Opinion Number. 1561

Subject

elections: disqualification from candidature or sitting federal elections: disqualification from being chosen or sitting: medical officer for repatriation commission receiving fee for individual services: whether holder of office of profit under the crown: whether direct or indirect pecuniary interest in agreement with Public Service of Commonwealth

Key Legislation

constitution s 44(iv), (v): Australian Soldiers’ Repatriation Act 1920 s 21(1)

Date
Client
The Chief Electoral Officer, Canberra

The Chief Electoral Officer has forwarded the following memorandum to me for advice:

Forwarded for the favour of advice as to whether Dr. Davies’ occupancy of the position of Medical Officer for the Repatriation Commission may be regarded as constituting a disqualification under the provisions of section 44(iv) and section 44(v) of the Constitution Act.

Dr. Davies receives no salary or retainer, but is paid a fee for each individual medical examination on returned soldiers for complaints due to war service.

Section 44 of the Constitution (so far as is material to this Opinion) provides as follows:

44. Any person who —

  1. Holds any office of profit under the Crown …; or
  2. Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth ...
  3. shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

I am asked to advise whether Dr. Vernon Davies, who is stated to occupy the position of Medical Officer for the Repatriation Commission, is disqualified by this section from being chosen as a senator or a member of the House of Representatives.

I have not been informed whether Dr. Davies has been appointed by the Commission as one of its officers pursuant to section 21(1) of the Australian Soldiers’ Repatriation Act 1920–1931, or whether he is engaged by the Commission from time to time, under a series of separate contracts, to examine returned soldiers on behalf of the Commission.

I am of opinion that in either case, however, Dr. Davies is incapable of being chosen.

If he has been appointed an officer under section 21(1) of the Act referred to, then he holds an ‘office of profit under the Crown’, within the meaning of paragraph (iv) of section 44 of the Constitution, notwithstanding that the ‘profit’ consists of a fee paid for each examination conducted, and not a salary or retaining fee.

If, on the other hand, Dr. Davies enters into a contract with the Commission to examine a returned soldier, he has a direct pecuniary interest in an agreement with the Public Service of the Commonwealth within the meaning of paragraph (v) of section 44 of the Constitution, the effect of this paragraph being to create a disability, arising from any contract or agreement for valuable consideration, which any person may have entered into to supply any goods or perform any service to the Government of the Commonwealth. (Quick and Garran, Annotated Constitution of the Australian Commonwealth, p. 493) The Repatriation Commission must, I think, be regarded as a part of the Public Service of the Commonwealth within the meaning of paragraph (v).

The only difference between the two alternative positions is that in the first case the disqualification is a continuing disqualification, and Dr. Davies is, therefore, incapable of being chosen. In the second case, the disqualification only arises when a particular contract is entered into, so that Dr. Davies may be chosen, but will become incapable of sitting immediately he enters into an agreement with the Repatriation Commission.

[Vol. 27, p. 365]