BARNABY Joyce has rejected accusations that up to 118 executive government decisions, made while a citizenship cloud was hanging over his head in recent weeks, may be legally invalid.
The Nationals leader says Labor’s claim that the decisions could now be challenged by financially motivated ‘vested interests’ following his disqualification last week, like biosecurity and quarantine matters, is only aimed at political point-scoring in Canberra, at the expense of regional Australians and the farm sector.
Mr Joyce said any moves to challenge the legal validity of such decisions under his Agriculture and Water Resources portfolio, and those of former Senator and cabinet minister Fiona Nash as flagged by the opposition, “clearly shows how vindictive the Labor party are against regional Australia”.
“They’re talking about decisions like moving the Australian Pesticides and Veterinary Medicines Authority from Canberra to Armidale,” he said.
“Obviously they’re going to rewind that and re-centralise major government departments back into major capital cities.
“The Building Better Regions Fund - decisions to get vital infrastructure out into regional areas - they want to re-wind that.
“Everything they want to re-wind is going to hurt regional Australia.
“They don’t propose on just leaving it where it is to help regional Australia; they only want to threaten to re-wind it, to score a political point.
“This goes to show their complete lack of vision for regional Australia and their complete fascination for political parlour games because they think they look ‘oh so cool’ in Canberra when they say things like this.”
Mr Joyce suffered an immediate attack from the federal Labor opposition after being disqualified from federal parliament by the High Court last week, due to his dual NZ citizenship issue which was revealed in mid-August.
Labor has now identified 118 government decisions they believe could have been made outside of constitutional rules while Mr Joyce remained in cabinet, during the citizenship saga.
Decisions made by former Senator Ms Nash as the Regional Development and Regional Communications Minister - who also disqualified by the High Court for breaching Section 44 of the constitution but retained her cabinet post like Mr Joyce during the saga, instead of stepping down – have also been heavily questioned in Labor’s attack.
Senior officials from the Agriculture and Water Resources Department, of which Prime Minister Malcolm Turnbull is the acting minister while Mr Joyce faces a by-election in New England, have taken steps to clarify the legal position of such decisions.
While they don’t expect many of the 118 are likely to meet the necessary criteria to face any challenges, they’re not taking any chances.
Votes on the floor of parliament are not expected to be challenged or have any legal standing for a claim – but appointments made by the two ministers could come under some scrutiny.
Mr Joyce said another aspect of the debate was that many of the decisions being raised by Labor for potential legal challenge were ones made by federal cabinet or not of his making.
“So they can’t re-wind them because it’s not my authority; it’s the cabinet’s authority,” he said.
“And even the APVMA itself was an order made by finance Minister Mathias Cormann - not by my - so it can’t happen.
“But it just goes to show the Labor party are willing to be vindictive and to win a little puerile game in Canberra they’re willing to hurt regional Australia.
“And it also shows with their attitude towards the Regional Investment Corporation.
“They want to shut down our regional investment bank; take away our decentralisation program; take money away from our dams and waters programs; and they’ve got no money on the table for the inland rail.
“And then they’ve apparently got this group called Country Labor – what the hell did they do?
“They had a meeting and I’m sure that’s better than having the APVMA in Armidale, the Regional Investment Corporation, the inland rail, decentralisation programs, mobile phone towers, or the building better regions programs.
“A meeting of people who call themselves Country Labor - that’s a far better idea isn’t it?
“They get to talk more about how they can help the basket weavers of Annandale get more things for the basket weavers in Annandale.”
Tony Burke on the attack
Former Labor Agriculture Minister Tony Burke has led the criticism of the embattled Nationals over the potential legal challenges but he has ruled out votes on the floor of parliament, which Labor has agreed to.
However, he indicated Mr Joyce’s decisions on areas of ministerial responsibility like biosecurity and quarantine are now in the firing line.
“It’s one thing to be reckless and to not have checked whether or not you’re a citizen, but from the moment…that Barnaby Joyce realised he was a NZ citizen, if he had done what Matt Canavan did, which was to step aside while waiting for the High Court decision, we’d be in a completely different situation because there wouldn't be this legal question over what executive decisions had been made over the last two and a half months,” he said.
“Now the fact that we pointed that out doesn't mean that we’re the ones doing the challenging because a whole lot of the ordinary business of government will be decisions that we agree with.
“I used to be minister for agriculture - I know when you're in charge of quarantine and bio-security you make decisions that have a big financial impact on importers and exporters no matter which way you go.
“And there will be vested interests that will be combing through the decisions he has made because now they may well be able to make money out of the challenge.”
