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‘Not incapable’: Dutton cleared by S-G
Peter Dutton, the Member for Dickson and former Home Affairs and Immigration minister, has been deemed “not incapable” to sit in Parliament by Solicitor-General Stephen Donaghue, clearing the path for his potential ascension to the prime ministership later today.
Jerome Doraisamy
The question put to the Solicitor-General – by Attorney-General Christian Porter – was whether Mr Dutton’s interests in the RHT Family Trust, including but not limited to the Camelia Avenue Childcare Centre, meant he was able to be validly elected by his constituents.
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The “beneficial interest” as a “beneficiary” was declared by Mr Dutton in his House of Representatives ‘Statement of Registrable Interests to the 45th Parliament’ on 12 October 2016.
Mr Donaghue determined that Mr Dutton’s interests in the Trust meant he was “not incapable” of sitting in Parliament, but that at the same time, “it is impossible to state the position with certainty”.
In a statement, the Attorney-General said: “I have today received advice from the Solicitor-General regarding the eligibility of Mr Peter Dutton to sit as a Member of the House of Representatives. That advice has been provided to both the Prime Minister and to Mr Dutton.”
The announcement follows advice tweeted out by Mr Dutton yesterday from David Bennett QC, which purported to clear the Member for Dickson of any questions of ineligibility.
“In my opinion, however widely [the term] ‘agreement’ is construed, it cannot extend to a situation in which the person obtains a statutory entitlement without any form of contract or a contract-like relationship. Services performed by childcare centres are not performed ‘for’ the Commonwealth,” Mr Bennett wrote.
“The Commonwealth merely subsidises clients who contract for those services and, on their request, pays the subsidy directly to the provider. To describe this as an ‘agreement’ between the service provider and the Commonwealth stretches the word beyond any reasonable interpretation.”
In mid-April of this year, barristers Bret Walker SC and James Mack had put forward an alternative opinion on the matter, via Maurice Blackburn Lawyers, noting that although there are legislative and regulatory intricacies to the payments made by the Commonwealth, at their core, they are made on behalf of the Commonwealth to an entity in which Mr Dutton has declared that he has a relationship.
“The payment of over $2 million to the trustee of the Family Trust means that Mr Dutton as a so-called beneficiary has a pecuniary interest. In our opinion, it is clearly arguable that this at least represents an indirect pecuniary interest and possibly also a direct pecuniary interest within the meaning of s44(v),” they opined.
“As such, it follows that, in our opinion, Mr Dutton was incapable of being chosen for the 45th Parliament and is not entitled to continue to sit in the 45th Parliament.”
