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Malcolm Turnbull lobbies PM to refer Peter Dutton to high court over eligibility

The Guardian logo The Guardian 12/09/2018 Katharine Murphy

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Malcolm Turnbull is lobbying his former colleagues to refer the man who challenged him for the Liberal party leadership, Peter Dutton, to the high court in order to confirm his eligibility to sit in parliament.

Government sources have confirmed the approaches to Guardian Australia and the former prime minister, who is currently in New York, took to social media on Wednesday night to confirm he had been lobbying colleagues, including Scott Morrison.

Malcolm Turnbull’s intervention in the case of Peter Dutton comes as the minister faces continued questions about granting visas to au pairs. © AFP/Getty Images Malcolm Turnbull’s intervention in the case of Peter Dutton comes as the minister faces continued questions about granting visas to au pairs. Turnbull’s intervention, which comes as Morrison is attempting to steady the government after weeks of turmoil, follows questioning by Labor in parliament about whether Dutton had declared a family business interest in childcare centres and opted out of relevant cabinet deliberations.

Morrison was asked by Labor on Wednesday whether he would present advice to parliament sought by Turnbull on the question in his final days as prime minister. Morrison told the House he would make inquiries and report back.

Dutton is a beneficiary of a trust that operates childcare centres that receive federal subsidies. Constitutional law experts Anne Twomey and George Williams have said those facts create an “arguable case” he is ineligible to sit in federal parliament.

During the bitter civil war that erupted between the conservative backed Dutton and Turnbull over the party leadership, Turnbull elevated questions over the challenger’s eligibility to sit in parliament as a central concern.

Turnbull declared the issue of the home affairs minister’s eligibility must be resolved before Dutton could take the party leadership. “This is a very, very significant point,” Turnbull told reporters at the height of the power struggle. “I cannot underline too much how important it is that anyone who seeks to be prime minister of Australia is eligible to be a member of parliament.”

A legal opinion from the commonwealth solicitor-general released on the day of the leadership spill that delivered Morrison the prime ministership said Dutton was “not incapable” of sitting as a member of parliament, but there is still “some risk” the high court might find he has a conflict of interest.

Stephen Donaghue’s advice concluded there is “some risk” that the high court might find Dutton has a conflict of interest, in part due to the “substantial size of the payments”, referring to the subsidies earned by the childcare centres. He said it “is impossible to state the position with certainty” that Dutton is eligible.

Donaghue warned that application of section 44(v) of the constitution – which disqualifies people with a “direct or indirect interest in an agreement” with the commonwealth – is “highly fact dependent”.

“However, for a variety of reasons, I have been briefed with very little factual information.”

Donaghue said Dutton’s case was impossible to predict because the facts are “unlike those that have previously been assessed” by the high court and there is “significant division” on the court about section 44(v).

Labor has made an attempt to refer Dutton to the high court to have his status resolved, but Morrison has dug in behind the home affairs minister, who is also in the middle of a controversy over the use of his ministerial discretion in granting au pairs tourist visas.

Labor steered clear of questioning Dutton about the au pair controversy in the House on Wednesday after a dramatic escalation the day before when the minister unleashed on Quaedvlieg, branding him the Labor party’s Godwin Grech and accusing him of “grooming” a “girl” 30 years his junior.

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