Opinion Number. 1422

Subject

QUALIFICATION FOR ELECTION TO PARLIAMENT ELECTION TO PARLIAMENT: RETIRED PUBLIC SERVANT: DISQUALIFICATION OF PERSON RECEIVING ‘PENSION payable during the pleasure of the Crown out of any of the revenueS of the Commonwealth’: WHETHER PENSION UNDER SUPERANNUATION ACT 1922 DISQUALIFIES RECIPIENT FROM ELECTION

Key Legislation

Constitution s 44: Superannuation Act 1922 ss 18, 23

Date
Client
The Secretary, Prime Minister

The Secretary to the Prime Minister’s Department has requested advice whether the receipt by a retired Public Servant of a pension disentitles him to sit or be chosen as a member of the Commonwealth Parliament. Section 44 of the Constitution provides that any person who holds any office of profit under the Crown or any pension payable during the pleasure of the Crown out of any of the revenue of the Commonwealth shall be incapable of being chosen or of sitting as a Senator or a member of the House of Representatives.

Pensions under the Superannuation Act 1922–1924 are payable out of the Fund established under the Act. The Fund is supported by the contributions by employees and by payments by the Commonwealth (section 18). Under section 23 every contributor has a right to a pension on his retirement on attaining the maximum age for retirement.

Pensions payable under the Superannuation Act 1922–1924 are not, in my opinion, ‘pensions payable during the pleasure of the Crown out of the revenues of the Commonwealth’.

I advise that a person receiving a pension under the Commonwealth Act is not under the disqualification specified in paragraph (iv) of section 44 of the Constitution.

[Vol. 23, p. 257]