'That is wrong in law': Turnbull tried to bring in Governor-General in last-ditch act

Malcolm Turnbull triggered a confrontation over the role of the Governor-General Sir Peter Cosgrove at the height of the Liberal Party’s leadership spill last August in a previously undisclosed dispute that threatened to turn into a constitutional crisis.

In a high-stakes drama during a week of upheaval, the former prime minister argued with then Attorney-General Christian Porter over whether the Governor-General should play a decisive role in the leadership spill.

Mr Turnbull argued the Governor-General should reject Peter Dutton as the new leader of the government if the then Home Affairs Minister won the ballot set down for Friday, August 24, on the grounds he might be ineligible to sit in Parliament.

The former prime minister also came close to putting this position in public at a press conference, signalling his advice to the Governor-General if the Liberal party room chose Mr Dutton.

Mr Porter disagreed with this assessment in a meeting with Mr Turnbull in the Prime Minister’s office on Thursday, August 23, shortly before a crucial press conference in which Mr Turnbull laid down the terms of the ballot.

Then Attorney-General Christian Porter and then Prime Minister Malcolm Turnbull clashed over Turnbull's last-ditch plan to bring in the Governor-General.Credit: Andrew Meares

“In my view that is wrong in law,” Mr Porter told Mr Turnbull of the Prime Minister’s opinion.

The meeting was held to discuss legal advice on whether Mr Dutton had breached Section 44 of the constitution because of his financial interests in childcare centres that received money from the Commonwealth.

Mr Porter had sought advice from the Solicitor-General, Stephen Donaghue, on the Section 44 questions after Network Ten revealed the problem days earlier, but the final advice did not arrive until Friday morning.

The Solicitor-General’s advice acknowledged the risk to Mr Dutton from a decision in the High Court that he was ineligible, but the document was not conclusive about which way the court might lean.

Mr Porter argued that any advice about a potential High Court decision was a matter for the party room to consider when casting a vote on the leadership but not a matter for the Governor-General in appointing a Prime Minister.

The dispute grew so heated that Mr Porter told Mr Turnbull he would go public with his opinion if the Prime Minister insisted on making a public statement that the Governor-General could not appoint Mr Dutton.

“If you say this at your press conference I will rebut it,” Mr Porter said.

This raised the risk of an open dispute between the Prime Minister and the Attorney-General on a key constitutional question.

The events have been confirmed by several sources interviewed for a new book by this reporter on the Liberal Party leadership, called Venom: Vendettas, Betrayals and the Price of Power.

When the time came for the press conference, Mr Turnbull did not mention the role and responsibilities of the Governor-General. He emphasised the need for Members of Parliament to be eligible under Section 44.

Turnbull wanted the Governor-General to rule Peter Dutton out of contention due to constitutional issues.Credit: Alex Ellinghausen

Mr Porter spent much of the Thursday and Friday of that week preparing the legal arguments on the eligibility of Mr Dutton and the function of the Governor-General.

The clash raised the prospect of a constitutional crisis if Mr Turnbull formally advised the Governor-General against appointing Mr Dutton as Prime Minister when this advice was disputed by others within the cabinet.

In the end, the party room chose Scott Morrison as leader in the ballot on August 24. The Solicitor-General’s advice on Mr Dutton was inconclusive. Mr Turnbull’s advice to the Governor-General about Mr Dutton was never required.

Yet the conversations between Mr Turnbull and Mr Porter reveal how close the federal government came to an even bigger crisis.

Venom: Vendettas, Betrayals and the Price of Power, by David Crowe, is published by HarperCollins Australia and will be available from August 19.