After three days of hearings, confidence is waning that government MPs will survive the challenge to their election

'All eyes on the high court': why the Coalition is preparing for the worst

The Turnbull government is preparing for battle on two fronts, as it moves to settle its energy policy debate while preparing for a potential worst-case scenario citizenship ruling from the high court, which could see Barnaby Joyce marched from the parliament.

Both the Coalition and Labor are primed for another fight over the nation’s energy future, with the government’s energy plan expected to be finalised by cabinet on Monday, before heading to the party room the next day.



But, after three days of hearings in the high court on the eligibility of seven MPs to sit in parliament, Coalition sources said confidence had waned that Joyce, along with the regional development minister, Fiona Nash, would survive the challenge to their election.

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It has left the government attempting to solve the energy issue that cost Malcolm Turnbull his job as party leader in 2009, while fighting off continued internal criticism and fissures of opinion.

If the high court, sitting as the court of disputed returns, finds its MPs, in particular Joyce, were ineligible to be elected in 2016, it would also face the dissipation of its one-seat majority.

Suggestions Joyce could continue as a minister for a further three months while any byelection was carried out, under a precedent set in 1968, have been received dimly by constitutional experts.

John Gorton moved from the Senate to the House of Representatives after Harold Holt’s disappearance, using section 64 of the constitution, resigning his Senate seat, but remaining in parliament for the three weeks it took to run a byelection in Holt’s seat of Higgins.

Prof Anne Twomey, from the University of Sydney law school, said Gorton’s case did not have the same parameters as those Joyce is facing.



“The Gorton precedent involved a senator resigning so that he could run for a seat in the lower house, which is the appropriate place for the prime minister to sit,” she said.

“It did not involve his disqualification from parliament and he was only out of parliament just over three weeks. The cases of Joyce and Nash are different. If the high court held that they were not validly elected, then they would not have been a member of either house since July 2016.

“The three months’ grace period would have run out a long time ago.”

Prof George Williams from the University of NSW law school concurred.

“The normal course for the high court is the person is disqualified from the moment the issue arose.” he said. “For these cases, that would be from the time of election and that three months has well and truly passed.”

Also under consideration if the high court ruling goes against the government is the cancellation of the remaining sitting weeks, with the government holding control over the sitting schedule while any government Senate vacancies and, if necessary, Joyce’s byelection were decided.

That option would be considered more seriously if Labor refused to give the government a pair for Joyce’s vote in the lower house, an event opposition sources said would present a difficult choice, with Labor weighing up the political damage being seen as “destroying or interfering with the parliament” could cause with the public.

The leader of opposition business, Tony Burke, said no decisions had been made but there was no convention that would force Labor to gift the government a pair.

“Pairs are governed by a written agreement between the whips and this circumstance would not be covered by the agreement should it arise,” he said.

The high court has acknowledged the need for a speedy decision but warned on the last day of hearings it may not be possible, given the complexity of the seven cases before it.

Apart from high court dramas, the government will attempt to settle its energy policy.

Over the recess, Turnbull, Joyce and the energy minister, Josh Frydenberg, wrangled an agreement from the major gas exports companies to meet the coming domestic shortfall, without resorting to pulling its export limitation trigger, but has been unable to answer what it plans to do next.



That solution is expected in the coming days, as the government attempts to square the issue away before looming state elections, the coming summer and expected power outages, while dulling attacks from internal critics such as Tony Abbott, and the opposition.

The government has all but announced its plans to move away from a clean energy target but it is also expected to overhaul the market rules and introduce mechanisms to reduce greenhouse gas emissions, including through the use of international permits, as it seeks to put “reliability” of the energy network front and centre of its policy.

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In the Senate, the government faces another battle with its higher education bill, which is listed for debate in the coming week but still lacks the support of Labor, the Greens and the Nick Xenophon Team.



The NXT’s education spokeswoman, Rebekha Sharkie, told Guardian Australia on Friday her party “can’t support the legislation” in its current form because it opposes the cumulative 7.5% fee rises for students by 2021, the 2.5% efficiency dividend in 2018 and 2019 and the plan to make 7.5% of commonwealth grants to universities contingent.

Sharkie, who met with the education minister, Simon Birmingham, on Wednesday, suggested if the cost-cutting measures were removed NXT could support other elements of the bill, such as commonwealth supported places for sub-bachelor diplomas. The NXT also wants a wider review of higher education and the world of work, including the role of vocational education and apprenticeships.

On Thursday Birmingham told Sky News it was possible that Sharkie had voted against the bill in the lower house to express concerns but the NXT “might negotiate an outcome” in the Senate.

Birmingham said he continued to have constructive discussions with the crossbench about the bill, which he said would “hold universities more accountable in terms of an element of performance funding and bring some budget sustainability particularly around the student loans program”.

The government’s proposed citizenship overhaul also presents another challenge, with Peter Dutton still working on locking in support.

“But all eyes are on the high court,” one government source said. “That will decide not just this coming week but how the rest of the year plays out.

“And that is assuming we get a decision soon.”