Dutton at risk of citizen’s High Court challenge
Peter Dutton’s eligibility for parliament could be tested in the High Court without a parliamentary referral if a person aggrieved at one of the minister’s decisions launched a challenge, according to constitutional expert George Williams.
The dean of law at the University of NSW argues that the case against the Home Affairs Minister under section 44 of the Constitution has a “reasonable prospect of success” and has “strengthened in recent days”.
Mr Dutton is the beneficiary of the RHT Family Trust, the trustee of which is RHT Investments, which owns the Camelia Avenue Childcare Centre in Queensland and which receives federal money in the form of the Child Care Subsidy. The childcare centre also received more than $15,000 under the government’s Inclusion Development Fund to provide a teacher for children with special needs — an arrangement that required a separate agreement.
“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,” Professor Williams writes in The Australian today.
He argues that the legal advice provided by Solicitor-General Stephen Donaghue is “hardly a clean bill of health” but political considerations will discourage the government from making the referral to the High Court.
Professor Williams argues that others were “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 upon him being a minister … 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 nor a minister at the time it was made,’’ he said.