The following question, asked by the Postmaster-General, is submitted for advice:

Federal servants ask for leave of absence without pay to contest Federal electorates for two months. Can such be legally or constitutionally granted?

Section 44 of the Constitution of the Commonwealth provides that any person who holds any office of profit under the Crown shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

The fact that a salaried officer was, at the time of his candidature, on leave of absence without pay would not affect the fact of his being the holder of an office of profit. Nothing short of a resignation of the office could remove the disqualification imposed by section 44 of the Constitution.

A Federal officer on leave without pay is therefore disqualified for election. Under section 95 of the Electoral Act he would not be entitled to be nominated; and apart altogether from that section, the Constitution prevents him from being elected.

[Vol. 14, p. 134]