The Solicitor General has ruled that Peter Dutton is “not incapable” of sitting in Parliament, despite the questions that have been raised over his eligibility under the Constitution.
“On the facts set out below, in my opinion the better view is that Mr Dutton is not incapable of sitting as a member of the House of Representatives by reasons of s44(v) of the Constitution” #auspol pic.twitter.com/CJvUWWLacC
— Political Alert (@political_alert) August 23, 2018
This clears the big hurdle which Dutton had to clear in order to challenge Malcolm Turnbull for the leadership of the Liberal Party and by extension the nation.
What’s all this about? You might recall the absolute carnage caused by section 44 of the Australian Constitution, which knocked down a whole slew of parliamentarians who still had dual-citizenship. The same section also bans parliamentarians from benefitting financially from the Commonwealth. The allegations hold that because Dutton is the beneficiary of a family trust which owns a few childcare centres which receive government subsidies, he fails that test.
Stephen Donaghue‘s advice spells out that “the better view” is that Dutton is “not incapable” of sitting in Parliament. Without descending too deep into the legal particulars, the vibe is that there is no explicit agreement between RHT Investments – the aforementioned family trust – and the Commonwealth public service.
That being said, the advice says that “it’s impossible to state with certainty” whether Dutton is 100% in the clear because the High Court simply hasn’t ruled on anything like this in the past. The Solicitor-General freely admits that if this case actually went to the High Court, Dutton could be found ineligible.
Here’s a key bit of legalese for you to chew on:
For those reasons I consider there to be some risk, particularly in light of the substantial size of the payments that appear to have been made by the Commonwealth to RHT Investments, that the High Court might conclude that there is a conflict between Mr Dutton’s duty as a parliamentarian and his personal interests.
That means this cloud could rest over his head for some time – even if he does become Prime Minister. Leading constitutional expert George Williams shot out a quick tweet pointing out that this matter can really only be settled by going to the High Court with it.
The SG’s advice is spot on. It is more likely that Peter Dutton is not disqualified, but this cannot be stated with certainty. As the SG says, there is a risk he is in breach of section 44. Only the High Court can resolve this cloud of doubt.
— George Williams (@ProfGWilliams) August 24, 2018
So there’s that. This was the biggest hurdle holding the Liberal spill motion back. It’s probably on!
