MEMORANDUM OF ADVICE Colin Biggers & Paisley LawyersIn this matter T have been briefed to advise the Honourable Peter Dutton MHR in relation to a possible issue under section 44(v) of the Constitution. That section provides (relevantly) that any person who has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than 25 persons shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives. I have been asked to advise on whether a trust, under which Mr Dutton is a beneficiary, has an agreement with the Public Service of the Commonwealth. ‘The background to this issue is as follows, Mr Dutton is the beneficiary of a family discretionary trust. I have been provided with the Trust Deed but I believe it is unnecessary to refer to the detail of it. The trustee is RHT Investments (Qld) Pty Ltd (“the trustee company”), ‘The trustee runs ‘two child care centres known as Cametia Avenue Child Care Centre and Bald Hills Child Care Centre. Mr Dutton’s wife Kirilly is the only director and secretary of the company and holds the only two shares in the trustee company. Mr Dutton ceased to be a director and secretary on 22 March 2010 and also ceased to be a shareholder at about that time. He has nonetheless remained a beneficiary of the discretionary trust at all relevant times, In 1999 the Federal Government passed two Acts, namely, A New Tax System (Family Assistance) Act 1999 (the FSA Act”) and A New Tax System (Family Assistance) (Administration) Act 1999 (“the Administration Act”). Under these two Acts, two relevant forms of assistance to parents with children were created, The first is known as the “child care rebate”. ‘The second is known as the “child care benefit”. In simple terms, both of these involve payments being made to ‘or on behalf of parents of children by way of assistance to the parents in obtaining child care, The trustee company is an approved child care service under the statutory | scheme. ‘The relevant provisions of the Acts are Part 3 and Part 4 of the FSA Act and Part 3 of the Administration Act. ability lited by a scheme approved under Professional Standards Legislation 110, My, 12. 13. 14. 15. 16. Liability limited by a scheme approved under Professional Standards Legislation 1 do not think it necessary to set out the full detail of this statutory scheme. The operation of the scheme is set out in various memoranda and press releases of the Department of Human Services which are published on its website. See, for example, the documents with the following titles; “Payment options for childcare benefit”, “Details you need to give your approved childcare service”, “Payment options for childcare rebate” and “Payment and service finder”. And on the “Goodstart” website see “Childcare estimator to guide you on fees”. And on the “Mychild” website sec “Childcare benefit and childcare rebate” and “Childcare reforms pass Parliament”. 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 child care services. Tam instructed that direct payments were made under the statutory scheme by the ‘Commonwealth to the trustee of the RHT Family Trust from time to time. It is unnecessary to go into particular details relating to these payments. In my opinion, the effect of the statutory scheme is to institute a form of statutory entitlement for parents in relation to child care. Similarly, the payments which are sometimes made to approved child care services under these Acts are not paid pursuant to any contract with these entities, In the present instance, there is, in my opinion, no “agreement” within the meaning of .44(v) to which the trustee company is e party, The only relevant rights which are created are species of statutory entitlement, Accordingly, Mr Dutton cannot have # pecuniary interest in an agreement within the meaning of s.44(v) by virtue of the trustee company’s receipt of payments under this statutory scheme. Chambers, 4 December 2017