The following letter has been submitted to me for opinion by the Auditor-General:

With reference to the undermentioned payments made for the periods stated, and referred to in the accompanying correspondence, I have the honour to request the favour of your opinion as to whether, in view of the recent judgment of the High Court in the case of Mr J. V. O'Loghlin⁽¹⁾', the payments in each or all of these cases have been legally made under the Constitution, or is it necessary for the amounts to be specially provided. In each of the cases the election was declared void.

In Sir Malcolm McEacharn's case Mr Attorney-General Drake in an opinion dated 31 March 1904⁽²⁾ said:

Sir Malcolm McEacharn's election having been declared void, it follows that he was not a Member of the House during the period mentioned, and was not entitled to the amount paid him by way of allowance.

In an opinion dated 20 May 1904⁽³⁾ Mr Attorney-General Higgins expressed his agreement with Mr Drake's opinion. I also agree with Mr Drake's opinion.

The position as regards the cases mentioned in the Auditor-General's letter is prac-tically the same as in McEacharn's case. In each case the Court has decided that the election was void. That being so Mr O'Loghlin and Mr Vardon were not Senators dur-ing the periods mentioned in their cases, and Mr Palmer was not a Member of the House of Representatives during the period mentioned in his case. Consequently none of them were entitled to be paid or to receive an allowance as a Senator or a Member.

I am of opinion therefore that the payments mentioned were not legally made under the Constitution, and that an appropriation by Parliament is necessary to legal-ise them.⁽⁴⁾

[Vol. 6, p. 267]

(1) Vardon v. 0’Loghlin s C.L.R. 201.

(2) Opinion No. I73.

(3) Opinion No. I79.

(4) This opinion was published in Commonwealth of Australia, Parl. Papers I908, Vol. ll, p. l079.