Opinion Number. 220

Subject

MEMBER OF PARLIAMENT WHETHER DISQUALIFIED BY RECEIPT OF TRAVELLING ALLOWANCE AS MEMBER OF ROYAL COMMISSION

Key Legislation

CONSTITUTION, ss. 44, 45, 46

Date
Client
The Prime Minister

The Government has fixed a scale of travelling allowances for the Tariff Commission(1), as follows: President-£1.10.0 per day; members-£1.5.0 per day, to be paid to members who are obliged in pursuance of their duties to be absent from the city in which they reside.

It appears that it is proposed to pay the allowance to members of Parliament who are members of the Commission:

  1. to members not resident in the State where the sitting is held, in respect of sittings held out of Victoria while Parliament is sitting;
  2. to members not resident in Melbourne, in respect of Melbourne sittings whenParliament is not sitting.

The question has arisen whether the receipt of the allowance could be regarded as a disqualification under section 44 or 45 of the Constitution. The Prime Minister asks to be advised on the matter.

The question is whether a member who receives such an allowance can be said-

  1. to hold an office of profit under the Crown; or
  2. to have a direct or indirect pecuniary interest in an agreement with the Public Service of the Commonwealth; or
  3. to directly or indirectly take or agree to take a fee or honorarium for services rendered to the Commonwealth.

In my opinion the receipt of a reasonable travelling allowance, such as that mentioned, expressed to be for defraying or reimbursement of actual expenses, would not cause any of the disqualifications mentioned.

I wish to add, however, that my personal opinion does not protect a member either against a decision of the Elections and Qualifications Committee, or against any prosecution that may be initiated by any person under section 46 of the Constitution.

[Vol. 5, p. 39]

(1) Royal Commision On Customs and Excise Tatiffs, appointed 12 December 1904.