SPEAKER OF HOUSE OF REPRESENTATIVES
WHETHER COMMONWEALTH MAY LEGALLY PAY FORMER HOLDER OF OFFICE FOR PERIOD BETWEEN DISSOLUTION AND MEETING OF NEW PARLIAMENT
CONSTITUTION, s. 35 : APPROPRIATION ACT 1903-4
The Auditor-General:
The Auditor-General has queried reimbursement vouchers for payments to Sir F. W. Holder for salary paid to him as 'Speaker' from 24 November to 31 December 1903.
He observes:
Section 35 of the Constitution provides that the Speaker shall cease to hold his office if he ceases to be a Member.
As the House of Representatives was dissolved on 23 November 1903, the Office of Speaker appears to have been vacated, notwithstanding the footnote to Division 2, Sub-division 1 of the Appropriation Act 1903-4.
Explanation is requested as to the above and any subsequent similar payments.
The Clerk of the House of Representatives has explained that the payments were made with the approval of Parliament and under the authority of the Treasury. The salary for the whole year was appropriated, with a footnote as follows: 'If returned again to Parliament, salary to continue, notwithstanding the dissolution, until the meeting of the new Parliament'. The matter was discussed in both Houses last session (see Hansard, especially pp. 6353 and 6393) and the proposed payment was approved. The action taken was again discussed this session, on a motion questioning Sir Frederick Holder's seat in consequence of the payments-which motion received no support and was withdrawn.
Sir Frederick Holder has been re-elected to the House.
The Auditor-General asks to be advised whether the payment to Sir Frederick Holder was legally made under the Constitution.
The payments were made, not under the Constitution-which contains no reference to the salary of the Speaker-but under the Appropriation Act, which in effect provides that the salary may, under certain circumstances (which have occurred) be paid to a person who for the time being has ceased to hold the office of Speaker.
The question whether the payment would vacate the seat does not, of course, affect the legality of the payment.
In my opinion the payment was lawfully made under the Appropriation Act.(1)
[Vol. 4, p. 171]
(1) This opinion was published in Commonwealth of Australia, Pari. Papers 1904, Vol. II, p. 1340.