Opinion Number. 1689

Subject

COMMONWEALTH BANK COMMONWEALTH BANK BOARD: ACCEPTANCE OF MEMBERHIP BY MEMBER OF VICTORIAN STATE LEGISLATIVE COUNCIL: WHETHER office or place of profit under Crown, or perforMANCE OF duty or transactION OF business for or on behalf of Crown for or in expectation of fee gain or reward: VACATION OF SEAT: ‘CROWN’

Key Legislation

Constitution Act Amendment Act 1928 (Vic) ss 25, 27, 28

Date

I have been asked to advise whether, in the event of a member of the Legislative Council of Victoria being appointed as a member of the Commonwealth Bank Board, he would incur the penalties prescribed by sections 25 and 27 of the Constitution Act Amendment Act 1928 of the State of Victoria.

Section 25, so far as is here material, provides that if any member of the Council or the Assembly ‘accepts any office or place of profit under the Crown, or in any character or capacity for or in expectation of any fee gain or reward performs any duty or transacts any business whatsoever for or on behalf of the Crown, his seat shall thereupon become vacant.’

Section 27 reads:

    1. Except where express provision is made to the contrary by any enactment other than this section and except in the cases mentioned in sub-section (2) of this section if any person while he is a member of the Council or the Assembly or within six months after ceasing to be such member accepts any office or place of profit under the Crown, he shall forfeit the sum of Fifty pounds for every week that he holds such office or place to be recovered with full costs of suit by any person who sues for the same in any court of competent jurisdiction.
    2. This section shall not extend or apply to any persons accepting the office of–
      1. President or Chairman of Committees of the Council;
      2. Speaker or Chairman of Committees of the Assembly;
      3. Responsible Minister of the Crown;
      4. Judge of the Supreme Court; or
      5. (e) Agent-General.
    3. No responsible Minister of the Crown appointed by the Governor shall be liable to any such penalty by reason of his having accepted the office of such Minister whether the warrant attaching a salary to such office was made out at the time he accepted such office or at any subsequent period.

The question for consideration rests upon whether the words ‘the Crown’ in both the sections include the Crown in the right of the Commonwealth.

On the authority of Pirrie v. McFarlane (36 C.L.R. 170) it must be accepted that the expression ‘the Crown’ in any State Act is wide enough to refer to the Crown in the right of both the Commonwealth and the State. Whether it does so must, in my opinion, depend upon the context in which it appears.

In my opinion the provisions of section 28 of the Constitution Act Amendment Act leave no doubt that the reference to the Crown in both sections 25 and 27 includes the Crown in the right of the Commonwealth. Section 28 specifically provides that a person shall not be disqualified or incapable of sitting or voting in the Council or the Assembly or liable to a penalty under the Act by reason only of his being an officer or member of the Naval or Military Forces of the Commonwealth whose services were not or are not wholly employed by the Commonwealth, or, if he served in the last war, that he receives any half pay, allowance or pension.

The provisions of section 28 would, I suggest, be wholly meaningless if the words ‘the Crown’ in sections 25 and 27 were construed as meaning only the Crown in the right of the State.

It might also be noticed, in support of this view, that whereas sub-section (2) of section 27 refers to a ‘Responsible Minister of the Crown’, the provisions of subsection (3) specifically use the words ‘Minister of the Crown appointed by the Governor’. This specific provision in subsection (3.) indicates, I think, that the more general provision in sub-section (2) refers to a Minister of the Crown whether in the right of the State or the Commonwealth.

In my view membership of the Commonwealth Bank Board is the holding of an office of profit under the Crown. In the case of Heiner v. Scott 19 C.L.R. 381, at page 393, Griffith C.J. expressed the view that probably the true effect of the Commonwealth Bank Act is a declaration that the Commonwealth may itself carry on the business of banking under the name of the ‘Commonwealth Bank of Australia’.

Consequently, in my opinion, any member of the Victorian Parliament accepting an appointment as a member of the Commonwealth Bank Board would bring himself within the provisions of section 25 as to the vacation of his seat and of section 27 as to penalties.

[Vol. 34, p. 309]