months after nominations closed for last years' election. That's against the law under the Constitution. Will Labor refer her to the High Court or at least cooperate with a government referral?

PLIBERSEK: Katy Gallagher took all reasonable steps to renounce her citizenship before she nominated, and that's the point here. When you look at Fiona Nash, Barnaby Joyce, all of these others who have been referred by the Government, the point is they took no steps to renounce their dual citizenship. Katy, because she's taken all reasonable steps, is fine. 

KELLY: Well you say she's fine, and maybe until we had the last High Court decision, everyone might've agreed you're fine. But that High Court decision does require this to be tested. If you're on such solid ground, why not test it, why not find out?

PLIBERSEK: Actually the last High Court decision doesn't change anything. We still have the test that if a person has taken all reasonable steps to renounce their citizenship, then that's what the High Court requires. Now, the Government is trying to portray the last High Court decision as somehow stricter. What the Government argued last time they went to the High Court is that ignorance should be a defence. If you didn't know you were a dual citizen, then you should be let off somehow. Of course, the High Court didn't agree with that, they said that ignorance is no defence, but taking all reasonable steps is the test that was established and that's the test that remains.

KELLY: Well we've spoken here on Breakfast to a number of constitutional experts, Anne Twomey and others, who say it isn't clear and it probably does need to be tested. Again, if you're on such solid ground, if Katy Gallagher is on such solid ground, why not test it and find out?

PLIBERSEK: Look we'll be having all of those conversations this week in any case, because it's not just the Senate disclosures that will become public this week, but as you mentioned a minute ago, the House of Reps as well. We might find that there are other people in the Liberal and National parties who have a lack of clarity around their citizenship. This is something that we'll have to discuss over the rest of the week as a Parliament.

KELLY: Do you agree that it's time now for all MPs to fess up and clear this issue once and for all? That's what the Australian people want. They're sick of it.

PLIBERSEK: And that's why Labor demanded this disclosure process. That's why we asked for a faster, stronger disclosure process. The Government wanted a slower, weaker disclosure process that included people's own belief about their citizenship rather than testing the facts of their citizenship by including their parents and, in the case of the House of Representatives, spouses as well. And we're very pleased to cooperate in the way that we have because we believe our MPs have all taken all reasonable steps to renounce.

KELLY: You say you believe it but again, the only people who can really determine that is the High Court. 

PLIBERSEK: Well the Parliament today will have all of this information available to it, if there are people who believe that they have, you know, tumbled on to something, they're able to make that case. They're able to, with all of this information, make an argument about referrals on either side. We're pleased to participate in a disclosure process that applies to everyone equally. That's how it always should've been.

KELLY: But in a way though, you, like others, are being dragged to this. I mean, Katy Gallagher, if this all hadn't happened, we would never have known that she was ineligible at the time she was referred. And Labor keeps saying how it's got these strict vetting procedures - 

PLIBERSEK: No sorry, you say she was ineligible when she was referred. You are making a judgement that is not right, Fran. She has taken all reasonable steps. The point of the all reasonable steps - 

KELLY: I'm saying there's a case to argue that, but on the face of it, in terms of the bookwork under section 44, the dates don't add up.

PLIBERSEK: She took reasonable steps, and that's the test here. Becuase we can't control how quickly a foreign government agrees to the renunciation of the citizenship. There are some countries that never allow their citizens to renounce citizenship of that country. So we are not in control, as Australians, of the processes of foreign governments. The test, for Australians, is what steps have they taken?

KELLY: And I understand that's Labor's position, and that's Labor's position with Justine Keay - 

PLIBERSEK: Well that's the High Court's position.

KELLY: - and Susan Lamb in the Lower House. The Government, the Prime Minister, says that's not clear, it's not true, and if Labor doesn't refer these people to the High Court then the Government will.

PLIBERSEK: The Attorney-General himself said that the majority referring the minority for hostile political purposes should never happen. I hope the Prime Minister listens to his Attorney-General and understands that simply using your numbers in the House of Representatives to refer people who do not breach the rules of the Constitution is again, another step along this path where the Prime Minister's prepared to cancel democracy, call in the Australian Federal Police on his political enemies. It would be a very bad precedent to start hostile referrals based on this sort of stuff. Now just remember Fran, Barnaby Joyce took no steps to renounce his citizenship. Fiona Nash took no steps to renounce her dual citizenship. That is the difference. That is night and day between their people and our people.

KELLY: Just before I finish this issue, Indigenous Labor MPs Linda Burney and Malarndirri Macarthy have spoken of the hurt and pain of being asked to prove their citizenship. Linda Burney says it's gut-wrenching, Malarndirri Macarthy says she's felt moment of outrage. Do you think Indigenous MPs should be exempt from the process, or does that just go to show the sheer lunacy of this? Do we need a referendum on this?

PLIBERSEK: Look I think if you were drafting the Constitution today you would certainly not include these provisions in section 44. Don't forget, when this was written, there was no such thing as Australian citizenship, we were subjects of the British Empire. It just shows what an anachronism this section is. But nevertheless, the rule is there and the rule has to apply equally to all. I think the rule is terrible - 

KELLY: But if the rule is stupid, don't we need a referendum to change it?

