Scott Morrison has rejected advice from his predecessor Malcolm Turnbull that the government refer Peter Dutton to the High Court, saying voters have had enough of "the lawyers' picnics" that had resulted in the removal 15 MPs and Senators under section 44 of the Constitution.
Legal opinion is divided over whether Mr Dutton's eligibility should be tested because two childcare centres held in a family trust potentially put him in breach of section 44(v) of the Constitution.
Fairfax Media revealed on Thursday that Mr Turnbull, who is on holiday in New York, has been texting and ringing former colleagues, including Mr Morrison, urging that Mr Dutton be referred, as Barnaby Joyce was referred, so the matter can be cleared up.
Mr Turnbull, who lost the leadership after Mr Dutton, the Home Affairs Minister, launched a bungled coup, took to Twitter overnight to make public his call.
"The point I have made to @ScottMorrisonMP and other colleagues is that given the uncertainty around Peter Dutton's eligibility, acknowledged by the Solicitor General, he should be referred to the High Court, as Barnaby was, to clarify the matter," Mr Turnbull tweeted in what are his first public comments since being dumped and walking away from politics.
Mr Morrison alluded to various legal advice as he defended the Home Affairs Minister.
"I'll obviously make the decisions in relation to our government on what I believe is in the national interest and based on the most recent and most timely information that I have available to me," Mr Morrison said.
"I think people have had enough of the lawyer's picnics on these sort of issues and they want to focus completely and totally on what the nation needs here and now."
The legal advice surrounding Mr Dutton is mixed. Labor has tried to refer him but does not have the numbers.
Labor frontbencher Tony Burke said Mr Dutton was being protected in a way Barnaby Joyce and others were not.
Mr Turnbull's intervention signals the transaction cost of the leadership spill is still unfolding and threatens to hamper Mr Morrison's attempts at unifying his party.
On Wednesday night, aggrieved Victorian Liberal MP Julia Banks, who is quitting at the election, lashed out at the culture inside the party and more generally as she called for the Liberal Party to adopt quotas to lift the numbers of female MPs.
She took aim at "appalling" behaviour in federal parliament including bullying, intimidation and harassment, but again did not name names.
Before the leadership spill, Mr Turnbull had the Solicitor-General Stephen Donaghue provide advice on Mr Dutton's eligibility. It was inconclusive.
Childcare centre funding
Under section 44(v) of the Constitution, anyone who "has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth" is ineligible to sit in Parliament.
The two childcare centres receive government funding. Labor is focussed on a specific arrangement in which one of the centres had a funding agreement with the Commonwealth to enable the hiring of a special needs teacher.
A letter dated March 2, 2018, was sent to the centre by KU Children's Services, the contractor engaged by the government department to deliver the Commonwealth funding. It confirmed the approval of a funding application for an Inclusion Development Fund Subsidy to hire the additional teacher.
"This Approval letter, together with the Conditions of Funding make up the agreement between the Commonwealth and You in relation to how the IDF subsidy, for which you have been approved, will be used," it says.