Mr Burke said Australia's quarantine service, importers and exporters “make or lose money” depending on decisions made as a minister.
He said there would be a series of decisions there with “vested interests, now combing through, and there being a whole lot of legal doubt over those decisions on the simple basis that Barnaby Joyce didn't do what Matt Canavan did”.
“Barnaby Joyce and Malcolm Turnbull decided - oh, no, nothing to see here, let's just ignore the last 25 years of how the High Court's ruled on this and pretend that it's all going to be different this time,” he said.
“I think there's a reason why they never revealed the Solicitor-General's advice - I don't believe for a minute it was as strong as they were claiming.”
However, Mr Burke denied Labor was “egging others on” to legally challenge such decisions.
“The entire answer to that question is no,” he said.
“I’m not encouraging or discouraging the challenges.
“What I did encourage, quite actively, was for Barnaby Joyce to not put Australia in this position - for Barnaby Joyce and Fiona Nash to do exactly what Matt Canavan did - then there would be no decisions to be challenged at this point in time because they would have taken the responsible, precautionary method.
“What they have done instead is just take a really dumb risk with Australian government.
“It’s a big deal being a member of the Australian cabinet and if you don’t honestly believe you are legally meant to be there then you shouldn't go ahead and do it anyway.
“But Barnaby has acknowledged that’s exactly what he has done in the last two and a half months.”
Brandis: court will not go behind a vote of parliament
Attorney General George Brandis said the legal possibility of testing whether votes in the parliament on various items of legislation were valid or not was a “rubbish” point and “no issue” because “the court will not go behind a vote of the parliament”.
He also said he didn’t think there were many decisions of Mr Joyce, as opposed to cabinet decisions, that could be effected.
“I’m not for a moment saying that a consequence would follow in any event but in any event we are having a close look at that right at the moment,” he said.
“But, for example, most decisions that ministers make are in fact made by the cabinet on the recommendation of ministers.
“Appointments are made by the Governor-General or the Federal Executive Council on the recommendation of ministers, so I think you will find that there is no legal consequences here at all.
“I doubt that there are many if any decisions that would be relevant in any event because by the cabinet are decisions of the cabinet, decisions….or appointments for example are in form and technically appointments of the Federal Executive Council.
“Recommendations by ministers are not decisions that are legally reviewable so I do not think that we will see that there is a problem.
“Of course the Labor Party will be trying to play games because they do not have an interest in a steady government for the country.”
Opposition deputy-leader Tanya Plibersek said there had been some “very narrow” votes on the floor of the House of Representatives in recent times, including a vote to reverse penalty rate cuts.
“We lost by one vote - Barnaby Joyce's vote,” she said.
“We sought to introduce a banking Royal Commission, to give some justice to people who've been the victims of bad behaviour by the banks, again lost that by just one vote - Barnaby Joyce's vote.”
Asked what ALP would do in regards to the legal matters in question, Ms Plibersek said “we're going to look at all of our options”.
“But I can tell you that we are very concerned about the fact that Barnaby Joyce has been voting at a time when he shouldn't have even been in the federal parliament and we've narrowly lost votes because of that and we've seen some very serious consequences to the fact that he hasn't been able to make proper ministerial decisions,” she said.
“We're not actively encouraging anyone - but I can tell you some of these decisions are likely to have left people aggrieved and if they want to pursue the government on some of them I don't doubt they will.
“There's all sorts of grants and appointments made by these ministers, decisions made under the Water Act,
“Barnaby Joyce had significant power to determine claims for payments to Water Access Entitlement holders.
“We've seen elements of the NBN roll-out, including the Sky Muster program, made by Fiona Nash, and elements of the Mobile Black Spots program, grants under the Building Better Regions Fund.
“There would be a range of areas where people would be considering whether they had received fair treatment from these ministers.
“(There is) well over 100 announcements and legislative instruments.
“No doubt there'll be some people who'll be wondering whether they were treated fairly and whether decisions were made properly by Fiona Nash and Barnaby Joyce when they weren't properly elected to the Parliament.”
Ms Plibersek also queried the strength of the Attorney-General’s view that most of the ministerial decisions made were signed off by cabinet.
“Are we really taking George Brandis' word for this?” she said.
“I mean, this is the government that told us that the High Court would find all these people were properly elected.
“The Prime Minister saying ‘and the High Court will so hold’, that he was absolutely certain that these people were in no trouble.
“The Attorney-General banging on about how the Solicitor-General's advice was absolutely clear that these people were absolutely entitled to be there.
“I think if there's one thing that we can all draw from this sorry saga is that you would not trust the legal pronouncements of the Prime Minister or the Attorney-General on any issue of importance.”