Constitutional Cloud Emerges Over Peter Dutton's Business Interests

Two of the nation’s most eminent constitutional lawyers say Peter Dutton’s business interests could warrant his disqualification from Parliament.

As Malcolm Turnbull fights for his political life, Peter Dutton is the man who holds the key.

“Peter Dutton has given me his absolute support,” said the Prime Minister on Monday. And as long as he can say that, he will probably hold on.

But TEN News can report the powerful Home Affairs Minister is under his own legal cloud.

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Two of the nation’s most eminent constitutional lawyers say Dutton’s business interests could warrant his disqualification from Parliament.

“There are at least questions to be answered,” says Sydney University Professor Anne Twomey.

A spokesman for the minister on Monday said “Mr Dutton’s legal advice clearly states there is no breach of Section 44.” (Image: AAP)

The issues stem from Dutton’s interest in two child care centres in suburban Brisbane. The Camelia Avenue Child Care Centre and one at Bald Hills are for-profit operations owned by RHT Family Trust, according to ASIC documents.

Dutton’s Parliamentary register declares he is a “beneficiary” of the RHT Family Trust, along with his wife and children.

Constitutional Cloud Emerges Over Peter Dutton's Business Interests

A change in the law, for which Dutton voted as required by his position in Cabinet, means these two childcare centres, along with most others in the country, now receive direct subsidies from the Commonwealth.

The effective start date was July 2, 2018.

And here is where it gets interesting.

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.

Disqualification means what it says.

“You are no longer a member of Parliament,” says Professor Twomey.

“Your seat has been vacated. You cannot vote and you cannot sit as a Member of Parliament.”

Constitutional Cloud Still Hangs Over Dutton

Professor Twomey says the High Court judgement against Family First Senator Bob Day made plain that an agreement held through a family trust still met the test for disqualification.

A second Constitutional Law expert, Professor George Williams AO, the Dean of Law at UNSW, reviewed Professor Twomey’s opinion and agreed there is an “arguable case against Peter Dutton.”

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The High Court has taken a hard line on politicians’ eligibility under citizenship rules under Section 44 of the Constitution.

Professor Twomey says the Dutton case would fall into the “fuzzy edges” of the law. Professor Williams says it would depend on “as yet undetermined” legal precedent.

A spokesman for the minister on Monday said “Mr Dutton’s legal advice clearly states there is no breach of Section 44.”

But in any event says Professor Twomey, “it’s a matter for the High Court to decide.”

High Court Could Strike Down Decisions Of Potential PM

By rights, voters might hope that anything as serious as the Constitutional eligibility of a senior minister would be automatically referred to the High Court for a decision.

It doesn’t work that way.

Except for the 40 days after an election, says Professor Twomey, it is a matter for Parliament to decide if a member is referred to the judges. As the Prime Minister balefully pointed out today during Question Time, “we have a majority of one in this house.”

Referring any government MP to a court that could force a by-election, let alone a key figure like Mr Dutton, is -- to put it mildly -- unlikely.

But while it remains unresolved, the minister responsible for the most powerful law enforcement agencies in the Commonwealth, and in whose hands lies the future of the Prime Ministership itself, is under a legal cloud.

The Constitutional question: is he entitled to sit in Parliament at all.

  • Research: Kate Doak