Opinion Number. 505

Subject

PUBLIC SERVANT WHETHER STATE PUBLIC SERVANT MAY CONDUCT CANDIDATURE FOR AND BE NOMINATED FOR COMMONWEALTH PARLIAMENT : CRITERIA FOR REJECTION OF NOMINATION BY RETURNING OFFICER

Key Legislation

CONSTITUTION, s. 44 : COMMONWEALTH ELECTORAL ACT 1902-1911. s. 95

Date
Client
The Secretary, Department of Home Affairs

The following memorandum by the Chief Electoral Officer has been referred by the Secretary to the Department of Home Affairs to me for advice:

The Commonwealth Electoral Officers and Divisional Returning Officers desire legal advice in the following matters:

  1. Does the opinion given by the Attorney-General's Department under date 7 April 1909(1)apply to State public servants as well as to Commonwealth public servants?
  2. If the Returning Officer may reject a nomination of a Commonwealth or a State public servant, or either, what evidence that the person nominated is a public ser-vant at the date of nomination is required to justify the action of the Returning Officer?

It may be nominations will be received at the latest moment, and it will be noted that there is no obligation on a candidate, under the Electoral Act, to declare that he is eligible.

I attach copies of opinions dated 7 April 1909 and 5 May 1910(2), respectively.

The matter is one of urgency, in view of the fact that nominations may be received after the 24th instant.

The opinion referred to in question (1) was given on the question whether Com-monwealth public servants are debarred from being candidates for Parliament pro-vided they conduct such candidature in their own time. The opinion expressed was that there was no legal obstacle to a public servant conducting a candidature (in his own time) at the stage prior to nomination; but that he could not be nominated until he had ceased to be a public servant-that is to say-until his resignation had been accepted by the Governor-General in Council.

This opinion is applicable to Commonwealth public servants only.

The question whether a State public servant can conduct a candidature for the Commonwealth Parliament in his own time or otherwise prior to nomination appears to me to depend largely on State law; but there is in my opinion nothing in the Consti-tution or Commonwealth law to prevent his doing so.

The question whether a State public servant can be nominated as a member of the Commonwealth Parliament is a more difficult one.

Section 44 (iv) provides that any person who holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the rev-enues of the Commonwealth, shall be incapable of being chosen or of sitting as a Senator or Member of the House of Representatives.

By section 95 of the Commonwealth Electoral Act 1902-1911 a person is not en-titled to be nominated for election unless he is qualified under the Constitution to be elected.

The question therefore is: does a State public servant hold an office of profit under the Crown within the meaning of section 44 of the Constitution?

My opinion is that he does, but it must be admitted, in the absence of any authori-tative decision on the point, that the question is open to doubt.

A nomination in proper form should in the absence of clear proof to the contrary be taken to be valid. I think therefore that a nomination should not be rejected on the ground that the person nominated is a State public servant.

With regard to the second question, I do not see how I can say much more than I said in the opinion of 5 May 1910. A Returning Officer is not equipped with the ma-chinery for making enquiries into the question whether a person is, or is not, eligible to be nominated. He would, therefore, be fully entitled to accept a nomination in any case, but at the same time I think he would be justified in rejecting a nomination if the person nominated was in fact ineligible. He would, I think, be justified in rejecting a nomination if the person nominated admitted the ground of ineligibility or if, in the case of a public servant of the Commonwealth, he had before him a certificate or statu-tory declaration of the Head of Department or Chief Officer that the person nominated was a paid public servant of the Commonwealth, or if he knew of his own knowledge without any doubt that such person was a public servant. It is the existence of the fact of ineligibility alone that justifies rejection of a nomination on the ground, and proof positive of that fact is therefore necessary before a Returning Officer could take action. A high degree of probability would not be sufficient nor would evidence capable of being controverted.

[Vol. 11, p.l54A]

(1)Openion No. 332.

(2)Openion No. 374.