Hugh Riminton: Peter Dutton's Legal Advice Is Out Of Date

Gough Whitlam’s prime ministership ended in a constitutional crisis. Peter Dutton’s prime ministership would start with one.

Update: Peter Dutton has released updated advice from his lawyers to the effect that even with last month's changes to childcare payments their advice still stands.

On Thursday morning, as he launched his second challenge for the Liberal Party leadership, Mr Dutton released legal advice from Guy Reynolds SC.

After going through the issues, this advice concludes that Mr Dutton does not have a “pecuniary interest in an agreement within the meaning of Section 44 of the Constitution”.

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


In other words, his interests in two childcare centres in Brisbane do not put him in danger of being disqualified from Parliament.

But here is the glaring and most obvious issue.

The advice is dated December 4, 2017.

In the statement, on paragraph 8, it refers to the two mechanisms then existing for Commonwealth child care payments. They were called the Child Care Rebate and the Child Care Benefit. For the most part, these sums were paid directly to parents.

But neither of those two payments still exist.

Constitutional Cloud Emerges Over Peter Dutton's Business Interests

From July 2018, those systems were superseded by a new policy – the Child Care Subsidy. These payments are made directly to the child care centre, not to the parents.

The Guy Reynolds legal advice to Peter Dutton is OUT OF DATE.

This is not to say that even under the new arrangements Peter Dutton is automatically in breach of the constitution, and therefore disqualified from Parliament. But as numerous eminent lawyers have told us, he is at significant risk of being disqualified, if these issues were to go before the High Court.

As Professor Rosalind Dixon told us yesterday, “The  worst-case scenario is that as Prime Minister he is rendering decisions that are completely legally invalid and nothing he does as Prime Minister will stand under challenge in the High Court.”

As of this morning, Peter Dutton has still not altered his declaration of members’ interests, indicated that as of today, as he seeks the prime ministership, he remains exposed to issues that could plunge the nation into a constitutional crisis.

High Court Could Strike Down Decisions Of Potential PM

A final point.

Mr Dutton’s first statement today was to denounce the issue of his constitutional eligibility as “spurious and baseless campaign”.

“The timing on the eve of current events in politics is curious,” he says.

His wing-man, Tony Abbott, has publicly suggested this material was leaked from the Prime Minister’s office.

I can affirm again, our report, which blew this open on Monday, was the product of months of work and consultations with a number of legal experts. It is fundamentally a legal issue. We had no contact with any political party or any political office, other than Mr Dutton’s before putting the story to air.

We decided last week to go with it on Monday. The timing of political events that came on with such a rush was purely coincidental.