Testing Peter Dutton’s eligibility for parliament is right thing to do

The government is right to examine claims that prime ministerial hopeful Peter Dutton is disqualified from sitting in parliament. In seeking advice from its chief legal officer, Solicitor-General Stephen Donaghue, the government has turned to a person whose views can be treated as independent.

The task of the Solictor-­General is to determine whether Dutton has an “indirect pecuniary interest” in an “agreement with the Public Service of the Commonwealth” under section 44(v) of the Constitution. Dutton has a case to answer because he is a beneficiary of a family trust that owns two childcare centres in Queensland. The centres receive subsidies from the commonwealth in return for providing childcare services.

The Solictor-General will examine two key issues. First, is there an “agreement” between the childcare centres and the federal government? This involves an analysis of Australia’s complex scheme for providing childcare subsidies under the A New Tax System (Family Assistance) ­(Administration) Act 1999.

It will need to be shown that there is an arrangement that goes beyond the automatic payment of subsidies to childcare providers.

Second, it must be determined whether any such agreement falls within the scope of section 44. Some agreements do not give rise to disqualification. For example, a contract whereby a parliamentarian pays money to the commonwealth to receive a passport could hardly lead to their expulsion from parliament. An issue here is whether any agreement is part of a general scheme of government regulation rather than a specific arrangement between the centres and the government. These questions need to be answered in light of what the High Court has said about section 44(v).

It adopted a strict approach last year in striking out senator Bob Day but left key matters un­answered. As a result, the only people who can say for sure whether Dutton is disqualified are the seven judges of that court.

The most likely result is that there is no agreement to which section 44 applies and Dutton is not disqualified from parliament.

If the Solicitor-General takes a contrary view, the matter can only reach the High Court if it is referred by the House of Representatives. This would seem unlikely, given that the government controls a majority in that house.

However, the political turmoil of this week throws up other possibilities, including that Coalition members might side with Labor to ensure that Dutton has his day in court.

George Williams is dean of law at the University of NSW