Dut­ton at risk of cit­i­zen’s High Court chal­lenge

The Australian - - THE NATION - JOE KELLY

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.

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