Morrison Kept 'In The Loop' As Dutton Moves To Avoid A High Court Challenge

Both Scott Morrison and Peter Dutton claimed Dutton’s family childcare interests posed no threat to his being in Parliament.

Now, the PM has revealed the pair were in repeated contact as the Home Affairs Minister moved to extinguish the risk.

In a 10 News First exclusive, the Prime Minister has given an insight into the level of concern that Peter Dutton could face High Court action.

“It was a matter that he was attending to,” Morrison said. “I was kept updated of what he was doing.”

Scott Morrison G20
Prime Minister Scott Morrison speaks to the media during a press conference at the G20 summit in Osaka, Japan. Photo: AAP.

On social media as early as 2017, a number of people had raised questions about the Brisbane childcare centres operated by Dutton’s wife Kirilly in which he had an interest through a family trust.

The childcare centres, as is normal, received funding from the Commonwealth.

READ MORE: Constitutional Cloud Emerges Over Peter Dutton's Business Interests

Section 44(v) of the Constitution rules a person ineligible to sit in Parliament if they have “any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth.”

In August last year, as the leadership tensions against Malcolm Turnbull were coming to a head, 10 News First revealed that two senior constitutional law professors, Anne Twomey from the University of Sydney and George Williams from UNSW, had provided written opinions that Dutton could be ineligible as an MP.

This was a significant escalation.

Dutton said he had his own legal advice that put him in the clear.

Peter Dutton
Home Affairs Minister Peter Dutton has avoided potential Section 44 conflict by renouncing his interest in the trust which operates two childcare centres in Brisbane. Photo: AAP.

But Prime Minister Turnbull seized on the Twomey/Williams opinions to argue against a leadership change to Dutton. Labor also produced advice from Bret Walker SC indicating Peter Dutton could be ineligible.

Attorney-General Christian Porter, under frantic urging from Turnbull, sought the view of the Solicitor-General Stephen Donaghue.

This top official source of independent advice for the government found there was “some risk” Dutton was ineligible but “the better view” was that he was “not incapable” of being an MP.

Every senior lawyer acknowledged the only clear decision would have to come from the High Court itself.

Peter Dutton used his own vote in Parliament against a Labor motion to refer him to the High Court. It went down by a single vote, 69-68.

READ MORE: Dutton's New Childcare Centre Raises Fresh Section 44 Issues

Dutton was returned in his Queensland seat of Dickson at the May election but he would have been vulnerable to a High Court challenge brought by any member of his electorate in the 40 days after the return of the writs (June 28).

Peter Dutton was returned to his Queensland seat of Dixon in the May election. Photo: AAP.

Without publicly declaring his hand, the former Queensland policeman was already hard at work fixing the problem.

Scott Morrison defeated Peter Dutton in the final leadership vote 45-40. For the first time we now know he was in the loop as the Home Affairs minister worked things through with his legal and business advisers.

Dutton went public last week, revealing he had renounced his interest in the family trust that own the childcare centres before nominating for the most recent election.

That decision saves Dutton from potentially being stripped of his Parliamentary position – as Barnaby Joyce and others were over citizenship. It also removes the danger of a by-election that could potentially have reduced the government to a bare 76 seats in the 151 seat House of Representatives.

“The issues now have been put beyond doubt,” Scott Morrison said. “And I am pleased they have been.”

But for Peter Dutton it still burns. Without Turnbull’s questioning of his constitutional status, Dutton might have received more of the party room vote.

“It was a delaying tactic to damage me,” Dutton told 2GB, “which he was able to do.”

Additional research by Kate Doak.