JUST IN: The advice says @PeterDutton_MP is ‘not incapable’ of sitting as a member of the House of Representatives.
FULL COVERAGE: @Foxtel channel 103 & https://t.co/UFTF06werJ #auspol #libspill pic.twitter.com/7E2cblVDBT
— Sky News Australia (@SkyNewsAust) August 23, 2018
Doesn’t sound to good to me:
While I consider the position summarised above to represent the better view, it is impossible to state the position with certainty.That is so for three reasons. First, the facts concerning Mr Dutton are unlike those that have previously been assessed against s44(v). Second, as I note below, there may be further facts of which I am presently unaware. Third, there is a significant division of opinion on the high court as to key questions concerning the legal operation of s44(v), which creates some difficulty in predicting the manner in which the court would analyse the facts. There is a possibility, consistently with the approach that the high court recently took in the context of s44(i) of the constitution, that the court might endeavour to create a clearer line in the interests of certainty, which might involve a broader reading of s44(v) than was reflected in some of the judgments in Re Day (No 2).
For those reasons I consider there to be some risk, particularly in light of the substantial size of the payments that appear to have been made by the commonwealth to RHT Investments, that the high court might conclude that there is a conflict between Mr Dutton’s duty as a parliamentarian and his personal interests.The court might consider those payments to have created the expectation of benefit to Mr Dutton, on the basis that they would contribute to the amount of surplus income available to be distributed to beneficiaries of the RHT Family Trust, and that Mr Dutton had an indirect pecuniary interest on that basis. However, while that risk cannot be entirely discounted, it would remain necessary for the court to identify an agreement in which Mr Dutton held that interest. I am unable to identify such an agreement. For that reason, I consider that the high court is more likely to conclude that the size of the payments made to RHT Investments is not relevant to the s44(v) analysis, because those payments were made pursuant to statutory entitlements of particular individuals who use child care services operated by RHT Investments. 11. Finally, I consider it unlikely that Mr Dutton is disqualified by reason of payments made to RHT Investments under the Inclusion Support Programme (ISP).
Finally, I consider it unlikely that Mr Dutton is disqualified by reason of payments made to RHT Investments under the Inclusion Support Programme (ISP).
