Former PM says Malcolm Turnbull has a duty to ‘protect the team – even the people who might be your critics’

This article is more than 2 years old

This article is more than 2 years old

Tony Abbott has launched a broadside at Malcolm Turnbull, accusing him of failing to defend Peter Dutton’s eligibility to sit in parliament over claims his business interests in childcare centres may breach the constitution.

Abbott suggested the story may be an attempt by Turnbull – who he called a “despairing incumbent” – to fend off Dutton after narrowly surviving a leadership ballot on Tuesday and as the member for Dickson regroups for a second possible leadership challenge.

In question time on Wednesday, Turnbull revealed the government does not yet have advice from the solicitor general on whether Dutton has an “indirect pecuniary interest” in an agreement with the commonwealth that would make him ineligible to sit in parliament.

After question time the attorney general, Christian Porter, announced he would seek the solicitor general’s advice on the constitutional cloud hanging over Dutton.

On Monday a Ten News report first revealed that Dutton and his wife are beneficiaries of a trust that operates childcare centres and receives federal government subsidies then paid to parents.

Constitutional law experts Anne Twomey and George Williams said that there is an arguable case that Dutton is in breach of section 44(v) of the constitution.

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Turnbull told the lower house the government did not have advice from the solicitor general as “the matter has only arisen in very recent times, we are not in possession of all of the facts relating to the arrangements between the childcare centre and the member for Dickson’s trust”.

Asked if he would refer his leadership opponent to the high court, the prime minister replied that Dutton advised him he has legal advice he is not in breach of section 44.

“I have no reason, therefore, to believe that he is,” Turnbull said.

Labor called on the government to release the advice, which Turnbull said he had not read. Dutton claims it “clearly states” his business interests are not in breach of the constitution.



After question time Abbott told 2GB Radio it was “very strange” that Turnbull had not declared the matter had been considered and there is “QC’s advice that Peter Dutton’s position is absolutely secure”.

Abbott said people had wondered whether the story was “dirty tricks from a Labor party desperate not to have Peter Dutton as its opponent” or “just one last throw from a despairing incumbent” but declared: “I just don’t know.

“When you’re the team leader you protect the team – even the people who might be your critics at this time. That’s your job – to protect the team.”

Earlier, the workplace relations minister, Craig Laundy, suggested Dutton release the advice to “allay concerns” that there would not be “collateral damage down the track” by being ruled ineligible.

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Regardless of the content of legal advice, Dutton’s eligibility can only be determined by the high court, which would require a referral by the House of Representatives where the Coalition has a slim majority.

On Wednesday a Fairfax Media report based on education department figures produced under freedom of information revealed the two childcare centres had received a total of $5.6m since 2010.

There is no suggestion the businesses received preferential treatment of any kind but the lack of cases testing the limits of section 44(v) leaves it unclear whether ordinary federal subsidies paid to childcare centres could put Dutton in breach.

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Under a ruling disqualifying the Family First senator Bob Day in 2017 on the same grounds, the high court made clear that a parliamentarian need not be a party to a contract with the commonwealth to have an “indirect pecuniary interest” in an agreement.

In the February 2017 hearing, Day’s counsel warned the court against adopting a broad definition of an indirect pecuniary interest on the basis it could knock out the eligibility of many senators and members.

Dutton’s case differs from Day’s because Day had an arrangement that would allow him to benefit from the rental payments for his own electorate office whereas childcare subsidies would apply to all childcare centres.