Prime Minister Malcolm Turnbull has expressed confidence the High Court will rule in his government's favour on dual citizenship of MPs, but he may be in for a shock.
Prime Minister Malcolm Turnbull has expressed confidence the High Court will rule in his government's favour on dual citizenship of MPs, but he may be in for a shock. Dean Lewins

Govt risking a hiding in High Court

THE Turnbull government risks a High Court hiding on dual citizenship and funding the same-sex marriage postal survey, a expert on the Constitution has warned.

And if it loses the citizenship challenge involving ministers, decisions by the disqualified frontbenchers might be contested by those affected - in the High Court.

Professor George Williams, dean of the law school at the University of NSW, says nobody can be confident what the High Court will decide about the eligibility of members of Parliament who have dual citizenship, including Deputy Prime Minister Barnaby Joyce.

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

Prof Williams told the National Press Club Mr Joyce might 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.

He told the National Press Club the wisest course for such ministers was 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 almost certainly be from the last federal election.

"Meaning that any ministers disqualified will find themselves without apparent legal support from late last year,” he said.

Another Nationals senator whose case is before the court, Matt Canavan, has stepped down as Resources Minister and does not take part in votes. The potentially contestable decisions could include those about the Adani Carmichael coal mine in Queensland.

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 will begin hearing arguments next week on whether the government can 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,” Prof Williams said.

"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,” Prof Williams said.

"So the government will need to show indeed if this the area it 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.”

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