PM should ensure Peter Dutton’s case is heard in High Court

Home Affairs Minister Peter Dutton during Question Time last Thursday. Picture: AAP

While Scott Morrison has sought to deflect Home Affairs Minister Peter Dutton’s eligibility issues by saying they are nothing more than a “lawyers’ picnic”, the fact is serious questions remain about whether Dutton is entitled to sit in parliament. There are real and unresolved issues about whether one of the nation’s most senior politicians is breaching the law by acting as a minister and parliamentarian.

At issue is whether Dutton has contravened section 44 of the Constitution by having a financial interest in an agreement with the commonwealth.

The section prevents politicians from having a conflict of interest, by being beholden to the public service or by lining their own pockets at taxpayers’ expense. It is arguable that Dutton is in breach of this rule ­because he is a beneficiary of a family trust that owns two childcare centres that receive government subsidies for providing those services.

Concern emerged in the lead-up to Dutton’s tilt at the prime ministership and has not died down — because the case against Dutton is far from trivial. It has a reasonable prospect of success and similar cases involving section 44 have been referred to the High Court. It is hard to see, for example, the basis for referring former deputy prime minister Barnaby Joyce but not the Home Affairs Minister.

There is no refuge for Dutton in the several legal opinions by eminent lawyers on whether he is breaching the Constitution. They serve to highlight that Dutton’s case lies in a grey area, which is a far cry from his claim that his advice “puts the question beyond doubt”.

Even the finding of the government’s chief lawyer, Solicitor General Stephen Donaghue, that Dutton may survive a High Court challenge comes with heavy qualifications, including that “it is impossible to state the position with certainty”. This is hardly a clean bill of health.

The case against Dutton has strengthened over the weekend. During the leadership contest, questions about his eligibility ­focused on the millions of dollars in government subsidies received by his childcare centres. These would breach section 44 of the Constitution, except that it is not clear the subsidies are paid under an “agreement” between the government and the centres.

What has since come to public attention is a letter showing that Dutton’s childcare centres have a separate agreement under the ­inclusion support program with the commonwealth to receive $15,640 to hire a special needs teacher. In this case, there is clearly an agreement to which section 44 applies. Despite the advice of the Solicitor General, and the smaller amount involved, this presents a stronger case for disqualification.

No minister of the crown, let alone one charged with the nation’s security, should remain under such a cloud. Unfortun­ately, there is no easy way to resolve this. A similar case arose earlier this year when the High Court was asked to determine the eligibility of Coalition frontbencher David Gillespie. Unfortun­ately, the court did not give an answer, stating that it will hear matters of disqualification only where they are lodged within 40 days of an election or are referred by parliament.

The uncertainty about Dutton’s position means there is considerable pressure on the House of Representatives to refer his case. This is a matter of numbers, with the Coalition able to use its majority to block the move. It will hold the line unless the growing doubt over Dutton causes members to lose their nerve, or if former prime minister Malcolm Turnbull convinces someone to cross the floor.

This is a terrible system. It permits politics to trump the proper resolution of whether a member of parliament is breaching the law. A government can shield its own members while using the house to refer members of the opposition to the High Court. This is hardly in the public interest or consistent with the rule of law.

Others are looking at more creative ways of having Dutton’s case heard by the High Court. As a federal minister, he has made many thousands of decisions about visas and matters of national security. Each of these decisions depends on him being a minister. Under section 64 of the Constitution, apart from a three-month period of grace, he is entitled to serve as a minister only if he is a member of parliament.

A person aggrieved by one of his decisions could mount a court challenge on the basis that the decision is invalid because Dutton was not a member of parliament or a minister at the time it was made. This form of collateral attack has been used with success in other areas. However, it is not so clear that the backdoor tactic will be effective here given the High Court’s reluctance to hear the Gillespie matter earlier this year. No doubt, though, many people will be motivated to try.

In the meantime, Morrison’s early days as Prime Minister are subject to distraction and legal argument about the standing of one of his most senior ministers. As in other respects, this is a continuation of the Turnbull government. Turnbull spent the best part of this parliament dealing with the fallout from members being referred to the High Court.

Morrison should ensure that Dutton’s case is heard in the same way.

George Williams is dean of law at the University of NSW