Opinion Number. 1866

Subject

NORTHERN TERRITORY WHETHER A MEMBER OF THE NORTHERN TERRITORY LEGISLATIVE COUNCIL HOLDS AN OFFICE OF PROFIT UNDER THE CROWN: WHETHER RECEIPT OF PARLIAMENTARY ALLOWANCE BY THE MEMBER OF THE COMMONWEALTH PARLIAMENT FOR THE NORTHERN TERRITORY IS THE TAKING OF A ‘FEE OR HONORARIUM FOR SERVICES RENDERED TO THE TERRITORY’: ROLE OF ATTORNEY-GENERAL’S DEPARTMENT IN ADVISING ON s 44 OF CONSTITUTION: MEANING OF ‘HOLDS ANY OFFICE OF PROFIT UNDER THE CROWN’

Key Legislation

CONSTITUTION ss 44 (iv), 46: NORTHERN TERRITORY (ADMINISTRATION) ACT 1910 ss 4H, 4K

Date
Client
The Assistant Secretary, Department of the Interior

I refer to your memorandum dated 28th June, 1949, addressed to the Crown Solicitor, in regard to the following questions:

(1)  Is an elected member of the Northern Territory Legislative Council a person who holds an office of profit under the Crown within the meaning of section 44 of the Constitution;

(2)  Is the Member of the Commonwealth Parliament for the Northern Territory a person who directly or indirectly takes any fee or honorarium for services rendered to the Territory within the meaning of section 4K of the Northern Territory (Administration) Act 1910–1947.

(2)  Both questions appear to be purely hypothetical at this stage. So far as concerns question (1) it has always been regarded as definitely outside the province of this Department to advise any particular person as to his rights or liabilities under section 44 of the Constitution. The matter may be litigated at the suit of any private individual under section 46. A prospective candidate may therefore think it desirable in such a matter to consult his own legal advisers, for he must act in the long run on his own responsibility.

(3)  Question (2) is of a different character, upon which it would be my duty to furnish advice to the Administration if circumstances in fact arose which caused doubts about a person’s status as an elected member of the Legislative Council. The Northern Territory (Administration) Act contains no provision for penalties to be recoverable at the suit of a common informer and the effect of sections 4H and 4K is, in my opinion, to cast the onus on the Executive Government to determine when an elected member of the Council shall be deemed to have vacated his office.

(4)  For your information, and without for a moment assuming to guide any actual or prospective candidates, I express the confidential opinion on the first question that it is very unlikely that an elected member of the Legislative Council of the Territory would be held to ‘hold an office of profit under the Crown’. On the second question, my view is that the receipt by the Member of Parliament for the Northern Territory of his parliamentary allowance is not the taking of a ‘fee or honorarium for services rendered to the Territory’.

[Vol. 38, p. 377]