Advice provided by the Solicitor General Stephen Donaghue argues that Peter Dutton is probably “not ineligible” to sit in parliament.
“The better view is that Mr Dutton is not incapable of sitting as a Member of the House of Representatives,” wrote the solicitor general.
However, he noted that there is “some risk” and that it is “not possible to reach a definitive conclusion on that matter without more detailed factual information”, noting that such decisions are highly fact-dependent. Donaghue did not have access to key pieces of factual information that could bear on any decision, he said.
It leaves the issue somewhat open.
Parliament could decide to refer the matter to the High Court when it returns on September 10. It would be possible for anyone to challenge his eligibility within 40 days after the next election, though presumably he would use the period before the election to get his financial affairs in order to avoid that possibility.
Constitutional expert George Williams agreed with the solicitor general, saying on Twitter that he thinks it’s likely Dutton is fine, but that only the High Court can resolve the problem.
The SG’s advice is spot on. It is more likely that Peter Dutton is not disqualified, but this cannot be stated with certainty. As the SG says, there is a risk he is in breach of section 44. Only the High Court can resolve this cloud of doubt.
— George Williams (@ProfGWilliams) August 24, 2018
Section 44(v) of the Constitution renders anyone with a pecuniary interest in an agreement with the Australian Public Service incapable of being chosen for, or sitting in, the House of Representatives.
Dutton is a beneficiary of the RHT Family Trust, which operates Camelia Childcare, a business that receives payments from the Department of Education and Training. His wife is the only shareholder of the trustee company.
On Wednesday the Labor party released advice it commissioned from Bret Walker SC stating that:
“… it is clearly arguable that MR Dutton is not eligible to sit in the 45th parliament and potentially not eligible to have been chosen for the 45th parliament. We are of the view that this is the preferable argument.”
Labor’s advice dates from April — long before the story was broken by Channel Ten on Monday — suggesting the party has been aware of this issue for some time.
Dutton has released two documents of advice arguing he is eligible to sit in the parliament. The first, prepared by Guy Reynolds SC, was found to have been written before changes to childcare funding in July, but the second, by David Bennett, agreed that Dutton was not rendered ineligible by his interest in the childcare centres.
This advice is in addition to my original advice from Guy Reynolds SC which also confirmed I was not in breach of s.44(v).
Mr Bennett’s unequivocal advice puts to rest the spurious & unsubstantiated allegations raised against by eligibility. 3/3 pic.twitter.com/Eb90HvzOew
— Peter Dutton (@PeterDutton_MP) August 23, 2018
Senator Mathias Cormann, who announced yesterday he had abandoned Turnbull, told Sky News Australia this morning that Dutton was in the clear on section 44. “This was always a complete and utter furphy. Of course Peter Dutton is validly elected to the Australian parliament.”