He said the Solicitor-General's advice would enable the party room, and Mr Dutton, to be "informed" ahead of the vote. Earlier, a motion to refer Mr Dutton's eligibility to the High Court was voted down 68 - 69 in the House of Representatives. Mr Dutton has released the legal advice he commissioned late last year on his eligibility to sit in Parliament, which he says clears him of accusations that he is in breach of the constitution. The advice, written in December by Sydney silk Guy Reynolds SC, says the then immigration minister had not fallen foul of section 44, despite his family's childcare businesses having received childcare rebates and benefits directly from the government. Mr Dutton said in a statement there had "never been any doubt" about his eligibility to sit in Parliament, dismissing allegations to the contrary as being part of a "spurious and baseless campaign".

Peter Dutton has released legal advice he says shows he is eligible to sit in Parliament. Credit:Dominic Lorrimer Loading It comes after Fairfax Media yesterday revealed the childcare company operated by Mr Dutton's family trust had received more than $5.6 million in Commonwealth funding since 2014, prompting the Attorney-General to refer the matter to the Solicitor-General for advice. Just after noon on Thursday, the Senate voted to refer Peter Dutton’s controversial intervention in the immigration case of two au pairs in 2015 to a Senate inquiry. As the House of Representatives dealt with a suspension motion, senators voted 34 - 28 in favour of the inquiry, which will examine two separate decisions by Mr Dutton to overrule his department's denial of entry to the young women in 2015.

Mr Dutton said his legal advice on his family's childcare centres was "unequivocal" that he was not in breach of section 44, which provides that any person who has any direct or indirect pecuniary interest in any agreement with the Commonwealth is incapable of being chosen or of sitting as a senator or MP. "One important matter to note in relation to the statutory scheme is that under the scheme payments can be made on occasion directly to approved childcare services," Mr Reynolds, whose previous clients include disgraced former NSW Labor minister Eddie Obeid, wrote in the advice. "I am instructed that direct payments were made under the statutory scheme by the Commonwealth to the trust of the RHT Family Trust from time to time." But, he said, these payments were "not paid pursuant to any contract with these entities", and therefore did not result in an "agreement" being formed within the meaning of section 44. Mr Dutton said the timing of the scrutiny of his family business was "curious" given that it emerged "on the eve of current events in Australian politics".

The former home affairs minister released an updated legal advice late on Thursday morning, in which Mr Reynolds stated that his advice "remains the same" in light of the July 2 changes to the government's childcare assistance scheme. It came after constitutional law expert Anne Twomey suggested the new rules may have some bearing on Mr Dutton's eligibility. An alternative legal advice, prepared by Mr Reynolds' Phillip St colleague Bret Walker SC for Labor in April this year, found Mr Dutton was likely "incapable of being chosen for the 45th Parliament and is not entitled to continue to sit in the 45th Parliament". The advice, obtained exclusively by Fairfax Media on Wednesday, reads: "The resolution of these issues, for the reasons that follow, leads us to the conclusion that it is clearly arguable that Mr Dutton is not eligible to so sit in the 45th Parliament and potentially not eligible to have been chosen for the 45th Parliament. We are of the view that this is the preferable argument." Sydney University constitutional law professor Anne Twomey said on Thursday morning that both silks had only addressed the childcare rebate system that existed before July 2.

"At most, they address whether or not Mr Dutton was disqualified before the new scheme came into effect - but neither purports to say whether or not Mr Dutton is disqualified under the new scheme," Professor Twomey said. "If, of course, if he was disqualified under the old scheme, that disqualification would continue now. "If he was not disqualified under the old scheme, that does not preclude his disqualification under the current scheme." Childcare centres now receive direct subsidies from the Commonwealth, rather than having the money provided to parents who were then able to spend it on childcare services. Previously, some parents chose to have their rebates paid directly to centres, but it was not mandated by the statutory scheme.