What a week! High Court throws government further off-balance

By David Donaldson

Monday October 30, 2017

Minister for Rural Health Fiona Nash and Deputy Prime Minister Barnaby Joyce speak to the media during a press conference in Canberra, Sunday, May 8, 2016. Mr Turnbull today asked the Governor-General to dissolve both Houses of Parliament to call a double dissolution election for July 2, 2016. (AAP Image/Mick Tsikas) NO ARCHIVING

Last week brought more than its fair share of drama in federal politics, and it’s unlikely the consequences of Friday’s High Court decision that dual allegiance rendered five parliamentarians ineligible to be elected will be resolved any time soon.

It was the constitution that got MPs into trouble in the first place, and may now cause further issues for the government.

Over 100 decisions made by Barnaby Joyce and Fiona Nash in their ministerial capacities could be open to legal challenge, Labor believes.

Section 64 of the constitution states that “no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives”.

This means executive decisions made by the two Nationals since October 2016 may be invalid, according to legal advice provided to the opposition. Other constitutional lawyers disagree on the details, arguing a challenge would more likely be upheld from the time it became apparent each was a dual citizen, making August this year the key date.

Among the decisions made since October 2016 was Joyce’s farcical relocation of the Australian Pesticides and Veterinary Medicines Authority to his own electorate, severely impacting on the agency’s ability to conduct its work for no discernible public benefit.

During that period Joyce held a range of portfolios: agriculture, water resources and — after Matt Canavan left cabinet — northern Australia. Nash was in charge of regional communities, regional development, local government and territories.

Joyce maintains he was an MP until the High Court ruled him invalid, and was thus able to be a minister, and Attorney-General George Brandis asserts that the decisions are those of the cabinet, rather than a single minister, and thus do not present any problem. Legal arguments aside, Joyce has been criticised for the propriety of remaining in the position after discovering his status as a New Zealand citizen, especially after conceding he expected he would be ruled ineligible.


In an amusing twist of fate, Malcolm Turnbull has taken up the agriculture and water portfolios while Joyce awaits his return, so Australia’s farming industry will for the moment be overseen from Point Piper. But if former vice-president of the National Farmers Federation Angus Taylor can be minister for cities, why not?

Joyce at least is likely to re-enter the house following the byelection in his seat of New England on December 2, for which no serious challenger has emerged. It appears Fiona Nash will not be so lucky, with colleagues reportedly unwilling to give up their own prized spots to make way for a Nash comeback.

Liberal Hollie Hughes was the next name on the Coalition ticket, meaning she will probably take up the position vacated by the Nats deputy leader. Constitutional expert Anne Twomey believes that even if Hughes could be convinced to step aside, Nash would be barred from taking up the seat because the constitution states Hughes’ replacement would need to be from the same party — the Liberals.

It’s unlikely that parliamentary votes by the dismissed members would be subject to legal challenge, according to legal precedent.

And that was just Friday — last week of course also saw the Michaelia Cash leak debacle, where it emerged a staffer in the minister’s office had notified media that federal police were preparing to raid the Australian Workers’ Union — despite Cash initially denying her office had anything to do with it.

The stuff-up generated many calls for Cash to step down — not all of them from the usual suspects — so it will be interesting to see what happens if the Prime Minister opts for an end of year cabinet reshuffle, as many are predicting.

She’ll no doubt be glad the High Court stole the limelight on Friday, taking the heat off her for the moment.

And in the middle of all this, the same sex marriage debate, problems with the NBN and NDIS, and of course the Commonwealth’s response to the institutional child abuse royal commission, punctuated the uncertainty in parliament.

Then there’s the quest for an energy policy that will contain costs and carbon emissions.

Oh, and the government’s decision to reject a proposal for an Indigenous voice to parliament.

And the way things are going, none of those are going to be resolved any time soon either.

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