‘At risk’: Government warned over dual citizenship and funding same-sex marriage survey

THE government has been warned its at risk of a High Court hiding on dual citizenship and for funding the same-sex marriage postal survey.

Deputy Prime Minister Barnaby Joyce during House of Representatives question time at Parliament House on August 17, 2017 in Canberra, Australia. Picture: Stefan Postles/Getty Images.

THE Government risks a High Court hiding on dual citizenship and funding the same-sex marriage postal survey, a key expert warned today.

And if it loses the citizenship challenge involving ministers, decisions by the disqualified front benchers might be contested by those affected — in the high Court.

According today to Professor George Williams, dean of the law school at the University of NSW, nobody could be confident what the High Court will rule on the eligibility of members of Parliament including Deputy Prime Minister Barnaby Joyce, who have dual citizenship.

Section 44 of the Constitution bars candidates who have shared nationalities and the matter will be considered in mid-October.

Today Prof Williams told the National Press Club Mr Joyce may survive the High Court challenge, “but personally I would be surprised”.

And he warned if forced out of Parliament by the court, current decisions by Mr Joyce, the Agriculture Minister, and Regional Development Minister Fiona Nash, could be contested.

Senator Fiona Nash, Deputy Leader of The Nationals, Minister for Regional Development, Minister for Local Government & Territories, Minister for Regional Communications addressing the National Press Club in Canberra. Picture: Kym Smith.

He told the NPC the wisest course for ministers involved was to refrain from decision making.

“That’s because the authority of a minister depends upon their rightful appointment as ministers,” he said.

“The Constitution does say that a person can be a minister for up to three months, a period of grace, without being in Parliament, but once that three months has ended, their authority vanishes.

“And indeed, when we are talking about disqualification.

If ministers are disqualified it will likely almost certainly be backdated to the last federal election.

“Meaning that any ministers disqualified will find themselves without apparent legal support from late last year.”

Another National senator whose case is before the court, Matt Canavan, has stood down as Resources Minister and does not take part in votes.

The potentially contestable decisions could include those about the Adani Carmichael coalmine in Queensland.

On a separate case, Prof Williams said the Government also was “facing an uphill battle on the state of the law as it currently stands” on approval of the $122 million postal ballot on same-sex marriage.

The High Court next week will begin hearing arguments as to whether the Government could spend money on the survey without the approval of Parliament.

“Remarkably this is something the Government is pursuing against the normal understandings of our system, against the clear wishes of Parliament,” said Prof Williams.

“The Government’s argument will be in part that it can rely upon other appropriation legislation and there is one Act in particular, an appropriation act that does permit an advance to the Finance Minister where there is an urgent need of

expenditure and because the expenditure was unforeseen.

“So the Government will need to show indeed if this the area is wishes to push, that the postal survey is needed because it’s unforeseen and urgent.

“Now, both of those things are hard, I think, to make out here.”