On 27 October 2017, the High Court ruled on the validity of the election of a number of Federal politicians to the Senate and the House of Representatives in the ‘Citizenship case’.

The High Court found a number of those politicians to be ineligible for election, including two current Ministers (Mr Barnaby Joyce and Ms Fiona Nash). This article explores some of the potential implications from a legal perspective of the decision for Mr Joyce and Ms Nash.

Background

Mr Joyce was originally sworn in as Minister for Agriculture in the Abbott Government on 18 September 2013, and Ms Nash was sworn in on the same day as Assistant Minister for Health, and subsequently as Minister for Regional Communications. They both held those Ministerial positions in the Turnbull Government. Mr Joyce has acted as Prime Minister on a number of occasions. We will now look at the potential effect of the High Court decision on Mr Joyce from a legal perspective. This analysis applies equally to Ms Nash.

Holding office as a Minister

Under section 64 of the Constitution, a Minister of State shall not ‘hold office for a longer period than three months unless he becomes a Senator or a Member of the House of Representatives’. The implication is that a person who is neither a Senator nor a MP may be appointed as a Minister – but will cease to be a Minister three months after that appointment is made. On this analysis, Mr Joyce would have ceased to be a Minister on or about 18 December 2013.^[1]

Section 19 of the Acts Interpretation Act 1901 (AIA) provides, in essence, that in any Act, ‘Minister’ means the Minister administering the provision of the Act in question.

Under the Administrative Arrangements Orders (AAOs) of 1 September 2016, Mr Joyce was given responsibility for administering more than 90 Commonwealth Acts, ranging from the Biosecurity Act 2016 to the Pig Industry Act 2001.

As such, it is likely that Mr Joyce has done a number of acts under this legislation after 18 December 2013.

Among other things, it is likely that he will have delegated powers to make decisions; exercised powers or functions under the legislation; and appointed persons to statutory offices under legislation.

If the above analysis of the implications of section 64 of the Constitution is correct, and Mr Joyce ceased to be a Minister on or about 18 December 2013, what are the legal consequences ?

De facto officer doctrine

In the past, the Commonwealth has sought to rely on the de facto officer doctrine. Under that principle, it was argued, where an office existed in law, and a person is purportedly acting in that office and performs acts within the scope of that office, then provided the person has the reputation of being an officer de jure, the person’s acts are valid despite the defect in his or her title to the office. ^[2]

The decision of the Full Federal Court of Australia in Kutlu v Director of Professional Services Review (2011) 197 FCR 177; [2011] FCAFC 94 (Kutlu) largely laid to rest the ‘ancient ghost’ ^[3] of the de facto officer doctrine.

Section 33AB of the Acts Interpretation Act

The Commonwealth sought to raise the ghost of the doctrine by enacting section 33AB of the AIA, which, so far as is relevant, reads as follows:

33AB Validity of things done under appointments under Acts

Anything done by or in relation to a person purporting to act under an appointment (including an acting appointment) under an Act is not invalid merely because:

(b) for any appointment—there was a defect or irregularity in connection with the appointment.

However, it is possible section 33AB will not be of assistance.

First, section 33AB applies to an ‘appointment under an Act’. Given the High Court's decision, as voted above, on one view, Mr Joyce was appointed as a Minister under section 64 of the Constitution. While the AIA does not define what is meant by ‘an Act’, it should be read as confined to Acts of the Commonwealth Parliament. The Constitution is an Act of the British Parliament.

Secondly, there is the additional issue of a Commonwealth Act (ie the AIA) purporting to govern the consequences of appointments or defects in appointments made under the Constitution, which is the legislation under which the AIA was itself made. Presumably the spring cannot rise higher than its source - even assuming that is what section 33AB is to be construed as being intended to achieve.

Potential downstream implications

A variety of potential legal implications arise from the High Court's decision and the fact that Mr Joyce has held the office of Minister after 18 December 2013 when arguably this was not permitted by section 64 of the Constitution.

For example, Mr Joyce will have purportedly appointed people to offices under the legislation he administered. Those persons may be able to rely on section 33AB of the AIA to validate their appointments – assuming section 33AB operates as intended. Whether it will do so is unclear.

Subsection 2(2) of the AIA provides that’ the application of …a provision of this Act …is subject to a contrary intention’.

Accordingly, the question of whether an appointment by Mr Joyce under one of the Acts he purported to administer is validated by section 33AB will need to be determined by ascertaining whether a ‘contrary intention’ is to be found within that Act. It should be noted that in Kutlu, Flick J had no difficulty in concluding that the relevant statue (the Health Insurance Act 1973) left ‘no room for the continued operation of the de facto officers doctrine…The wish and intention of the legislature, it is concluded, cannot so easily be put to one side’.

Similarly, section 33AB may or may not validate the acts of delegates purportedly appointed by Mr Joyce to exercise powers on his behalf (although there may not be an issue with the acts of delegates appointed during the three months to 18 December 2013.

There is also the question of payments made on the authority of Mr Joyce as Minister, or on the authority of persons appointed to offices, or delegated powers by Mr Joyce after 18 December 2013. Section 83 of the Constitution requires that ‘No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.’ To the extent that Mr Joyce or Mr Joyce’s appointees or delegees have authorised payments of Commonwealth money on the basis of their holding an office or a delegation, consideration will need to be given to whether those payments were made in breach of section 83 of the Constitution.

Under the principle in Auckland Harbour Board v The King [1924] AC 318, it is generally accepted that an amount paid by the Commonwealth out of consolidated revenue without a valid appropriation (eg if a condition on which the money was appropriated by legislation had not been met) may be recovered by the Commonwealth (although, of course, the Finance Minister has the power to write off debts under section 63 of the Public Governance, Performance and Accountability Act 2013).

One possible option would be for remedial legislation to be introduced to address some of the potential consequences of the High Court’s decision in terms of acts done by Mr Joyce and Ms Nash as ministers. Other potential options are likely to be canvassed by lawyers intensively both publicly and privately in coming days.

^[1] There is a question whether, as Mr Joyce and Ms Nash were subsequently sworn in as Ministers, those subsequent appointments also had effect for three months, or were simply of no effect. We will not deal with that issue here.

^[2] See Enid Campbell, De Facto Officers (1994) 2 Australian Journal of Administrative Law 5.

^[3] As Flick J described it - ‘Whatever its precise origins, the chains of this ancient ghost continue to be jangled whenever it seems convenient to do so.’