More than 100 decisions could face a legal challenge because Barnaby Joyce and Fiona Nash stayed on as ministers

Barnaby Joyce and Fiona Nash. Photo: Stefan Postles/Getty Images

The decision by the Turnbull governnment to allow former Nationals leader and deputy prime minister Barnaby Joyce continue as a minister after it emerged that he was a dual national could leave dozens decisions he made subject to legal challenge.

On Friday, the High Court ruled that Joyce was ineligible to stand as a candidate at last year’s federal election because he was a dual Australian-New Zealand citizen, therefore breaching the constitution.

The same legal problem also applies to his colleague, former Nationals deputy leader and minister senator Fiona Nash, who was the Minister for Local Government and Territories, Regional Development, and Regional Communications.

Joyce was Minister for Agriculture and Water Resources, and after Queensland Nationals senator Matt Canavan resigned in July as Minister for Resources and Northern Australia over his own dual citizen concerns – he was subsequently cleared by the High Court – Joyce took over those roles too.

Fairfax Media reports that Section 64 of the Constitution, combined with the High Court decision means that Joyce and Nash ceased to be ministers three months after they were sworn in as ministers last year, putting a year’s worth of decisions under a cloud.

Section 64 says a minister must be a member of Parliament. It would be the first time the High Court considered matters related to that part of the Constitution.

While Joyce is hoping to regain his seat in a by-election in December, the Labor opposition has been seeking legal advice on the decisions made by the pair while they were effectively ineligible to serve as a minister.

Legal experts have told Labor that the likelihood that decisions made between October 20, 2016, and last Friday “will be challenged is high”, but the Opposition says it’s unlikely to launch any challenge.

The cost of a High Court challenge also means only organisations willing to risk the possibility of losing and having to pay the Government’s costs are likely to launch legal action.

The decisions could range from water rights to the NBN and mobile blackspot program in regional areas and decentralisation decisions.

Decisions made after the pair realised they were potentially dual-citizens are particularly vulnerable to challenge, one Constitutional expert says.

Attorney-General George Brandis​ believes it’s not a problem, saying that because most decisions were made by cabinet based on recommendations from the minister “there are no legal consequences here at all”.

Fairfax has more here.

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