The latest from the High Court: May 2018

CONSTITUTIONAL LAW

‘Office of profit under the Crown’ – section 44(iv) of the Constitution

In Re Lambie [2018] HCA 6 (14 March 2018) the High Court considered the meaning of the phrase ‘under the Crown’ in s 44(iv) of the Constitution in deciding whether Mr Steven Martin was incapable of sitting or being chosen as a senator. In December 2017, the High Court answered questions referred to it, finding that Ms Jacqui Lambie was incapable of being chosen as a senator. Mr Martin was identified by a special count as a candidate who could be elected in her place. Mr Martin was, at all relevant times, the mayor and a councillor of the Devonport City Council, which is established by the Local Government Act 1993 (Tas). The question for the Court was whether those positions were ‘offices of profit under the Crown’ within s 44(iv). It was accepted that they were ‘offices of profit’ and that the ‘Crown’ in s 44(iv) meant the ‘executive government’ of the Commonwealth or a state. The decision turned on the meaning of ‘under’ and the relationship required between the executive and the office.

A majority of the Court held that s 44(iv) seeks to avoid a conflict between a parliamentary member’s duties to the House and a pecuniary interest allowing for executive influence over the performance of parliamentary duties. Relevantly, an office would be held ‘under’ the Crown if it was held at the will of the executive or the receipt of profit from the office depended on the will of the executive. In this case, Mr Martin’s positions depended on the Local Government Act and the executive did not have effective control over Mr Martin holding or profiting from them. The offices were, therefore, not ‘under the Crown’. Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ jointly; Edelman J separately concurring for different reasons. Answers to questions referred given.