Introduction
The High Court of Australia sitting as the Court of Disputed Returns in Re Lambie [2018] HCA 6 has found that the offices of mayor and councillor of a local government corporation under the Local Government Act 1993 (Tas) (“LGA”) do not constitute offices of profit “under” the Crown within s 44(iv) of the Commonwealth Constitution and, accordingly, a person who held these offices was not incapable of being chosen or of sitting as a senator by reason of that provision.
Relevant provisions
Section 44 of the Constitution relevantly provides that any person who:
“(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; …
…
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
But subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.”
Under s 45 of the Constitution, the place of a senator or member of the House of Representatives who becomes subject to any of the disabilities referred to in s 44, will become vacant.
Background
The Senate had referred certain questions to the High Court sitting as the Court of Disputed Returns. The questions had included whether, by reason of s 44(i) of the Constitution (foreign citizenship), there was a vacancy in the representation of Tasmania in the Senate for the place for which Ms J Lambie had been returned at the general election for the Commonwealth Parliament held in July 2016 and, if so, by what means and in what manner the vacancy should be filled. A single justice of the Court had answered the questions to the effect that there was a vacancy and that it should be filled by a special count of the ballot papers. Following the special count, a candidate identified to fill the vacancy was a person who, for current terms which had commenced in 2014, held the offices of mayor and of councillor of Devonport City Council, a local government corporation established under the LGA. In respect of each of the offices, the candidate had a statutory entitlement to be paid a substantial annual allowance by the Council. The single justice then stated for the consideration of the Full Court the question of whether the candidate was incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution.
Full Court’s decision
The Full Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) unanimously answered the question in the negative.
A joint judgment of Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ (“Joint Judgment”) said that there was no dispute that:
- “the Crown” in s 44(iv) referred to executive government and encompassed both the executive government of a State and the executive government of the Commonwealth; and
- an “office of profit” in s 44(iv) captured the offices of mayor and of councillor of a local government corporation established under the LGA as each of these was a position of a public character constituted under governmental authority to which duties and emoluments were attached (at [9]).
The sole issue in dispute, the Joint Judgment said, was whether the holding of the relevant offices were offices of profit “under” the Crown, being in this case, the executive government of Tasmania (at [10]).
After considering the language, history and purpose of s 44(iv), the Joint Judgment made the following points regarding the interpretation of office of profit “under” the Crown (at [31]-[34]):
- An office of profit was “under” the Crown within the meaning of s 44(iv) if the holding or continued holding of that office, or the receipt of profit from it, depended on the will or continuing will of the executive government of the Commonwealth or of a State. This interpretation gave the disqualification set out in the first clause of s 44(iv) the greatest certainty of operation that was consistent with its language and with its purpose of eliminating or reducing the executive influence over a senator or member of the House of Representatives which would arise from a relationship of financial dependency.
- Under this interpretation, the disqualification effected by s 44(iv) had two distinct aspects.
- Under the first aspect, s 44(iv) operated to disqualify any person who held any office of profit to which that person had been appointed at the will of the executive government of the Commonwealth or of a State. To this aspect of the section’s operation, the security of the person’s tenure in the office and the means by which the person might be removed from the office were irrelevant. It was mere appointment to an office of profit at the will of an executive government which gave rise to the capacity for the executive government to influence the performance of the parliamentary duty of a senator or member, being influence it was the constitutional design to eliminate.
- Under the second aspect, s 44(iv) operated to disqualify a person who held an office of profit to which that person had not been appointed at the will of the executive government of the Commonwealth or of a State if the continued holding of that office or continued profiting from holding that office was dependent on the will of the executive government of the Commonwealth or of a State. The security of the person’s tenure and remuneration in such an office, the means by which the person might be suspended or removed from such an office, and any means by which emoluments of the office might be withheld were all of critical importance to this aspect of the operation of s 44(iv). However, this second aspect of the section’s operation would be engaged only if the executive government had such power over the continued holding of the office or profiting from holding the office as to amount to effective control over holding or profiting from holding the office.
The Joint Judgment said that the first aspect of the section’s operation – appointment to an office of profit at the will of the executive government – explained the disqualification of Mr Cleary in Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77, and of Ms Hughes in Re Nash (No 2) [2017] HCA 52; (2017) 92 ALJR 23; (2017) 350 ALR 204 as each had held an office of profit to which officeholders were appointed by executive government. (Mr Cleary had been appointed as a permanent officer in the teaching service of the Victorian Education Department. Ms Nash had been appointed as a part-time member of the Administrative Appeals Tribunal.) The Joint Judgment added that it had not mattered in Sykes v Cleary that Mr Cleary’s office had become “unattached” and that he had taken leave without pay and that, in each case, the security of Mr Cleary’s and Ms Hughes’ tenure, had been irrelevant (at [35]). [For a summary of Re Nash [No 2], see K Ottesen, “Candidate for disqualified senator’s place is herself disqualified from being elected as a senator”, 23 December 2017].
However, the Joint Judgment went on to indicate that, in the case before it, the first aspect of s 44(iv)’s operation was not relevant because the candidate did not hold an office of profit to which officeholders were appointed by executive government, the offices of mayor and of councillor being offices to which officeholders were elected. Therefore, the candidate’s position turned on the second aspect of the operation of s 44(iv) (at [36]).
The Joint Judgment then considered the provisions of the LGA and subordinate legislation and found that there was no power conferred on the executive government of Tasmania over the continued holding of the office or continued profiting from holding the office of mayor or of councillor which was sufficient to amount to effective control over holding or profiting from holding those offices (at [43]). Accordingly, the second aspect of the operation of s 44(iv) was not engaged. The Joint Judgment’s reasons for this finding were, in summary, as follows (at [44]-[51]):
- Provisions of the LGA which allowed the Minister to make orders imposing functions on mayors and clarifying the functions of mayors and councillors did not give the Minister any power over the holding of the office or profiting from holding the office of mayor or of councillor.
- Provisions of the LGA which provided for the suspension, removal or dismissal of a councillor from office by or on the recommendation of the Minister did not confer a power which could be characterised as rising to the level of control because the permissible exercise of the power was bounded by the subject matter, scope and purposes of the LGA and subject to the supervisory jurisdiction of the Supreme Court of Tasmania.
- The authority of the Governor to promulgate subordinate legislation setting the remuneration attaching to the holding of the offices was likewise bounded by the subject matter, scope and purposes of the LGA and subject to the supervisory jurisdiction of the Supreme Court of Tasmania and, therefore, did not amount to executive control over profiting from those offices so as to engage s 44(iv).
