Three reasons why the decisions of Joyce and Nash may be difficult to challenge

File 20171030 17711 1p8hzgp.jpg?ixlib=rb 1.1
Can decisions made by former deputy prime minister Barnaby Joyce while he was invalidly in parliament be challenged?
AAP/Mick Tsikas

Anne Twomey, University of Sydney

Now that Barnaby Joyce, Fiona Nash and three other senators have been declared invalidly elected, questions are being asked about whether close parliamentary votes still stand and decisions made by the disqualified ministers can be challenged.

As the issue has not arisen in Australia before, there is no direct judicial authority on the question. We can, however, draw some reasonable conclusions based on how the courts have dealt with analogous issues in the past.

Parliamentary votes

Over the years, quite a few MPs have been disqualified at both the Commonwealth and state levels, but no-one has ever challenged the validity of a law passed in reliance on the vote of a disqualified member.

The only Australian authority is the 1907 case of Vardon v O’Loghlin. In this case, Chief Justice Griffith and Justices Barton and Higgins stated that even though a senator was disqualified at the time of his election, “the proceedings of the Senate as a House of Parliament are not invalidated by the presence of a senator without title”.

Justice Isaacs added that while Vardon had not been validly elected, the “validity of his public acts as a senator prior to the declaration is, of course, unaffected”.

Although neither statement directly addressed the effectiveness of his vote in the house, the case has been taken as sufficient authority to suggest that past votes will stand, even though disqualified senators or MPs participated in them.

This view is supported by the general principle that a court will not interfere in the internal proceedings of parliament. Although courts will enforce “manner and form” requirements for a special majority to pass a particular type of bill, the courts will not look behind the parliamentary record of the votes, even when those records may be inaccurate.

If, therefore, anyone challenged the validity of a law on the basis that it was not passed by a majority of qualified MPs, it is most unlikely that a court would be prepared to hear the case and strike down the law.

Ministerial decisions

Section 64 of the Constitution provides that “no minister of state shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives”.

During the entirety of Joyce’s ministerial career – starting on September 18, 2013 – he was not validly a member of either house. Similarly, Nash was not validly a senator at any time during which she was assistant minister from 2013 and minister from 2015.

When each was first sworn in as a minister, and sworn in again after the July 2016 election, the three-month period would have run. But, after that, both Joyce and Nash would have been ministers invalidly.

Further reading: If High Court decides against ministers with dual citizenship, could their decisions in office be challenged?

Does this mean that the decisions they made during this period could be challenged? There are three important factors at play.


First, a person would have to have legal standing to bring a challenge. This means they would have to have a special interest in the decision, above that of the rest of the community, which goes beyond a mere intellectual or emotional interest in the matter.

For example, if the property or financial interests of a person are affected by a decision, then they may have standing.

There is uncertainty as to whether simply being an MP is enough to gain standing to challenge government decisions. This issue was raised in the case concerning the postal survey on same-sex marriage, but the High Court did not need to resolve it because the challenge failed anyway.

So, there is doubt as to whether opposition MPs would have the standing to challenge any decisions made by Nash or Joyce in their ministerial capacities.

The source of the decision-making power

Second, the decision would have to be one made by Joyce or Nash in accordance with a power conferred upon them as ministers by statute or another legal source.

The waters have been muddied by statements concerning the fact that ministerial decisions are often approved by cabinet.

The cabinet is a policymaking body. It does not have the power to give legal effect to its decisions. This is done through other bodies or persons. A decision to enact legislation is given effect by parliament. Many other decisions concerning appointments, the compulsory acquisition of property, and the making of regulations are given effect by the governor-general through the Federal Executive Council.

It is only those decisions made directly by Joyce or Nash on the basis that they were exercising a power conferred upon them in their capacity as a minister that could be challenged.

Timing and the de facto officer doctrine

The third issue concerns timing and the possible application of the “de facto officer” doctrine.

This is a common law doctrine that protects the validity of decisions made by a person who is clothed with the authority of an office, but is later found not to have been validly appointed to it.

If that person acts under the “colour” of the office, there is public acceptance of that authority and the government holds out that person as having the authority to exercise that power, then the doctrine is likely to give a measure of protection to exercises of that power, if they were otherwise validly made.

