elections whether member of NEW SOUTH WALES land board capable of being nominated as candidate for election to FEDERAL parliament: WHETHER office of profit under the Crown
Constitution s 44: Commonwealth Electoral Act 1902 s 73: Crown Lands Consolidation Act 1913 (NSW) s 11
The Chief Electoral Officer has forwarded to me for advice the following memorandum:
A communication, reading as follows, has been received from Mr. J. H. of Nelson Rd, Fairfield, New South Wales–
Would you please inform me as to whether a member of a Land Board, receiving payment of so much per sitting of the Board, would be classed as the holder of an office of profit under the Crown, thereby being disqualified to nominate as a candidate at the forthcoming Federal Elections.
It is assumed that Mr. H.’s question relates to a Land Board constituted under the law of a State and that the payments to the members thereof are made by the State.
Section 44 of the Constitution provides–
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.
Section 73 of the Commonwealth Electoral Act provides–
No nomination shall be valid unless–
(a) the person nominated consents to act if elected, and declares that he is qualified under the Constitution and the laws of the Commonwealth to be elected as a Senator or a Member of the House of Representatives, as the case may be;
Before replying to Mr. H.’s communication the favour of your advice in the matter would be appreciated.
It is not stated whether the Land Board referred to is that constituted under the Crown Lands Consolidation Act 1913 of New South Wales. Section eleven of that Act provides that there shall be a local land board for every land district. The members of the Board are appointed by the Governor, and hold their respective offices during the pleasure of the Crown. The Chairman of the Board is paid such salary as Parliament sanctions and every other member is paid such fee for each sitting as is prescribed.
If the Land Board is a local land board established pursuant to the provisions of the above Act, I think that a member of such Land Board holds an office of profit under the Crown within the meaning of section 44(iv) of the Constitution and would, in consequence, be incapable of becoming a senator or member of the House of Representatives.
[Vol. 30, p. 238]