There is one factor that might make Peter Dutton ineligible to be Australian Prime Minister.

Some childcare woes could mean that Peter Dutton will be ineligible to be Prime Minister of Australia.

Why does labor want Peter Dutton referred to the High Court? 

Questions are being raised about whether Mr Dutton could be in breach of the constitution because his family’s discretionary trust, RHT Family Trust. The trust holds an interest in two Brisbane childcare businesses, which receive government subsidies. Under new laws introduced in July, those and other childcare centres began receiving subsidies direct from the government to help parents pay their fees.

However under section 44 of the constitution, members of parliament who have any direct or indirect pecuniary interest in any “agreement” with the commonwealth are not eligible to sit in the House of Representatives or Senate. If any MP or senator is found by the High Court to be in breach of section 44, like in the recent dual citizenship fiasco, they must be disqualified from parliament. Fairfax Media reports that the two childcare centres in question have received more than $5.6 million in commonwealth funding since 2014

What does Mr Dutton say? 

Mr Dutton says the unequivocal” legal advice he received in December 2017 shows he wasn’t in breach of section 44. The advice looks at the RHT Family Trust’s trustee company, RHT Investments, and the Camelia Avenue Child Care Centre and Bald Hills Child Care Centre it runs in Brisbane. Mr Dutton’s wife Kirilly is RHT Investment’s sole director and holds two shares. Mr Dutton stopped being a director, its secretary, and a shareholder in March 2010. However he remains a beneficiary of the RHT Family Trust. His legal advice says direct payments were made by the government to RHT Investments “from time to time” as part of a statutory subsidy scheme to help parents pay childcare fees. But it says as there is no “agreement” within the meaning of section 44 in regards to RHT Investments and the government, Mr Dutton is not in breach of the constitution.

What does labor’s legal advice say? 

Labor obtained advice from constitutional lawyer Brett Walker SC in April on the matter but has only released it this week. That advice found that Mr Dutton was not entitled to sit in parliament. Other constitutional experts, Professor George Williams and Professor Anne Twomey, have also said this week there is an arguable case against Mr Dutton.

What was Malcolm Turnbull’s response? 

Mr Turnbull told parliament on Wednesday Mr Dutton told him he wasn’t in breach of section 44. However the prime minister hadn’t seen the legal advice.

Is any other legal advice being sought?

Late on Wednesday, Attorney-General Christian Porter said he’d seek legal advice from the solicitor-general about whether Mr Dutton is eligible to sit in parliament.

Can Peter Dutton be referred to the High Court?

He can only be referred by parliament.