Further reading: The High Court sticks to the letter of the law on the ‘citizenship seven’

The doctrine is directed at protecting those who rely on the decisions in good faith, rather than protecting the decision-maker. The policy behind it is to avoid the chaos that might ensue if decisions are invalidated due to a defect in the appointment of the decision-maker.

For example, when the governor-general of the Solomon Islands was held to have been invalidly appointed as he did not meet the required qualifications, the High Court of the Solomon Islands relied on the de facto officer doctrine to uphold his actions, including the dissolution of parliament and the appointment of ministers.

In 1938, Owen Dixon wrote that there “are questions outstanding as to the limits of this principle or the conditions controlling its operation”. That remains true today. One of those questions is whether the doctrine operates when the disqualification of the office-holder is a result of a breach of the Constitution.

In 2000, the High Court unanimously held in Bond v The Queen that a question arising under the Constitution as to the powers exercisable by an officer of the Commonwealth “cannot be resolved by ignoring the alleged want of power on some basis of colourable or ostensible authority”.

The doctrine also ceases to apply when the mantle of authority is removed by the public expression of doubt as to the validity of the office of the decision-maker.

Accordingly, the decisions made by Joyce and Nash that would be most vulnerable to challenge are those made after they were referred to the Court of Disputed Returns, due to doubts as to the validity of their election to parliament. One would expect, however, that they were sufficiently prudent not to make contentious decisions during that period.

Where does this leave us?

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. But this would depend upon the action being brought by individuals or corporations that have a sufficient interest to attract standing and whether the decision was actually made by the disqualified minister (as opposed to another body, such as the Federal Executive Council).

It would also depend on the extent to which the de facto officers doctrine applied.

The ConversationIt may be the case that no decisions fall into this category, despite the feverish speculation. We can only wait and see.

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article was originally published on The Conversation. Read the original article.


Australia: Tony Abbott Promises to Shirtfront Vladimir Putin

One does have to wonder just how serious Tony Abbott’s comments can be taken, especially this one about ‘shirtfronting’ Russia’s Vladimir Putin. Is this a core promise or just spruiking for the camera – will there be some video record of the shirtfronting, because without it I would find it difficult to believe it has happened.

El Salvador: Six Evangelicals Murdered

Over the years this Blog has featured links to stories relating to Christian persecution around the world. One country that has featured a great deal has been El Salvador. The article linked to below provides something of an insight into just how difficult it can be to be a Christian in that country.

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Cricket: Ashes Report – 20 July 2013

The first two days of the Ashes second test at Lords are over and it would appear that England are on track for a 5 nil whitewash of the series. Australia are terrible – poor bowling at times and abominable batting. It is difficult to see how Australia can compete in this Ashes series, let alone this test match.

Nigeria: Plan to Grant Boko Haram Amnesty

The link below is to an article that reports on plans in Nigeria to grant Boko Haram amnesty, which I have to say I find difficult to accept.

For more visit:

Plinky Prompt: What I’ll Remember Most About 2011

View from the Grand High Tops

This is a difficult question to answer – because there has not really been any ‘big’ events or happenings in my life this year (that I can remember anyway). I must lead a really boring life – which is probably true.

I guess the thing I will most remember, for the next little while anyway, will be the last month of the year. I have been on vacation from work for the entire month of December and have had a great time travelling around the state – well northern NSW anyhow. It has been just the break I have needed and will perhaps save my sanity for a bit.

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Australia: New South Wales – Barrington Tops Warning

Until such time as fugitive Malcolm Naden is captured, the Barrington Tops and surrounding regions should be considered potentially dangerous, given how desperate his situation has become. Having said that, realistically, he does not appear close to being captured at this stage. Certainly the police are closer than they have been for some time, but he is still successively avoiding capture. If he chooses to go to ground in the mountains following two close encounters with police in a fortnight, it is difficult to see how police will be able to capture him anytime soon.

Islamic Mob Burns Down Church in Egypt

‘Kill all the Christians,’ local imam tells villagers.

CAIRO, March 8 (CDN) — A Muslim mob in a village south of Cairo last weekend attacked a church building and burned it down, almost killing the parish priest after an imam issued a call to “Kill all the Christians,”  according to local sources.

The attack started on Friday evening (March 4) in the village of Sool, located in the city of Helwan 35 kilometers (22 miles) from Cairo, and lasted through most of Saturday. A local imam, Sheik Ahmed Abu Al-Dahab, issued the call during Friday afternoon prayers, telling area Muslims to kill the Christians because they had “no right” to live in the village. The attack started several hours later.

