Does the Turnbull government have another constitutional issue on its hands?

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What’s the issue?

Ever since former deputy prime minister Barnaby Joyce and former cabinet minister Fiona Nash became embroiled in the dual citizenship saga (for which they got subsequently booted out of parliament after the High Court verdict), Labor has been warning any directions they issued as ministers could be challenged. The party has now obtained legal advice saying decisions the pair made as ministers could be subject to a legal challenge.

How is this possible?

Section 64 of the Constitution allows someone to be a minister for three months even if they’re not a member of parliament. In the case of both Mr Joyce and Ms Nash, this grace period expired October last year.

That means that if you haven’t been properly elected – as the High Court found in the case of Mr Joyce and Ms Nash – then you can’t be a minister (and thus make ministerial decisions). Labor is relying on this principle.

What decisions are up for challenge?

Mr Joyce was the minister for agriculture and water resources, while Ms Nash was the minister for regional communications. Labor believes more than 118 decisions they made after October last year are at risk.

Unions are checking up on decisions around Sunday penalty rates and Mr Joyce’s vote on the matter while the South Australian Labor government is checking whether any decisions Mr Joyce made regarding the Murray Darling Basin stands up.

But there are a raft of other potentials, including the controversial relocation of the pesticides agency – the APVMA – to Mr Joyce’s electorate.

How big is this?

Labor argues that’s the reason why they should have stood down before the High Court decision – and why restored Resources Minister Matt Canavan did so.

The government, of course, has played it down, suggesting the pair did not solely make most of their decisions, which were often matters for Cabinet. This is how Attorney-General George Brandis put it: “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.”

Constitutional law expert George Williams says a challenge is possible.

“That’s because there may be decisions that depend upon them (ministers) having that status and it may also be that some people are highly motivated to bring those challenges,” he told SBS News.

The decisions most vulnerable to a challenge are those made by the minister alone.

“If you don’t have the minister to make the decision they don’t have any clear visible support,” Professor Williams said.

Has this ever happened before?

Professor Williams says no, and that a potential challenge could get messy in the High Court.

“This is a tricky area – we don’t have clear precedence,” he said, adding if the decisions are challenged, the Court would have to examine the merits of each decision made.

“We’ve had people disqualified by the High Court but never as ministers, and never where they have continued to sit as ministers once it’s become clear they were under challenge,” Professor Williams said.

“It means that people could not have relied reasonably on those ministerial decisions perhaps made after those people were referred to the High Court and that’s where there may be a real vulnerability.”