Dutton's New Childcare Centre Raises Fresh Section 44 Issues

Labor could again move to refer Peter Dutton to the High Court over his financial interests in childcare centres, with questions over a new facility linked to the Minister for Home Affairs which may open in Townsville.

It comes as likely new Member for Wentworth, Kerryn Phelps, reserves her decision on whether she would vote to refer Dutton to the High Court over his looming section 44 issues -- a choice which could be the sole difference between a motion succeeding or failing.

Development applications reveal the RHT Family Trust, of which Dutton is listed as a beneficiary on his register of interests as a family or business trust, has lodged development applications for a new childcare centre in Townsville. The Labor Party said this new centre raises fresh questions over Dutton's eligibility to sit in parliament, and deserves to be referred to the High Court.

This centre would be in addition to the two childcare facilities the trust already operates in Brisbane. These existing centres, along with most others in the country, now receive direct subsidies from the Commonwealth after a recent change in law.

The Camelia Avenue Childcare Centre in Brisbane, one of two Dutton's RHT Investments currently owns (AAP Image/Jono Searle)

Constitutional experts said in August there are "questions to be answered" over those centres, with section 44 (v) of the constitution not permitting "any direct or indirect pecuniary interest with the Public Service of the Commonwealth".

"Mr Dutton can pretend this issue has gone away but it hasn’t," Labor's shadow attorney general Mark Dreyfus told ten daily.

"The reality is that there remains significant doubt as to whether Mr Dutton is qualified to be in the Parliament -- which casts a legal cloud over every decision he has made as Minister."

"The only way this can be cleared up is through a referral to the High Court."

Sydney University's Professor Anne Twomey told Ten in August that a High Court judgement against former Senator Bob Day ruled an agreement held through a family trust still met the test for disqualification.

Professor George Williams AO, the Dean of Law at UNSW, agreed there was an “arguable case against Peter Dutton.”

ten daily has approached Dutton's office for comment.

The new Townsville centre, in the suburb of Wulguru, was first applied for in September 2017 and is proposed to host up to 85 children. The development application, lodged with Townsville City Council, is signed by Dutton's wife Kirilly, listed on the forms as director of RHT Investments. However, the ABN listed is for the RHT Family Trust, not RHT Investments.

Dutton listed the purchase of the Townsville "investment property" on behalf of 'RHT Investments (QLD) P/L as trustee for RHT Family Trust', on his register of interests in November 2016.

Edison Plaza, the site of the proposed new childcare centre (Google Street View)

Ten can also reveal Dutton posted several advisories on his Facebook page about the impending childcare law changes, and the ability for parents to apply for a rebates.

"Don't forget to make the switch before 2 July or risk missing out on the new subsidies," he wrote in a post on June 12, which promoted the changes as a positive for parents.

A near-identical caption was used for a June 29 video, filmed at the Pine Rivers Kindy -- north of Brisbane, in his electorate of Dickson -- where a voiceover from Dutton himself said it was "really important" parents updated their details online.

"Many local families will be hundreds, if not thousands of dollars better off" under the changes, the minister said in the video.

Dutton's office did not respond to questions as to whether the minister used taxpayer funds to boost or promote the posts on Facebook.

Dutton is a cabinet minister and local member, and it is normal for politicians to use various communication channels to advise their constituents of important changes.

However, Dutton's interests in childcare centres should have been disclosed, Dreyfus said.

"The revelations that Mr Dutton’s family trust have sought approval for a third childcare centre in Townsville, and that Mr Dutton has promoted changes to the childcare subsidy on his official Facebook page without declaring his own interests, raises more questions over his eligibility," the shadow attorney general said.

"Mr Dutton has to explain, were taxpayer dollars spent to produce or promote this video, to advertise a policy which could have benefited him personally?"

(AAP Images)

The last parliamentary motion to refer Dutton to the High Court over the childcare-related section 44 questions, put forward in August during the week of spill motions against former Prime Minister Malcolm Turnbull, failed by a single vote -- 69-68.

With Turnbull now out of parliament, and independent Kerryn Phelps set to take his seat of Wentworth, it is unclear whether she would side with the government or the opposition.

If voting lines hold the same as in the previous vote, her vote could be the difference between Dutton facing the High Court of not.

"I’m interested in evidence. I haven't seen a full brief of the situation with Peter Dutton. I would need to make sure I was completely familiar with the details of that case before i make any comment on it," Phelps told ten daily last week.

"With anything as important as a referral to the High Court, it’s really important you have a full brief of evidence."

She also said she would "act to keep the government to account, not hold the government to ransom", so it remains to be seen whether she would vote to refer Dutton and potentially put the Coalition -- already at minority government status after her win reduced their seats from 76 to 75 -- in more jeopardy.

Research: Kate Doak.