The Rev. Hoshea Abd Al-Missieh, a parish priest who narrowly escaped death in the fire, said the clamor of the church being torn apart sounded like “hatred.”

“I was in the attack, but I can’t describe it,” he said. “The sound of the church being destroyed that I heard – I can’t describe it, how horrible it was.”

According to villagers, the mob broke into the Church of the Two Martyrs St. George and St. Mina, and as they chanted “Allahu Akbar [God is greater],” looted it, demolished the walls with sledgehammers and set a fire that burned itself out the next morning. Looters removed anything valuable, including several containers holding the remains of venerated Copts – most of whom were killed in other waves of persecution – then stomped and kicked the containers like soccer balls, witnesses said.

After the fire went out, the mob tore down what little remained of the church structure. The group of Muslims then held prayers at the site and began collecting money to build a mosque where the church building once stood, said the assistant bishop of Giza the Rev. Balamoun Youaqeem.

“They destroyed the church completely,” he said. “All that was left is a few columns and things like that. As a building, it’s all gone.”

During the fire, Al-Missieh was trapped in a house near the church building that was filling up with smoke. He faced a difficult dilemma – choke or burn to death in the house, or face an angry mob of thousands screaming for blood.

“When the smoke was too much, I told myself, ‘I am dying anyway,’ so I decided I would go out and whatever happened, happened,” Al-Missieh said.

When he went outside, a man with a rifle told the priest to follow him. At first Al-Missieh was reluctant, he said, but the man fired off two rounds from the rifle and told the crowd to step away.

“No one will touch this man, he is with me,” the priest remembered the man yelling at the mob. Al-Missieh was taken to a house where he met three other workers who were at the church when it was attacked. The men all relayed stories similar to the priest’s.

Friday’s attack was another in a long list of disproportionate responses in Egypt to a rumor of an affair between a Muslim and a Copt. Earlier this month, Sool villagers accused a Muslim woman in her 30s and a Coptic man in his 40s, both of them married, of being involved with each other. On Wednesday (March 2) a village council of Coptic and Muslim leaders convened and agreed that the man should leave the village in order to avoid sectarian violence.

The next day, the woman’s cousin killed the woman’s father in a fight about the honor of the family. The same day, the cousin died of wounds he sustained in the fight. By Friday, Al-Dahab, the local imam, had blamed the entire incident on Christians in the village and called on all Muslims in Sool to kill them.

Because of the attack, Copts in Sool fled to adjacent villages. The women who remained in the village are now being sexually assaulted, according to Youaqeem, who added that he is receiving phone calls from women in the village begging for help. Those reports have not yet been independently confirmed.

“Everybody tried to find a way to get out,” Youaqeem said.

Groups of Muslims have set up blockades around Sool, declaring they intend to turn it into an “Islamic village,” Youaqeem said.

On Sunday (March 6), roughly 2,000 people gathered outside the Radio and Television Building in Cairo to protest the attack and what Copts see as a long-standing government refusal to address or even acknowledge the persecution of Christians in Egypt. Protestors also accused the government of not sending enough troops to the village to control the situation. Holding up crosses and signs, the protestors shouted the name of Jesus and chanted, “We need our church.”

Soldiers armed with AK-47s with fixed-sheathed bayonets held the crowd back from the building as several priests took turns addressing the crowd. When the Giza parish priest, Bishop Anba Theodosius, said the army had pledged to rebuild the church but would not give a written guarantee of the promise, the crowd became enraged and pushed through the line of soldiers.

No one was injured in the push. More protests about the attack continued Tuesday in Cairo.

Youaqeem said the attack has devastated and enraged the Coptic community, but he sees hope.

“As they say – ‘All things work to the good of those who love the Lord,’” he said.

Report from Compass Direct News

Plinky Prompt: Describe Your Favorite Place to Drive

Vintage Car

I love driving about the place, discovering new places and enjoying the journey. I love to travel and exploring the countryside. With that said, I obviously enjoy most trips and it is therefore difficult to pick a favorite place to drive.

One of the trips I do like to take on a regular basis is up the Pacific Highway to Coffs Harbour here in Australia. It’s about a 4 hour run from here – so not too taxing.

It’s just a nice little break visiting a few wild spots along the way, picking up a few things at roadside fresh produce stalls, etc.

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