Opinion Number. 1341

Subject

PARLIAMENTARY DISQUALIFICATION TRAVELLING ALLOWANCES PAID TO MEMBERS OF ROYAL COMMISSIONS CONSISTING OF MEMBERS OF PARLIAMENT: WHETHER RECIPIENT DISQUALIFIED FROM STANDING FOR OR SITTING AS MEMBER OF PARLIAMENT

Key Legislation

CONSTITUTION ss 44, 45, 46

Date
Client
The Secretary, Prime Minister

I am in receipt of your memorandum of 7th December, 1923, forwarding for advice papers relating to the decision of the Cabinet to vary the basis of the allowances paid to members of certain Royal Commissions consisting of members of Parliament.

I understand that at present the allowances which are paid are for travelling expenses while members are absent from their homes, the rates being:

For the Chairman £3 per day;

For each other member £1/10/- per day;

and that it is proposed to substitute allowances for expenses of attending meetings, at the following rates:

  1. In the case of members who reside at or adjacent to the place of meeting–15/- per day;
  2. In the case of members who do not reside at or adjacent to the place of meeting–£1/10/- per day.

I understand that I am asked to advise whether payment of these allowances could be regarded as a disqualification under section 44 or 45 of the Constitution.

At the outset, I desire to point out that the expression ‘adjacent to’ is somewhat vague. I suggest that a definite basis, such as mileage from the place of meeting, be substituted.

As regards the matter upon which advice is desired, I desire to point out that the question is largely one of fact, depending on the reasonableness of the allowances. An allowance which is reasonable and is expressed to be for defraying a reimbursement of actual expenses, would not, in my opinion, cause a disqualification within the meaning of section 44 or 45 of the Constitution.

In my opinion the allowances which are proposed would, if challenged, be held to be reasonable. I would point out, however, that the matter is one which can be determined only by the Courts, and that in a similar case Mr. Attorney-General (now Mr. Justice) Isaacs advised in 1905 in the following terms:

I wish to add, however, that my personal opinion does not protect a member either against a decision of the Elections and Qualifications Committee or against any prosecution that may be initiated by any person under section 46 of the Constitution.(1)

[Vol. 20, p. 336A]

(1) Opinion No. 220.