Home Affairs Minister Peter Dutton has revealed he has quietly relinquished any financial interest in a family trust linked to claims he is ineligible to sit in Parliament despite insisting he was never in breach of the Constitution.
Mr Dutton’s office confirmed the move following inquiries from The New Daily he had removed himself from the trust before the election.
The decision means the High Court can never be asked to determine if he was ineligible to sit in the last Parliament because he was elected to the current one without a cloud over his head.
Confirmation of the change follows explosive revelations of Malcolm Turnbull’s attempts to involve the Governor-General in the question of Mr Dutton’s eligibility during the leadership fracas last August.
A spokeswoman for Mr Dutton said he had made the decision to “silence those who are politically motivated”, not because he believed he was ineligible to sit.
“The minister has received two unambiguous legal opinions from leading barristers specialising in constitutional law, including former Solicitor-General David Bennett AC QC, which advised he was not in breach of section 44,” she said.
“These legal opinions are supported by the Solicitor-General, who concluded in his legal advice that in his opinion the better view was that the Minister was not in breach of section 44.
“Nonetheless, to silence those who are politically motivated and continue to raise this; prior to the minister’s nomination at the May election, he formerly renounced any interest in the trust in question.”
Mr Turnbull raised fresh questions about Mr Dutton’s eligibility to sit in Parliament, confirming he believed the Governor-General might have been forced to intervene if Mr Dutton had won last year’s Liberal leadership ballot.
The former prime minister responded on Thursday to revelations of a showdown with Attorney-General Christian Porter over Mr Dutton’s eligibility at the height of August’s leadership drama.
The high-stakes dispute, which threatened to spark a constitutional crisis, is revealed for the first time in two new accounts of the August 23, 2018, clash between Mr Turnbull and Mr Porter.
It was sparked by long-running concerns that a childcare business owned by Mr Dutton’s wife received government subsidies, meaning the Home Affairs Minister could be in breach of Section 44 of the Constitution.
The Australian‘s editor-at-large, Paul Kelly, wrote on Thursday that Mr Porter arrived at the August 2018 showdown with Mr Turnbull with a resignation letter in his pocket, anticipating he might need to quit as attorney-general on the spot.
During the meeting, Mr Porter warned Mr Turnbull that if he, as Prime Minister, said that Governor-General Sir Peter Cosgrove would not be able to commission Mr Dutton in the role, Mr Porter would publicly rebuke him as “wrong at law”.
“If you go out and say that publicly, then I will feel obliged to reject that position at law,” Mr Porter said.
According to The Australian, “Mr Turnbull shot back, ‘You do not have any role advising the Governor-General’.
Mr Porter told him: “If you want my resignation, I will offer it.”
Mr Turnbull, who had been told a day earlier by Mr Porter that he should resign as PM, replied with sarcasm.
“Oh no, I wouldn’t want to lose my loyal attorney-general,” he said.
During the week of 24 August 2018 there was advice from leading constitutional lawyers Bret Walker that Dutton was ineligible to sit in the Parliament and thus ineligible to be a Minister, let alone Prime Minister. I ensured we sought the advice of the Solicitor General.
— Malcolm Turnbull (@TurnbullMalcolm) June 27, 2019
On Thursday, Mr Turnbull said Mr Porter’s stance was “nonsense”. He insisted that seeking legal advice on possible breaches of section 44 was the only responsible course of action.
“The discretion to swear in a person as Prime Minister is vested in the Governor-General,” he said.
“The proposition advanced by Mr Porter that it is none of the G-G’s business whether the would-be PM is constitutionally eligible is nonsense. The G-G is not a constitutional cypher.”
Mr Turnbull said he had had advice from constitutional lawyer Bret Walker during the week of August 24, 2018, that Mr Dutton was ineligible to sit in the Parliament and “thus ineligible to be a minister, let alone prime minister. I ensured we sought the advice of the Solicitor-General”, he said.
“The S-G’s advice was delivered on the morning of Friday 24th and duly published. His advice was that ‘the better view’ was that Dutton was eligible but it was ‘impossible to state that position with certainty’ and there was ‘some risk’ the High Court would rule he was ineligible,” Mr Turnbull said.
“I took the responsible course of action, obtained the necessary advice, published it and the party room was informed when it made its decision to elect Mr Morrison, rather than Mr Dutton, as leader.”
According to The Australian, Mr Turnbull implied during the talks that he had already discussed the issue with Sir Peter.
On Thursday, the Governor-General’s office declined to say whether any informal discussions had occurred.
“Conversations between the Governor-General and the Prime Minister are necessarily private and confidential,” a spokesperson said.
“I can, however, confirm that no formal advice was sought or provided to the office in relation to any eligibility issues.”
The events are also detailed in a new book on the Liberal leadership turmoil by David Crowe, called Venom: Vendettas, Betrayals and the Price of Power.
This account confirms that Mr Turnbull told Mr Porter early in their meeting that “the Governor-General would not commission” Mr Dutton if he won the leadership ballot.
When Mr Porter asked: “Has the G-G told you this?”, Mr Turnbull either bluffed or had spoken privately to Sir Peter.
“I know the Governor-General and I know this would be his position,” he said.
A day earlier, Senate leader Mathias Cormann was shocked during a meeting with Mr Turnbull when the Prime Minister “motioned to ring Sir Peter directly to get the Governor-General on the phone to confirm” that Mr Dutton could not be commissioned as prime minister.
He did so during a dramatic confrontation with senior ministers over the leadership when they quit the frontbench.
“He can tell you himself,” Mr Turnbull said to senators Cormann, Mitch Fifield and Michaelia Cash.
“Let’s not be crazy, we don’t need to involve the Governor-General,” Senator Cormann replied, according to The Australian.
Mr Porter said he wrote to Mr Donaghue, stating that no members of the executive government nor the Parliament were to contact or correspond with the Solicitor-General about his advice. This was to ensure that neither Mr Turnbull nor Mr Dutton approached Mr Donaghue.
But the Solicitor-General subsequently told Mr Porter that Mr Turnbull had contacted him anyway – to check on the timing of Mr Donaghue’s advice and the formulation of Mr Porter’s request.
In Parliament, Labor was also pressing the issue of Mr Dutton’s eligibility. A motion to refer his eligibility to the High Court was defeated on the floor of parliament in a 69-68 vote.
Mr Dutton ultimately lost the Liberal leadership ballot to Scott Morrison, 45 votes to 40 and the question of his eligibility to serve as Prime Minister never arose. However, it is likely to return following Thursday’s revelations.
On Thursday, Mr Dutton praised Mr Porter’s courage in standing up to Mr Turnbull.
“Christian Porter is a person of great integrity and decency,” he said.
“He looked at what needed to be done, as the Attorney-General of our country, and he saw inappropriate behaviour taking place. He called it out, he stood up to it and, you’re right, it was a gutsy move and I think he deserves full credit for it.”
Labor leader Anthony Albanese said Mr Dutton should refer himself to the High Court.
“These are very serious revelations … that the then-Prime Minister thought they were so serious that they would prevent Peter Dutton from being sworn in, if he was elected leader of the Liberal Party, as Prime Minister,” Mr Albanese told Sky News.
Mr Turnbull is writing his own account of the final, dramatic week of his leadership. His book is due out later this year.