Peter Dutton likely ‘not incapable’ of sitting in parliament but questions remain

LEGAL advice says Peter Dutton is likely “not incapable” of sitting in parliament but the Solicitor-General’s advice raises other serious questions.

LEGAL advice has been released about Peter Dutton’s eligibility to sit in parliament ahead of his expected challenge to Malcolm Turnbull for the Liberal leadership today.

Attorney-General Christian Porter said he had received advice from Solicitor-General Stephen Donoghue QC about whether Mr Dutton was eligible to sit in parliament.

The advice has been provided to the PM and Mr Dutton.

It states that Mr Dutton is “not incapable” of sitting as a member of the House of Representatives but Mr Donoghue said “it was impossible to state the position with certainty”.

The Solicitor-General said he considered it “unlikely” that Mr Dutton would be disqualified because he did not think an “agreement” existed with the Public Service of the Commonwealth.

Regardless, there were some issues that created concerns.

“I consider there to be some risk, particularly in light of the substantial size of the payments that appear to have been made by the Commonwealth to RHT Investments, that the High Court might conclude that there is a conflict between Mr Dutton’s duty as a parliamentarian and his personal interests,” Mr Donoghue said.

“The Court might consider those payments to have created the expectation of benefit to Mr Dutton, on the basis that they would contribute to the amount of surplus income available to be distributed to beneficiaries of the RHT Family Trust, and that Mr Dutton had an indirect pecuniary interest on that basis.”

But Mr Dutton said in a statement that the Solicitor-General’s advice confirmed his own legal advice.

“The consistent and strong advice which I have received puts to rest the false, unsubstantiated and malicious claims regarding my eligibility to sit as a Member of Parliament,” he said.

Serious questions about Mr Dutton’s eligibility to sit in Parliament were referred to the Solicitor General ahead of today’s expected party room meeting.

Mr Dutton, who is expected to launch a second leadership challenge against Malcolm Turnbull today, was at risk of being removed from the contest at the eleventh hour.

Mr Dutton’s RHT Family Trust owns two childcare centres in Brisbane, which have benefited from $5.6 million dollars in Federal Government subsidies since July 2.

Experts argued this put him in breach of Section 44 of the Constitution, which bans politicians from having “any direct or indirect pecuniary interest with the public service of the Commonwealth”.

Peter Dutton insists his childcare centres receiving millions in government funding does not breach the Constitution.

Overnight Mr Dutton tweeted a second opinion from former solicitor-general David Bennett, which he says “clearly states” he can sit in parliament.

According to the advice, Mr Bennett suggests the legal argument hinges on whether there is an “agreement” with the Public Service of the Commonwealth.

“In my opinion, however widely ‘agreement’ is construed, it cannot extend to a situation in which the person obtains a statutory entitlement without any form of contract or a contract-like relationship,” Mr Bennett’s advice states.

“Services performed by child care centres are not performed ‘for’ the Commonwealth. The Commonwealth merely subsidies clients who contract for those services and, on their request, pays the subsidy directly to the provider.

“To describe this as an ‘agreement’ between the service provider and the Commonwealth stretches the word beyond any reasonable interpretation.”

Labor wrote to Mr Turnbull yesterday calling for the matter to be referred to the High Court, saying it had received legal advice that Mr Dutton was in breach.

The respected barrister Bret Walker SC assessed that the “preferable argument” was that Mr Dutton was ineligible because of an “indirect pecuniary interest”.

It lays out an explosive case for the former Home Affairs Minister and PM aspirant to be expelled from parliament.

“Mr Dutton was incapable of being chosen for the 45th Parliament and is not entitled to continue to sit,” the advice stated.

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

The Solicitor General will provide advice on Peter Dutton’s eligibility ahead of tomorrow’s party room meeting. Picture: AAP

George Williams, the Dean of the University of New South Wales Law School, took to Twitter to say that Mr Walker’s conclusion seemed to be that Mr Dutton should be disqualified.

“The 17-page advice is a careful, forensic examination of the issues by the most authoritative member of the Bar on constitutional issues outside of the High Court,” Professor Williams said.

On Thursday, in the shadow of his fresh challenge and a string of frontbench resignations, Mr Dutton hit back and released his own legal advice.

He claimed it showed “there has never been any doubt about my eligibility to sit in the parliament”.

But critics said the advice could be out of date.

Labor has received advice that Peter Dutton is ineligible to sit in parliament, and therefore unable to roll Malcolm Turnbull to become PM. Picture: AAP

In an extraordinary press conference, Mr Turnbull demanded that renegade members of the government provide a petition with a majority of signatures to bring on a new party room meeting.

That meeting would take place on Friday at midday if there was enough demand for it.

But before that, Mr Turnbull said there were important questions to be answered over his rival’s eligibility.

The Solicitor General will now provide advice on the matter before tomorrow’s meeting.