Member for Isaacs

Adjournment speech - Peter Dutton's eligibility - Mark Dreyfus QC MP

17 September 2018

Federatoin Chamber, Parliament House.






Members of the government, including Mr Dutton and the Prime Minister, have claimed that the Solicitor-General's legal advice resolves the question of whether the member for Dickson was capable of being chosen as a Member of Parliament under section 44(v) of the Australian Constitution. The Solicitor-General's advice does no such thing. We know that Mr Dutton is a beneficiary of a family trust, and we know that the corporate trustee of that family trust operates two childcare centres, at least one of which is operated on behalf of Mr Dutton and the other beneficiaries of the family trust. We also understand that those two childcare centres have received over $5.5 million in Commonwealth childcare subsidies since 2014. In relation to Commonwealth childcare subsidies, the Solicitor-General suggested that the better view was that those payments did not in themselves make Mr Dutton constitutionally ineligible to sit as an MP. That is very far from an unequivocal statement of legal support.

The Solicitor-General himself qualified his already equivocal opinion by noting that (1) even though the operation of section 44(v) is 'highly fact dependent', he was provided with 'very little factual information'; (2) the facts, such as they are known, are 'unlike those that have previously been assessed against section 44(v)' by the High Court; (3) there may be further facts of which the Solicitor-General is unaware; and (4) it is difficult to predict how the High Court would analyse the facts in this case. It is therefore unsurprising that the Solicitor-General clearly acknowledged:
I consider there to be some risk that the High Court might conclude that there is a conflict between Mr Dutton's duty as a parliamentarian and his personal interests.

Separate to the childcare subsidies, we also know that there exists a funding agreement between the childcare centre held by Mr Dutton in trust and the Commonwealth. Under that agreement, the Commonwealth pays one of the childcare centres $15,640 to fund a teacher's salary. In relation to that agreement, the Solicitor-General stated:
it is not possible to reach a definitive conclusion on that matter without more detailed factual information.

Unbelievably, this is the legal advice that Mr Dutton and the Prime Minister are relying on to claim that there is no question about Mr Dutton's eligibility to sit in the parliament and that it is unnecessary for the High Court to rule on this matter. This arrogant government is also ignoring the views of three of Australia's foremost constitutional expertsBret Walker QC, Professor Anne Twomey and Professor George Williams. All three have stated unequivocally that only the High Court can resolve the doubt around Mr Dutton's eligibility.

And it is not just Mr Dutton's job that is at stake in this debate. According to another of Australia's most eminent counsel, Matthew Collins QC, the validity of every single decision made by Mr Dutton as a minister since 19 October 2016 will be vulnerable to legal challenge until Mr Dutton's eligibility to sit in parliament is authoritatively determined. Given that Mr Dutton has made literally thousands of decisions on immigration matters and on national security matters over that time period, this could throw the entire immigration system into chaos and cast doubt on a number of important national security decisions made by Mr Dutton. Apparently, this is a risk that the Prime Minister is willing to take. When asked this morning whether he would support calls to refer Mr Dutton to the High Court, the Prime Minister has said that he will make decisions based on what he believes to be 'in the national interest'.

The Australian people know that Mr Dutton sometimes confuses his personal interest with the national interest, and, by refusing to refer Mr Dutton, it appears as though Prime Minister Morrison is guilty of making the same mistake. How can the Prime Minister seriously maintain that it is not in the national interest to have certainty that decisions made by the minister in charge of Australia's national security are legally valid? The Prime Minister has said that people have had enough of lawyers' picnics on these sorts of issues. The Prime Minister should not so lightly dismiss the requirements of our Constitution. He should respect our Constitution and end the doubt about Mr Dutton's eligibility to sit in this parliament once and for all by referring Mr Dutton to the High Court.