Eligibility row muddies waters for Peter Dutton run

Peter Dutton hits back at a “spurious and baseless” campaign calling his eligibility for parliament into question over his interest in childcare centres.

Peter Dutton holding a press conference at Parliament House in Canberra. Picture: Kym Smith

Peter Dutton has hit back at a “spurious and baseless” campaign calling his eligibility for parliament into question over his interest in childcare centres.

Mr Dutton, who is mounting another bid to topple Prime Minister Malcolm Turnbull, has this morning released legal advice from Colin Biggers & Paisely Lawyers saying he was in the lear.

He has been facing questions over his interest in two Brisbane childcare centres through the RHT Family Trust.

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“The timing on the eve of current events in Australian politics is curious,” Mr Dutton said in a statement. “There has never been any doubt about my eligibility to sit in the parliament.”

It comes after Labor called for Mr Dutton to be referred to the High Court to test his eligibility for parliament. “If he’s trusting of his legal advice there’d be no problem there,” Deputy Labor leader Tanya Plibersek told ABC radio on Thursday.

Mr Dutton’s bid to replace Mr Turnbull has become complicated by an investigation into whether he is eligible to sit in parliament because of his family’s ­financial interests in two Brisbane childcare centres that received $5.6 million in taxpayer-funded rebates over the past eight years.

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Attorney-General Christian Porter last night referred Mr Dutton’s position to the Solicitor-General for advice as legal opinion remained divided over whether he was ineligible for parliament under section 44 (v) of the Constitution, which disallows a person if they have “any direct or indirect pecuniary interest in any agreement with the public service of the commonwealth”.

Mr Dutton’s links to the childcare centres are through a family trust that receives income from them, and through his wife Kir­i­l­ly’s direct role as the owner of a company that runs the centres.

So far Mr Dutton is standing by legal advice that “clearly states there is no breach of section 44”. His spokesman said the advice noted commonwealth money was not paid to childcare centres, but through the centres to agents who get a government rebate subsidising their payment of private fees.

Key Dutton supporter Tony Abbott pointed the finger at Mr Turnbull yesterday for fuelling uncertainty about his rival’s eligibility to remain in parliament. On Sydney radio station 2GB, Mr Abbott said he found it “very strange” Mr Turnbull did not simply say, when the matter was raised in the Senate a year ago, that a QC’s advice had made it clear Mr Dutton’s position was “absolutely secure”.

Earlier, Mr Turnbull told parliament he had “not read” the legal advice and was “not in possession of all of the facts”.

Mr Turnbull’s backers have sought to blame Labor for politicising the issue.

Constitutional experts told The Australian that Mr Dutton’s financial interests in the childcare centres involved a “grey area” of the law, but most likely did not disqualify him from parliament.

Mr Dutton has declared in his MP’s register of interests that he, his wife and their children are beneficiaries of the RHT Family Trust, which receives income from childcare centres at Everton Hills and Bald Hills. The centres are owned and operated by Ms Dutton and Mr Dutton’s father, Bruce through two companies they separately own, RHT Investments Pty Ltd and Bald Hills Child Care Pty Ltd. Mr Dutton was a director of one company until 2010.

Under changes in July, the government pays a subsidy direct to childcare centres, whereas previously parents could choose to receive it directly.

Labor last night released legal advice it commissioned from barristers Bret Walker SC and James Mack in which they concluded Mr Dutton had “at least an indirect and possible direct interest within the meaning of section 44” which had a reasonable prospect of being found by the High Court to make him ineligible for parliament. They said that “at their core”, the payments were made on the commonwealth’s behalf “to an entity to which Mr Dutton has declared that he has a clear relationship”.

University of Queensland law of politics professor Graeme Orr said he did not think Mr Dutton had an issue under section 44, because centres did not enter into “agreements” with the public service; they simply received a subsidy on behalf of parents.

A Department of Education spokeswoman said the government had “no contractual relationship with childcare providers” for the purposes of administering subsidies on behalf of families.

Additional reporting: AAP, Nicola Berkovic, Christine Lacy