VACATION OF STATE PARLIAMENT SEAT APPOINTMENT OF STATE MEMBER BY COMMONWEALTH MINISTER TO STATE WOOL COMMITTEE OF TASMANIA: WHETHER STATE SEAT VACATED BY ACCEPTANCE BY STATE MEMBER OF FEES AND EXPENSES AS MEMBER OF COMMITTEE
Constitution Act 1934 (Tas) s 32: Acts Interpretation Act 1931 (Tas) s 12
I am in receipt of your letter of the 1st December, 1939, requesting my advice as to whether or not you may accept, without prejudice to your Parliamentary position, certain fees and travelling expenses as a member of the State Wool Committee of Tasmania.
The question whether the fees and expenses may or may not be safely accepted can only be determined finally by the Courts, and any opinion which I express may not be upheld by the Courts. It is, therefore, a matter as to which you must take the responsibility of deciding on your course of action, as I cannot express an authoritative opinion on the subject.
I have, however, given the matter some little consideration and my view is as expressed hereunder.
The relevant provision of the Constitution Act, 1934, of your State is section 32, which, so far as material, provides as follows:
32. Office of profit.
- Except as otherwise expressly provided, if any Member of either House shall accept any pension payable during the pleasure of the Crown, or any office of profit or emolument by the appointment of–
- The Governor or the Governor is Council; or
- Any person, body, or authority constituted by any Act or appointed by the Governor under the authority of any Act, to administer or control any department, business, or undertaking on behalf of the State–
his seat shall thereupon become vacant.
- The provisions of subsection (1) hereof shall not apply in respect of any person by reason only that he holds the office of–
- Member of any statutory board, committee, or commission in respect of which he receives only such reasonable sum as may be prescribed under any Act or determined by the Governor as reimbursement of expenses incurred by him in the performance of such office and not by way of emolument.
It will be noticed that section 32 refers to offices of profit or emolument by the appointment of the Governor or, by or under any Act, that is to say, any Act of the State of Tasmania (cf. Acts Interpretation Act, 1931, section 12).
In view of the express reference in that section to the Governor and Acts of your State, it appears to me that it may be inferred that appointments by other authorities or by or under Acts other than Acts of your State would not be subject to the provisions of section 32. In other words, it seems probable that the appointment of a Member of either House of the Tasmania Legislature to the State Wool Committee for Tasmania by a Commonwealth Minister under or in pursuance of Commonwealth legislation would not result in the automatic vacation of the seat of that Member under section 32.
In conclusion, I again stress that the foregoing advice is not authoritative in the sense that you may safely act on the basis thereof, but it may be of some use to you in deciding whether or not to accept the fees and allowances.
[Vol. 32, p. 493]