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Nov 9, 2017

Could historical ministerial decisions be overturned?

Legal experts explain whether or not it would be possible to question decisions of former ministers.

Sally Whyte — Political reporter

Sally Whyte

Political reporter

The number of current MPs and senators with questions around their status as dual citizens continues to rise, with independent Senator Jacqui Lambie revealing her father was born in Scotland. Since the original Citizenship Seven were sent to the High Court, Senator Stephen Parry has resigned, and Liberal MP John Alexander is looking into his family history. Then there’s the Labor MPs and senators who are also facing scrutiny about the exact dates they renounced their dual citizenship. 

So are dual citizens a particular affliction of the 45th parliament? Barnaby Joyce was first elected in 2005 — he’d been around for 12 years before realising that he was a Kiwi and therefore not eligible to sit in parliament. It is unlikely that Joyce and his dual-citizen colleagues are the first ones to read over the Australian Electoral Commission declaration, assume they are fine, and sign on the dotted line and go on to be elected.

Are former ministers squirming uncomfortably in their seats watching as this plays out? What happens then, to former MPs and senators who were dual citizens when they were in parliament but have since retired from the halls of power? Basically nothing, it turns out.

Questions have been asked about whether decisions made by Joyce and Fiona Nash, as ministers, could be challenged in the High Court. Constitutional expert Anne Twomey has written for The Conversation about the hurdles that would face potential legal challenges to Nash and Joyce on this question:

“It is most unlikely that any challenge to a law on the basis of votes in parliament by disqualified members would succeed in the courts.

“There is a greater risk that a challenge to a ministerial decision, made by a disqualified MP when he or she did not validly hold a ministerial office, could be successfully challenged.”

So if someone were considering leveraging the family tree of a former minister who made decisions they didn’t like, they are very unlikely to be successful.

Firstly, because decisions made by votes in parliament are unlikely to be interfered with by the court. So we are left with decisions only made by a minister.

Decisions made by Joyce and Nash before being referred to the High Court would be subject to the “de facto officer” doctrine, Twomey says, which means that the validity of decisions made by someone in a position of authority is protected, even if they are later found not to have validly held that authority. This would also apply to any former ministers who were dual citizens.

Twomey told Crikeydecisions are protected to protect the people who rely on those decisions, not those who make the decisions”.

“The courts are going to be very reluctant to unpick decisions that people have relied upon in good faith.”


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11 thoughts on “Could historical ministerial decisions be overturned?

  1. Roger Clifton

    The ministers are appointed by the Prime Minister, so their authority to decide anything is delegated. Surely the responsibility for the decisions remains the Prime Minister’s.

  2. David Lockett

    What the Hell!
    I am an Australian citizen with dual citizenship and have now been declared a second class citizen who has limited rights in Australia. Well, possibly all of we second-class citizens should just pack up and go home, and leave the full blood Aussies to run the country. Oh! and do remember most of you, that depending on your age, your parents and grandparents were quite possibly born British citizens. So as the ‘Committee For Public Safety’ continues its deliberations, you also may get your turn to ride in the tumbril.

    1. Robert Beverley

      I’m a dual citizen. My wife is a dual citizen. My children are (probably) tri citizens. This whole fiasco has nothing to do with being second class citizens and everything to do with politicians failing to get their respective shit together.

    2. Graeski

      Given that the instrument of your so-called ‘second-class’ citizenship is the Australian constitution, which was written around 1901, you’ve been a second-class citizen all along – you just haven’t been aware of it.

      Don’t feel too insulted, though. People whose forebears have been here for over forty thousand years weren’t deemed to be citizens of Australia at all until 1968, and arguably have yet to make it to second-class citizenship, even today.

      1. Woopwoop

        You may be right about the second class citizenship, but not the rest of that paragraph. It wasn’t even 1968, it was 1967.

    3. zut alors

      You have not been declared a second class citizen, you are merely ineligible to run for Parliament. If you rescind the dual citizenship you are eligible.

      And don’t think you’ve been marginalised purely through duality of citizenship, perhaps you also are in one of these ineligible groups:
      44. Any person who –

      (i.) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power: or
      (ii.) Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or
      (iii.) Is an undischarged bankrupt or insolvent: or
      (iv.) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or
      (v.) Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons:
      shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

      But sub-section iv. does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.[1]

  3. Darren

    That is all very well and I do not argue with it, but the one aspect that no-one seems to be exploring is the “punishment for the crime”. All of these people have made a declaration that was false. They sat in parliament or the senate when not eligible. In Mr Joyce’s case it seems to be no consequence at all other than the slight bother of a by-election that is seems sure to win. Where is the consequence? Surely this has a legal ramification beyond simply being “fired”. Why is no media organisation chasing this? It makes no sense at all.

  4. blenda

    Every argument put forward reinforces the fact that First Nation people were marginalised, murdered, and used as slaves by people of European heritage. Their land has been raped and pillaged. Now voters have been marginalised by liars. I want this to end now and I want the true owners of this great land to be given back their legal jurisdiction over this great land and be able to decide where these invaders can build their settlements. Oh humble ngarrwan I pray with you.

  5. klewso

    How can they be deemed fit and proper persons to oversee billion dollar ministries – with those responsibilities to the common wealth (as opposed to governing for donors and mates) – when they can’t do the basics, such as check their filial lines in respect to legitimacy to run for parliament, and, if need be, to renounce that which precludes that pursuit?

  6. Marjorie Carless

    At this point in time this is not about changing the constitution but adhering to it. People who have political aspirations should at least check the job description and follow the legal guidelines. If they can’t do that then they are definitely not suitable to help govern the country.

  7. Michael Zarb

    Are there any ramifications regarding parliamentary pensions?

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