The Minister for Home Affairs asks, in connection with the provisional alteration of Public Service Regulation 41, to be advised on the question whether public servants are debarred from being candidates for Parliament (provided they conduct such candidature in their own time).

The matter is not dealt with by the Public Service Regulations as they at present stand.

But section 44 of the Constitution provides that any person who holds any office of profit under the Crown is incapable of being chosen or of sitting as a Senator or a Member of the House of Representatives.

By section 95 of the Commonwealth Electoral Acts 1902-1906, a person is not entitled to be nominated for election unless he is qualified under the Constitution to be elected. Consequently the nomination of a public servant cannot be received.

There is therefore no legal obstacle to a public servant conducting a candidature (in his own time) at the stage prior to nomination; but he cannot be nominated until he has ceased to be a public servant-that is to say, until his resignation has been accepted by the Governor-General in Council.

[Vol. 7, p. 95]

* See also Opinion Nos 383,505.