Peter Dutton

Home Affairs Minster Peter Dutton has, in the past few weeks, been caught in a imbroglio custom-designed for words only journalists use: he’s embattled, under fire, beleaguered by a furore that could see him bundled out of parliament. There’s the simmering au pair-gate and, rippling out from that the accusations he misled parliament and the public stoush with former Border Force head Roman Quaedvlieg. Not to mention questions about his eligibility to even sit in parliament. And this week, it is all about to get worse. 

Labor will attempt to refer Dutton to the High Court over his eligibility to sit, having commissioned new legal advice, which suggests that thousands of his decisions after 2016 could be subject to legal challenges. Dutton is also potentially facing a vote of no confidence in the house. Adding to Dutton’s woes is former PM Malcolm Turnbull’s retirement following his axing, leaving the government with the fairly perilous number of 74 out of 149 members of the House of Representatives. However, Labor have agreed to provide a pair for Treasurer Josh Frydenberg, who will be absent for Rosh Hashanah, the Jewish new year, at least removing that headache. 

So is Dutton cooked? Let’s look at the practicalities:

What is a no-confidence motion?

A motion of no confidence can be aimed at the government in general, the prime minister in particular (the most common) or an individual minister. Standing orders provide that a motion of censure of, or no confidence in, the government “shall have priority of all other business if it is accepted by a minister as a censure or no confidence motion”, but a motion of censure of, or no confidence in, a minister is generally treated in the same way as any other private member’s motion.

A successful vote against the prime minister is a big deal; convention dictates that, having lost the support of the majority of the House of Representatives, the ministry as a whole should resign.  But a successful vote of censure of, or no confidence in, an individual minister (though this has only ever happened against prime ministers) is far less conclusive — it would most likely come down to what new Prime Minister Scott Morrison decides to do. According to the parliament website:

If a motion of no confidence in, or censure of, a minister were successful and its grounds were directly related to government policy, the question of the Minister or the Government continuing to hold office would be one for the prime minister to decide. If the grounds related to the minister’s administration of his or her department or fitness otherwise to hold ministerial office, the government would not necessarily accept full responsibility for the matter, leaving the question of resignation to the particular minister or to the prime minister.

The Greens and Labor are pushing the no-confidence motion and already have one crossbencher, Andrew Wilkie, on board. Negotiations are apparently continuing with independent Cathy McGowan and the Centre Alliance’s Rebekha Sharkie. However, if everyone on the crossbench was swayed, this would result in a tie, which is no good to Labor, the motion would be defeated. 

While speaker Tony Smith has previously taken the impartiality of his role seriously and vowed not to use his casting vote to prop up the government, it seems unlikely he would vote against Dutton in a vote of no confidence. 

But there’s one further element — Nationals MP Kevin Hogan, who shifted to the crossbench in protest of Turnbull’s treatment

What about the High Court referral?

The same maths applies for Dutton’s High Court referral: Labor and the Greens need all the crossbench on side and then a Coalition MP to cross the floor, abstain, or be absent for the vote. While the chaos of 2016 (where the government, with several MPs absent, lost three votes) may not be repeated, at the very least, this week will be a interesting test of just how independent Kevin Hogan is.