SUBJECTS: Peter Dutton’s eligibility
THE HON MARK DREYFUS QC MP
SHADOW MINISTER FOR NATIONAL SECURITY
MEMBER FOR ISAACS
THURSDAY 6 SEPTEMBER 2018
SUBJECTS: Peter Dutton’s eligibility
MARK DREYFUS, SHADOW ATTORNEY-GENERAL: It’s now clear, from other documents which have been written about in the media, that Peter Dutton must be referred to the High Court of Australia. His eligibility to sit in Parliament is completely in doubt, and it’s not simply me saying it. A whole range of constitutional experts have said that only the High Court can resolve the doubt that remains over Mr Dutton’s eligibility to sit in the Federal Parliament. It’s a matter of tremendous concern obviously because Mr Dutton is a senior minister. His eligibility to sit in Parliament if he is ineligible will affect the validity of thousands of decisions that he has made as Immigration Minister, as Minister for Home Affairs. It’s a significant matter also because this is a government that is hanging by a thread to control of the House of Representatives. It’s a government that is governing with a one seat majority. It’s extremely significant that one of its most senior members, Peter Dutton, is quite probably ineligible to sit in the Parliament and the advice that was obtained by the Solicitor-General does not clear this up. The Solicitor-General himself made it clear that the matter remains in doubt, that the state of the law is such that only the High Court can determine conclusively whether or not Peter Dutton is eligible to remain in the Parliament. Labor says that Peter Dutton should be referred to the High Court of Australia because the High Court of Australia needs to resolve the question of his eligibility. Any questions?
JOURNALIST: Mr Dreyfus can you just explain I guess to the non-constitutional lawyers here in simple terms, how this agreement for the special needs teacher differs from the childcare subsidies the Solicitor-General and Mr Dutton’s lawyers said don’t put him in breach of section 44? How is this different?
DREYFUS: Without wanting to be too technical about it, the prohibition in the constitution is directed at making sure that there are no conflicts of interest between members of Parliament carrying out their duties as members of Parliament, and their private interests. What has occurred here is that Mr Dutton has an interest in two childcare centres and one of the questions that several legal advisors, several comment pieces that have been written about his eligibility have referred to, is whether or not the participation of childcare centres in receiving millions of dollars of Commonwealth funds was in fact a breach of section 44 of the constitution. This further document that has come to light makes it clear that there is an agreement between Mr Dutton’s childcare centres and the Commonwealth, and that’s why there is, we think it’s clear, a breach of section 44 of the constitution. So that’s the particular point, it’s about whether or not the constitution refers to an agreement with the public service of the Commonwealth. What’s now come to light is something that on any view is an agreement with the public service.
JOURNALIST: Section 44 aside though wouldn’t you agree the childcare centre has done the right thing by employing this special needs teacher? And now I guess Labor is saying, you’re demanding Mr Dutton be kicked out because of this, do you think the public would buy that as the reason?
DREYFUS: I don’t think we’re even going to the question of what the purpose of the Commonwealth funds is. But the prohibition on the constitution is absolutely clear. If Mr Dutton as a member of Parliament has a direct or indirect interest, if he is in a contract with the Commonwealth, then he is ineligible. Going back to the Day case, which is really what has created the uncertainty in the law, and has opened the possibility of Mr Dutton being ineligible, the Day case was about the provision of an electorate office for Senator Day. But every Senator, every member of Parliament needs to have an electorate office so no-one is doubting that there is some benefit to the Commonwealth of that expenditure, but that wasn’t the question. The question was whether or not Mr Day had direct or indirect pecuniary interests and the High Court said he did, and therefore he wasn’t eligible to sit in Parliament. So the High Court – it’s that question that needs to be resolved by the High Court in relation to Mr Dutton.
JOURNALIST: Can you honestly say though if this were a Labor MP facing these accusations, you’d be asking for a similar, I guess, referral to the High Court?
DREYFUS: We’ve made it absolutely clear that where there is doubt over the eligibility of any member of Parliament to sit in Parliament because they may have breached section 44 of the constitution, then that matter should be determined by the High Court of Australia and that’s been a very consistent position. It’s also been a consistent position from the former Prime Minister Mr Turnbull who said in absolutely direct terms that it should not matter from which party the member concerned comes, if there is a doubt about their eligibility to sit in Parliament then they should be referred to the High Court. Regrettably, the current Prime Minister Mr Morrison seems to be wanting to protect Mr Dutton in some way. I think we’re in no doubt about who is calling the shots in this government, it’s probably not Mr Morrison, it’s Mr Dutton. And perhaps Mr Abbott.
JOURNALIST: Do you think it’s time to do something about section 44?
DREYFUS: We’ve got a section here in the constitution which Peter Dutton, a very senior minister in this government seems to be in breach of, whether or not there needs to be a change to section 44 be it the citizenship section or these conflict of interest provisions, that’s a question for another day. Right now, the constitution must be complied with.
JOURNALIST: So will you be breaking with tradition and doing a partisan referral? Do you have the numbers?
DREYFUS: I don’t think it’s a matter of breaking with tradition. The House of Representatives is entitled under the Constitution to refer any of its members to the High Court of Australia sitting as the Court of Disputed Returns to resolve questions of eligibility to sit in Parliament. Under the arrangement that was come to between the parties last year at the time that there was a disclosure regime set up for the purposes of citizenship concerns, it was agreed that on our side, the manager of Opposition Business could put a referral motion to the House for any member whose eligibility is in doubt. We did that in the last sitting week. Regrettably, the government used its numbers to vote to produce a result that by 69 votes to 68 the House refused to refer Peter Dutton to the High Court of Australia. But now, these further questions having arisen, we think it’s beyond doubt that Peter Dutton needs to be referred to the High Court of Australia so that his eligibility can be determined once and for all.