Advocates to examine whether rulings in clients’ cases will stand amid questions about the minister’s eligibility

This article is more than 2 years old

This article is more than 2 years old

The question of eligibility has continued to dog Peter Dutton as he hit out at suggestions he should change his investment portfolio and asylum seeker advocates said they were investigating ramifications for their clients of his past decisions in office.

Days after Malcolm Turnbull elevated the issue of whether the home affairs minister’s business interests in childcare centres could disqualify him from parliament, Labor warned on Monday that Dutton was “kidding himself” if he thought the question over his eligibility for parliament had been resolved.

Labor has questioned Morrison’s decision to reappoint Dutton to the home affairs portfolio, which will retain responsibility for asylum seekers and the Australian Border Force, despite immigration being granted to Liberal MP David Coleman.

As home affairs minister Dutton has made thousands of decisions, including whether to grant protection visas to asylum seekers and visa cancellations of migrants on character grounds.

Tony Abbott 'not retiring' and calls Peter Dutton a 'reluctant challenger' Read more

But there have been suggestions that those decisions might not stand should Dutton be found to have been ineligible for parliament.

Dutton was asked whether he would change his investment portfolio at a press conference on Wednesday. He was not asked directly about his interests in the childcare centres.

“What are you suggesting should change?” he asked a reporter. “My investments, I started out with nothing, worked in a butcher’s shop after school until I started university. I came from a working class family. I worked very hard to get what we’ve got.

“I have conducted all of our affairs in accordance with the ministerial standards. I have declared any investments that we have, and if you’re making a suggestion otherwise then I’d like you to detail them.”

Fairfax reported on Monday that the Refugee and Immigration Legal Centre executive director, David Manne, was investigating whether Dutton’s potential ineligibility had consequences for his clients.



A second group, the Sydney-based Refugee Advice & Casework Service, confirmed to Guardian Australia on Monday that it was also “considering the potential legal ramifications for our clients”.

Last year, Labor raised the prospect that ineligible ministers could have their decisions invalidated because of section 64 of the constitution, which states ministers can hold office for no more than three months “unless he [or she] becomes a senator or member of the House of Representatives”.



On Wednesday Labor released legal advice from Bret Walker SC suggesting that Dutton may be ineligible because his childcare interests may represent a direct or indirect pecuniary interest in an agreement with the commonwealth.

Dutton responded with his own advice that there was no agreement with the commonwealth, and the solicitor-general sided with Dutton although he said the conclusion he is eligible remains uncertain.

The shadow attorney general Mark Dreyfus told Guardian Australia the solicitor-general’s advice was “far from definitive”.

“If Mr Dutton thinks all questions have been settled, he is kidding himself,” he said.

Morrison's ministry giveth and taketh away as the Liberal healing begins | Katharine Murphy Read more

“Prime minister Scott Morrison has just sworn in Mr Dutton as home affairs minister when it isn’t clear if he is even eligible to sit in parliament – this is the very definition of poor judgement.”



While Labor’s advice suggests there is a constitutional cloud over Dutton, Guardian Australia understands the opposition does not believe section 64 can be used to test his eligibility in court, which could only hear a case before the next election if it were referred by parliament.

Graeme Orr, a professor of law at the University of Queensland, told Guardian Australia that a “collateral challenge” of Dutton’s eligibility to sit in parliament via a challenge against his ministerial decisions is “a furphy”, likening it to an attempt to have “the cart pull the horse”.

Orr noted that the high court has held that when MPs are found ineligible the decisions of parliament on which they voted are not reopened, suggesting the result would be the same for ministerial decisions.

On the substantive issue of section 44, Orr sided with Dutton and the solicitor-general Stephen Donaghue that there was no “agreement with the commonwealth”.

Dutton’s office was approached for comment.