Leadership crisis: Pressure builds on Solicitor-General over Peter Dutton’s eligibility
ANALYSIS: IT’S the issue that could determine who will be the next PM. But experts say there may not be a definitive answer on Peter Dutton’s eligibility before a future leadership spill.
National
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QUESTIONS over Peter Dutton’s potential breach of Section 44 of the constitution may not be answered definitively before tomorrow’s potential leadership showdown.
Constitutional law experts say Solicitor-General Stephen Donaghue will be under enormous pressure to provide a clear cut answer, but the reality is it may not be that simple.
“The Solicitor-General will most likely provide advice that weighs up the various arguments and which one is more likely to be successful,” Dr Gabrielle Appleby from UNSW Law told News Corp.
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“What we have seen is that there are two very different arguments out there and ... I think that the likely outcome of the Solicitor-General’s opinion would be to put the two arguments forward and provide advice as to which is the better view. It is highly unlikely it will be definitive one way or the other.”
Dr Appleby, who has written a book on the role of the Australian Solicitor-General, said the
“weakness” in the Australian system is that even if the advice finds that Peter Dutton is in breach of Section 44, subsection 5 of the constitution he doesn’t have to be referred to the High Court.
“The way the Australian system works is that it is either the House or the High Court that can resolve this.”
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Mr Dutton’s eligibility for Parliament has been thrown into question over his stake in a trustee company that operates two childcare centres.
The centres receive subsidies that were legislated by the Turnbull government.
Under the new childcare system which came into force on July 1, subsidies are paid direct to childcare centres as opposed to parents.
However even under the old system parents could still elect to have subsidies paid direct to their centres.
Mr Dutton has legal advice from his lawyer Guy Reynolds SC who says he is in the clear.
Mr Reynolds argues the subsides all flow to parents and don’t benefit the centres, therefore nullifying any additional benefit to Mr Dutton from the new subsidy scheme.
But Labor released advice from Bret Walker who said it was his view Mr Dutton was not eligible to remain in Parliament.
Prime Minister Malcolm Turnbull said if the advice from the Solicitor-General cleared Mr Dutton he would call a party room meeting for midday tomorrow to resolve the leadership issue.
“I cannot underline too much how important it is that anyone who seeks to be Prime Minister of Australia is eligible to be a member of Parliament,” Mr Turnbull said.
Dr Appleby said the Solicitor-General would withstand any external pressures to sway his decision either way.
“It would be very improper if that were to occur and be in breach of a long standing practice,” she said.
Even if the improper pressures were brought to bear the Solicitor-General is a counsel of such seniority and standing that they wouldn’t be swayed by this kind of inappropriate pressure.”
But the position has not been without political controversy with the former Solicitor-General Justin Gleeson resigning due to a very public spat with former Attorney-General George Brandis.
He claimed their relationship was “irretrievably broken” after a failure to consult him on key policy issues.
George Williams, constitutional law expert, said there would be enormous pressure on Solicitor-General Donaghue right now and he would likely be “working through the night” to ensure the right advice was given to this most important matter.
“It will be quite challenging to prepare the advice in time provided ... but I think he can do it,” Professor Williams said.
“The person in that role of Solicitor General is used to dealing with often quite challenging time pressures and high political stakes.”
Professor Williams also agreed with Dr Appleby that the Solicitor-General would remain non-partisan, despite the enormity of his current situation in playing a role in determining who will be the next Prime Minister of Australia.
Matthew Stubbs, associate professor of law at the University of Adelaide agreed with Dr Appleby that the Solicitor-General may not be able to produce a definitive answer on the situation by tomorrow.
“He may not be able to give a clear cut answer and if he can’t the reality is this won’t be able to be resolved until September when it can be taken to the House of Representatives.”
lanai.scarr@news.com.au