'The proposition is nonsense': Turnbull hits back at Christian Porter in leadership row

Malcolm Turnbull has taken on Peter Dutton and Christian Porter in a deepening dispute over the Liberal Party leadership spill by declaring it "nonsense" for the pair to argue that the Governor-General, Sir Peter Cosgrove, should not have been involved in the crisis.

Mr Turnbull insisted the Governor-General was "not a constitutional cipher" and should consider many factors about a potential prime minister – and that one of these factors was Mr Dutton's eligibility to sit in Parliament.

Peter Dutton's Parliament eligibility was the topic of argument between then-PM Malcolm Turnbull and Attorney-General Christian Porter.Credit: Alex Ellinghausen

The remarks confirm reports on Thursday that Mr Turnbull argued during the leadership spill last August that the Governor-General should consider whether Mr Dutton was ineligible to stay in Parliament under Section 44 of the constitution because of his financial links to the Commonwealth.

"The discretion to swear in a person as PM is vested in the Governor General," Mr Turnbull said on Twitter on Thursday.

Mr Turnbull argued that this discretion meant the Governor-General should consider the claims that Mr Dutton was not eligible to sit in Parliament before making any decision to name him Prime Minister if he had won the leadership ballot on Friday, August 24.

"The proposition advanced by Mr Porter that it is none of the GG's business whether the would-be PM is constitutionally eligible is nonsense. The GG is not a constitutional cypher," Mr Turnbull said.

At issue is whether Mr Turnbull was right to seek legal advice on whether Mr Dutton was eligible to sit in Parliament because of his financial link to childcare centres that received money from the Commonwealth, a potential breach of Section 44 that was never tested in court.

As reported by The Sydney Morning Herald and The Age on Thursday, Mr Turnbull spoke to Mr Porter, the Attorney-General, in the week of the leadership spill to seek legal advice on Mr Dutton's eligibility.

Mr Porter gained the advice from the Solicitor-General, Stephen Donaghue, and sought other advice that led him to conclude the Section 44 concern about Mr Dutton was a matter for the party room but not the Governor-General.

Mr Porter believed the party room was the appropriate forum to consider whether Mr Dutton would have to be referred to the High Court to decide his eligibility but that the Governor-General's task was to decide which individual could command a majority in the House of Representatives.

Under this view, there would be no impediment to naming Mr Dutton as prime minister if he secured a majority in the Liberal Party room.

Mr Turnbull insisted the Section 44 questions were an impediment to Mr Dutton's rise and should be considered by the Governor-General.

"The SG's advice was delivered on the morning of Friday 24th and duly published," Mr Turnbull said on Thursday.

"His advice was that 'the better view' was that Dutton was eligible but it was 'impossible to state that position with certainty' and there was 'some risk' the High Court would rule he was ineligible.

"I took the responsible course of action, obtained the necessary advice, published it and the party room was informed when it made its decision to elect Mr Morrison, rather than Mr Dutton, as leader."

The legal clash between Mr Turnbull and Mr Porter took place in the Prime Minister's office at about noon on Thursday, August 23, according to interviews conducted by this reporter for Venom: Vendettas, Betrayals and the Price of Power, an account of the Liberal Party in government to be published in August.

Mr Porter confirmed the reports on Thursday that he told Mr Turnbull it was "wrong in law" to advise the Governor-General against appointing Mr Dutton as prime minister if he was elected leader by the Liberal party room.

"There are constitutional scholars out there that will have a view about this, but the view that I have taken has been fairly accurately reported, I think, and it's actually a fairly simple matter in most respects," Mr Porter told radio station 6PR.

"There are sometimes disagreements about legal views. That's not unusual. It's an important matter.

"But in the end, nothing came of this because Peter Dutton didn't win the ballot, Scott Morrison did and the job of the government now is to govern."

Asked if Mr Turnbull was trying to protect himself by calling the Governor-General, Mr Porter said he did not have views on those sorts of things and his job was to provide the best legal advice.

Asked if his meeting with Mr Turnbull was tense, Mr Porter said: "Well, sometimes meetings in government aren't all potpourri and roses."

But Mr Porter also questioned the impact of the revelations on the wider community, saying voters "definitely" did not care about retrospectives about political events.

Mr Dutton backed Mr Porter's view of the legal question and praised the Attorney-General as a man of "integrity and decency" who considered the issue carefully without taking sides.

Mr Dutton told radio station 2GB that Mr Porter saw "inappropriate behaviour" taking place and called it out.

"He stood up to it and, you're right, it was a gutsy move and I think he deserves full credit for it," the Home Affairs Minister said.

A spokeswoman for Mr Dutton confirmed on Thursday he had formally renounced any interest in the family trust that held the childcare assets, but she said this was done to "silence those who are politically motivated and continue to raise this" rather than any concession there was a problem.

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