Home Af­fairs Min­is­ter’s right to a seat might be key to the Prime Min­is­ter’s fate

The Australian - - THE NATION - GE­ORGE WIL­LIAMS Ge­orge Wil­liams is dean of law at the Uni­ver­sity of NSW.

While Scott Mor­ri­son has sought to de­flect Home Af­fairs Min­is­ter Peter Dut­ton’s el­i­gi­bil­ity is­sues by say­ing they are noth­ing more than a “lawyers’ pic­nic”, the fact is se­ri­ous ques­tions re­main about whether Dut­ton is en­ti­tled to sit in par­lia­ment. There are real and un- re­solved is­sues about whether one of the na­tion’s most se­nior politi­cians is breach­ing the law by act­ing as a min­is­ter and par­lia­men­tar­ian.

At is­sue is whether Dut­ton has con­tra­vened sec­tion 44 of the Con­sti­tu­tion by hav­ing a fi­nan­cial in­ter­est in an agree­ment with the com­mon­wealth.

The sec­tion pre­vents politi­cians from hav­ing a con­flict of in­ter­est, by be­ing be­holden to the pub­lic ser­vice or by lin­ing their own pock­ets at tax­pay­ers’ ex­pense. It is ar­guable that Dut­ton is in breach of this rule be­cause he is a ben­e­fi­ciary of a fam­ily trust that owns two child­care cen­tres that re­ceive gov­ern­ment sub­si­dies for pro­vid­ing those ser­vices.

Con­cern emerged in the leadup to Dut­ton’s tilt at the prime min­is­ter­ship and has not died down — be­cause the case against Dut­ton is far from triv­ial. It has a rea­son­able prospect of suc­cess and sim­i­lar cases in­volv­ing sec­tion 44 have been re­ferred to the High Court. It is hard to see, for ex­am­ple, the ba­sis for re­fer­ring for­mer deputy prime min­is­ter Barn­aby Joyce but not the Home Af­fairs Min­is­ter.

There is no refuge for Dut­ton in the sev­eral le­gal opin­ions by em­i­nent lawyers on whether he is breach­ing the Con­sti­tu­tion. They serve to high­light that Dut­ton’s case lies in a grey area, which is a far cry from his claim that his ad- vice “puts the ques­tion be­yond doubt”.

Even the find­ing of the gov­ern­ment’s chief lawyer, Solic­i­tor Gen­eral Stephen Don­aghue, that Dut­ton may sur­vive a High Court chal­lenge comes with heavy qual­i­fi­ca­tions, in­clud­ing that “it is im­pos­si­ble to state the po­si­tion with cer­tainty”. This is hardly a clean bill of health.

The case against Dut­ton has strength­ened over the week­end. Dur­ing the lead­er­ship con­test, ques­tions about his el­i­gi­bil­ity fo­cused on the mil­lions of dol­lars in gov­ern­ment sub­si­dies re­ceived by his child­care cen­tres. These would breach sec­tion 44 of the Con­sti­tu­tion, ex­cept that it is not clear the sub­si­dies are paid un­der an “agree­ment” be­tween the gov­ern­ment and the cen­tres.

What has since come to pub­lic at­ten­tion is a let­ter show­ing that Dut­ton’s child­care cen­tres have a sep­a­rate agree­ment un­der the in­clu­sion sup­port pro­gram with the com­mon­wealth to re­ceive $15,640 to hire a spe­cial needs teacher. 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.

No min­is­ter of the crown, let alone one charged with the na­tion’s se­cu­rity, should re­main un­der such a cloud. Un­for­tu­nately, there is no easy way to re­solve this. A sim­i­lar case arose ear­lier this year when the High Court was asked to de­ter­mine the el­i­gi­bil­ity of Coali­tion front­bencher David Gille­spie. Un­for­tu­nately, the court did not give an an­swer, stat­ing that it will hear mat­ters of dis­qual­i­fi­ca­tion only where they are lodged within 40 days of an elec­tion or are re­ferred by par­lia­ment.

The un­cer­tainty about Dut­ton’s po­si­tion means there is con­sid­er­able pres­sure on the House of Rep­re­sen­ta­tives to re­fer his case. This is a mat­ter of numbers, with the Coali­tion able to use its ma­jor­ity to block the move. It will hold the line un­less the grow­ing doubt over Dut­ton causes mem­bers to lose their nerve, or if for­mer prime min­is­ter Mal­colm Turn­bull con­vinces some­one to cross the floor.

This is a ter­ri­ble sys­tem. It per­mits pol­i­tics to trump the proper res­o­lu­tion of whether a mem­ber of par­lia­ment is breach­ing the law. A gov­ern­ment can shield its own mem­bers while us­ing the house to re­fer mem­bers of the op­po­si­tion to the High Court. This is hardly in the pub­lic in­ter­est or con­sis­tent with the rule of law.

Oth­ers are 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 on him be­ing a min­is­ter. Un­der sec­tion 64 of the Con­sti­tu­tion, apart from a three-month pe­riod of grace, he is en­ti­tled to serve as a min­is­ter only if he is a mem­ber of par­lia­ment.

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 or a min­is­ter at the time it was made. This form of col­lat­eral at­tack has been used with suc­cess in other ar­eas. How­ever, it is not so clear that the back­door tac­tic will be ef­fec­tive here given the High Court’s re­luc­tance to hear the Gille­spie mat­ter ear­lier this year. No doubt, though, many peo­ple will be mo­ti­vated to try.

In the mean­time, Mor­ri­son’s early days as Prime Min­is­ter are sub­ject to dis­trac­tion and le­gal ar­gu­ment about the stand­ing of one of his most se­nior min­is­ters. As in other re­spects, this is a con­tin­u­a­tion of the Turn­bull gov­ern­ment. Turn­bull spent the best part of this par­lia­ment deal­ing with the fall­out from mem­bers be­ing re­ferred to the High Court.

Mor­ri­son should en­sure that Dut­ton’s case is heard in the same way.

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