Opinion Number. 192

Subject

MEMBER OF PARLIAMENT WHETHER COMMONWEALTH HAS POWER TO SECOND OFFICER OF DEFENCE FORCE WHILE MEMBER

Key Legislation

CONSTITUTION, s. 44

Date
Client
The Minister for Defence

The following is an extract from a minute of 17 August 1904 by the late Minister for Defence (Senator Dawson):

I am strongly of opinion that all officers of the Commonwealth Defence Forces, no matter what their rank, should immediately on becoming members of Parliament, be seconded in their regiment or corps, as I consider it subversive to discipline and an impropriety that officers on the Active List should be placed in the position of criticising their superior officers.

The Minister for Defence asks to be advised whether a regulation requiring that any officer shall be seconded in his regiment or corps, on his becoming a member of the Commonwealth Parliament, would be in conformity with section 44 of the Constitution.

I understand that 'to second' means to retire temporarily without pay, but without loss of rank.

In my opinion, a regulation to the effect proposed would not in any way conflict with section 44 of the Constitution.

That section provides, in effect, that receipt of pay by any person as an officer of the naval or military forces of the Commonwealth does not operate to make him incapable under sub-section (iv) (as the holder of an office of profit under the Crown) of being chosen or of sitting as a member of Parliament. It does not in any way affect the power of the Governor-General, by regulation or otherwise, to prevent a member of Parliament from holding an active command in the Defence Force.

[Vol. 4, p. 340]