PLIBERSEK: Yes, if you were prepared to spend tens of millions of dollars, you could have a referendum. The other way to do it is just to make sure people follow the rules, and I think it is much simpler to make sure that the handful of people who seek to be elected to the Federal Parliament just follow the rules. 

KELLY: So Linda Burney and co just have to do it?

PLIBERSEK: I think it's awful. I've spoken to Linda myself about this. Fran, this is very difficult for a lot of us whose parents fled war-torn countries, to have to go and find documentation that returns us to a time of great difficulty for our families. So across the board, there are issues being raised about people who didn't know their parents, people whose parents left when they were very young. It has been sad and traumatic, and perhaps worst of all for Linda and Malarndirri and our Indigenous MPs, having to prove that they're Australian citizens. What an insult, I get that. But the rules are as they are.

KELLY: It's a quarter to eight on Breakfast. Our guest is the Deputy Labor Leader, Tanya Plibersek. Barnaby Joyce has branded Bill Shorten "shifty" and "an utter hypocrite" for protecting Katy Gallagher. This builds on the Prime Minister's attack on Bill Shorten's integrity over the Sam Dastyari affair and his links with a Chinese billionaire. Malcolm Turnbull seems to be regaining his lead over Bill Shorten as preferred Prime Minister in the polls. Is it hitting a chord with voters, this notion that Bill Shorten lacks integrity?

PLIBERSEK: I am just gobsmacked that Barnaby Joyce would try this one on. I mean, here is the guy who admitted that he was a dual citizen and then stayed in the Cabinet, kept his high-paying job, while he knew that this issue was unclear. I mean, Barnaby Joyce changed Hansard because it suited him. He sacked his Departmental Secretary who disagreed with him. If you talk about integrity, Barnaby Joyce, I don't think is a poster-boy for integrity. And you talk about Mr Huang. If Malcolm Turnbull is so very concerned about Mr Huang, why doesn't he stop taking donations from Mr Huang in the way that we have? We wrote to Malcolm Turnbull a year ago asking for a ban on foreign donations, and he has said, until now, that he is not prepared to do that. We've asked for a register of foreign agents, he has refused, to date, to do this. It's all very well for these people to go pointing the finger, but perhaps they ought to - what's the expression? Take the log out of their own eye before they go reaching for the splinter in their brother's eye. 

KELLY: Sam Dastyari sits there, he's been stripped of his positions with the Labor Party, he sits there in the Australian Senate though. He's accused by some of basically being under foreign influence. Is that good enough? Should there be further inquiry to clear this up once and for all? To find out what Sam Dastyari did or didn't say to Mr Huang when he visited him about phones being tapped? Do we need to get this cleared up for the integrity of our Parliament?

PLIBERSEK: I think it's pretty clear that Sam did the wrong thing, and he's been stripped of his positions because of that. But Sam doesn't have any national security information. He's said himself that he's never been briefed by ASIO or our national security agencies with any information that would be useful to a foreign government, and I believe that. He is actually too junior in the scheme of things to have received the sort of security and intelligence briefings that the Leader or that I would have received over the years.

KELLY: The Lower House is debating the same-sex marriage bill. It's going to go for a long time, more than a hundred MPs want to contribute to this debate. It feels like it's all over, bar the shouting, in the sense that Tony Abbott and Peter Dutton, two leading no voters, have conceded that the fight is lost. There's been some moving speeches already and as I say, there'll be many more I think by the time this is over. We've even had a marriage proposal. Has this process, with the postal survey that you didn't support, has it turned out to be a unifying one?

PLIBERSEK: No. I don't think so. I mean look, I was delighted the day the yes vote came back, I was delighted. I was in the crowd in Sydney, really - 

KELLY: Yeah it was a great feeling across the country.

PLIBERSEK: It was a great feeling. But Fran, the main feeling was one of relief, I've got to say. There was a lot of people who feared at the last minute there'd be some unexpected Brexit-type result. And so I think that a lot of those tears were tears of relief. But I can't tell you a single person, gay and lesbian friend of mine, who said oh well now that I think about it it's all been worth it. People having to ask their parents "Mum, dad, will you vote for my relationship?" And of course most people said yes but some said no. Can you imagine how hurtful that would be to hear? And I heard that story again and again. I had teenagers actually crying in my arms, strangers crying in my arms, because they had come out and the understated way they were saying these things "my mum and dad aren't very supportive" or "my school friends aren't very supportive." You think about the world of pain that that plebiscite shoved into people's lounge rooms, that is now still being dealt with in this Parliament, because it always had to be dealt with in the Parliament. It was wrong, it was the wrong decision. And frankly, I've heard Malcolm Turnbull in recent days taking credit for the glorious win, it actually is a bit stomach-turning given the cost of this in human terms, in dollar terms as well. It was the wrong decision the whole way through. The Parliament should have legislated, I'm pleased it will now.

KELLY: Tanya Plibersek, thank you very much for joining us.

PLIBERSEK: Thank you.