Opinion Number. 1619



Key Legislation

Constitution Act 1934 (Tas) s 32: Constitution s 44

The Chief Electoral Officer

The Chief Electoral Officer has forwarded to me for advice the following memorandum of the Commonwealth Electoral Officer for the State of Tasmania:

I am forwarding herewith copy of a communication received from Mr. Charles A. Lamp(1), a permanent employee of the Railway Commissioner of Tasmania, who signifies his desire to nominate as a candidate for the forthcoming Commonwealth Senate Election.

Mr. Lamp raises the question as to his eligibility to be nominated for election as a Senator.

Under Crown Law ruling it seems clear that Commonwealth Public Servants are not eligible to be nominated as candidates for election, but on the other hand Crown Law opinion of 16th April, 1913(2) by Sir Robert Garran indicates a doubt as to whether nomination by a State Public Servant could be rejected by a Commonwealth Electoral Officer or Divisional Returning Officer. I am unable to trace in the records of this office any subsequent opinion which would clear up the point.

The Constitution Act of the State of Tasmania (section 32) defines the eligibility of a holder of ‘an office of profit’ under the Crown in the following terms:

Except as otherwise expressly provided for, any Member of either House who shall accept any pension payable during pleasure of the Crown or any office of profit or emolument by the appointment of–

  1. the Governor or Governor-in-Council;
  2. any person, body, or authority constituted by any Act, or appointed by the Governor under authority of any Act to administer or control any Department or undertaking on behalf of the State,
  3. his seat shall thereupon become vacant.

It may be that the terms of this section are sufficient in Tasmania to establish that Mr. Lamp, even though a servant of the Railway Commissioner, occupies ‘an office of profit under the Crown’ and becomes merged in the wider term ‘State Public Servant.’

In such event applying Sir Robert Garran’s ruling it would be clearly known that Mr. Lamp is a State Public Servant and it would apparently be proper to reject his nomination.

I should be glad of direction on the point in order that Mr. Lamp might be suitably advised.

Section 44 of the Constitution of the Commonwealth provides, inter alia, that any person who holds any office of profit under the Crown shall be incapable of being chosen or of sitting as a Senator or a Member of the House of Representatives.

It is stated that Mr. Lamp is a permanent employee of the Railway Commissioner of Tasmania.

While Mr. Lamp may be the holder of an office of profit under the Crown in right of the State of Tasmania, it is by no means clear that he holds ‘an office of profit under the Crown’ within the meaning of section 44 of the Constitution.

The question of Mr. Lamp’s eligibility to nominate is not one upon which he should be advised by the Commonwealth. He must satisfy himself on this point.

As to the position of the Divisional Returning Officer in respect of doubtful nominations–this matter was dealt with in an opinion given by the Secretary of the Attorney-General’s Department on 5th May, 1910.(3) It was there advised that:

It is the duty of a Returning Officer to accept all valid nominations made to him. If he wrongly rejects any nomination, he does so at his own risk; and it would not be prudent on the part of the Returning Officer to reject a nomination on the ground of the ineligibility of the candidate, unless the ineligibility was beyond all doubt.

[Vol. 30, p. 363]

(1) Charles Adcock Lamp (1895