PETER DUTTON'S ELIGIBILITY TO SIT IN PARLIAMENT
* Advice has been provided by Solicitor-General Stephen Donaghue to the prime minister and Peter Dutton following concerns about a possible breach of section 44 of the Constitution.
* At issue was the Camelia Avenue Child Care Centre in Brisbane, operated by RHT Investments in its capacity as trustee for RHT Family Trust of which Mr Dutton is a beneficiary.
* "On the facts set out below, in my opinion, the better view is that Mr Dutton is not incapable of sitting as a member of the House of Representatives by reasons of s 44(v) of the Constitution."
* Donaghue found there was no "agreement with the public service of the Commonwealth" involved in the dealings between RHT Investments and the federal government "therefore no agreement in which Mr Dutton could have an indirect pecuniary interest by virtue of his status as a beneficiary of the RHT Family Trust".
* However, there were two possible bases on which such an agreement "could be argued to exist".
* The first of these is whether the process by which RHT Investments applied to become, and was approved as, a provider of child care services, constituted an "agreement" under s44(v) of the Constitution. But Donaghue argues it's not an agreement when one party (the government) is legally required to grant the approval if the proper conditions are met.
* The second is the process by which the child care subsidy is paid by the federal government into a bank account nominated and managed by RHT Investments. It could be considered an "agreement" but Donaghue says the child care provider is merely a "conduit" to pass on the money to the parent who applied for it.
* Donaghue says it is "impossible to state the position with certainty".
* He gives three reasons: the facts are unlike anything the High Court has previously assessed; there may be "further facts" of which he was unaware; there remains "significant division of opinion" in the High Court as to how s 44 (v) operates.
* The Solicitor-General was not provided with any information on the amount of money received by the child care centre or whether it was paid directly into the RHT Investments account.
(Source: Advice from Solicitor-General Stephen Donaghue)
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