The Treasurer:

With reference to the late Attorney-General's opinion of 31 March 1904⁽¹⁾, it appears that Sir Malcolm McEacharn has instructed his solicitor (Mr J. C. Stewart) to pay the amount if he concurs in the opinion.

Mr Stewart has written to the Treasury that he 'cannot see that the fees paid to Sir Malcolm, while he was de facto a member, were paid in mistake of fact', and asks that the point should be resubmitted to me.

I agree with my predecessor's opinion. As a matter of fact, Sir Malcolm was not a member-though the money was paid and received in the bona fide belief that he was. Neither he nor the Treasurer made any mistake about the law; they were mistaken in thinking that he had been elected.

There was a decision of the Queensland Full Court in Linnett v. Connah 1902 Q.S.R. 104, under somewhat similar circumstances.

The Returning Officer had declared Turner to be elected, but the Elections Tribunal subsequently declared the plaintiff to have been duly elected. Turner had meanwhile been paid his salary each month as member; and the plaintiff now claimed salary from the date of his election.

The Court came to the conclusion that on the interpretation of the Queensland Constitution Act Amendment Act of 1896 the money was properly payable to the person whose name appeared for the time being on the roll of Parliament; and that therefore Linnett who was entitled to be member, was not entitled to the payment. The decision depended on the special provisions of the Queensland law-and would admittedly have been the other way if the law had merely provided that the member should be paid. That is all that the Commonwealth law does provide (Constitution, section 48; Parliamentary Allowances Act 1902, section 2). The Queensland case therefore, so far from being an authority to the contrary, confirms my view of the matter.

[Vol. 4, p. 228]

(1) Opinion No. 173.