Questions over Dutton’s eligibility to sit in parliament

Constitutional experts say there are “genuine questions” over Peter Dutton’s eligibility to sit in parliament.

Constitutional experts Anne Twomey and George Williams say there are “questions’’ over Peter Dutton’s interests in two Brisbane childcare centres that receive payments from the commonwealth. Picture: Kym Smith

Two leading constitutional experts say there are “genuine questions” regarding Home Affairs Minister Peter Dutton’s eligibility to sit in parliament, but his situation is unlikely to be tested as the government would have to refer the case to the High Court.

As Malcolm Turnbull faces leadership pressure amid speculation Mr Dutton could move to topple him for the prime ministership, constitutional experts Anne Twomey and George Williams say there are “questions’’ over his interests in two Brisbane childcare centres which receive payments from the commonwealth.

The parliamentary register of members’ interests discloses that Mr Dutton, his wife Kirilly and their children are beneficiaries of the RHT Family Trust.

As the Ten Network last night revealed, ASIC documents show the trust owns the for-profit Camelia Avenue Childcare Centre and another centre at Bald Hills, in suburban Brisbane.

On July 2, the Turnbull government’s childcare reforms, for which Mr Dutton voted as a member of cabinet, came into effect, meaning childcare centres receive direct subsidies from the commonwealth which are then passed on to parents.

Under section 44(v) of the Constitution, any person with “any direct or indirect pecuniary interest with the Public Service of the Commonwealth” is disqualified from parliament.

A spokesman for Mr Dutton said the minister’s legal advice “clearly states there is no breach of Section 44”, noting commonwealth money is not paid to childcare centres, but through childcare centres to parents.

“There is a genuine question regarding Mr Dutton’s disqualification,” Professor Twomey told The Australian.

“Disqualification under the constitution is automatic — no court judgment is needed.

“But where it is disputed (as it would be here) only the court could clarify whether disqualification has occurred. If the House does not refer the matter to the court, it is very hard to get there.”

Fellow constitutional expert George Williams told Ten: “There is an arguable case against Peter Dutton.”

Section 44(v) was used to disqualify Family First senator Bob Day after he established his electoral office inside a property in which he had a financial interest.

Mr Dutton’s case differs from Mr Day’s because childcare subsidies apply equally to all childcare centres, whereas Mr Day’s arrangement worked directly to his benefit.