Labor will step up its attacks on the Turnbull government over the legality of ministerial decisions made by three senior Nationals MPs, including Deputy Prime Minister Barnaby Joyce, based on new legal advice from two eminent lawyers.
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The advice, prepared by respected barristers Matthew Collins QC and Matthew Albert, raises the possibility that any decisions the three made as ministers after October 20, 2016 could be open to challenge if the High Court finds they were invalidly elected.
The federal opposition last week demanded to know if the government had sought legal advice on whether the ministerial actions of Mr Joyce, Regional Development Minister Fiona Nash or former resources minister Matt Canavan might be at risk of challenge because of their High Court citizenship cases.
Opposition Leader Bill Shorten highlighted the fact that Mr Joyce, the Resources Minister, had not yet enacted gas export controls, and asked whether it was because of "the legal risk that the Deputy Prime Minister's ministerial actions might be challenged in the courts?"
Section 64 of the Australian Constitution states that a minister shall not hold office "for a longer period than three months unless he [or she] is or becomes a senator or a member".
Mr Joyce, Ms Nash and Mr Canavan were elected on July 2, 2016, and all three are facing the possibility the High Court could find they were invalidly elected because section 44 of the constitution forbids dual citizens from holding office.
The legal advice on the trio's status was requested by Labor and has been seen by Fairfax Media.
It states that "if a minister or former minister in the current government is found to be ineligible to sit in the Parliament by operation of section 44 of the constitution, the government will find itself in unchartered juridical territory—there are no authoritative decisions concerning the interpretation or implications of section 64 of the constitution in those circumstances".
"If the High Court finds that any or all of Joyce, Nash and Canavan are ineligible to sit in the Parliament by operation of section 44 of the constitution, our view is that any decisions they have made, purportedly in their capacity as Ministers, on and after 20 October 2016, are open to challenge," the pair state.
Examples of decisions that could be challenged include anything that had "significant financial, environmental or other repercussions by corporations or persons with interests in reversing those decisions".
The government has insisted, based on legal advice from the Solicitor-General, that it is confident the High Court will find all three have been validly elected.
Prime Minister Malcolm Turnbull told Parliament last week he was fully aware of Section 64 and that "the government is very satisfied that the ministers referred to are fully entitled to serve as ministers, just as they are entitled to serve in this parliament".
The High Court hearing will be heard in Canberra from October 10-12.
