An opinion is sought as to the right of a Member of the Legislative Council of New South Wales to retain his seat under the following arrangement. The Member is an employee of a company. He is to do work for the Commonwealth. The Commonwealth will pay the company the amount of his salary during the holding of his position. The company will continue his salary during the time.

The answer to this question depends, I think, on the proper construction of the Constitution Act 1902 (N.S.W.), section 16, the material part of which reads:

It shall be lawful for His Majesty, by an instrument under the Sign-Manual, to authorise the Governor to summon to the Legislative Council by instrument under the Great Seal any person he thinks fit, and every person so summoned shall thereby become a Member of the Legislative Council:

* * * * * * * *

Provided also, that not less than four-fifths of the Members so summoned shall consist of persons not holding any office of emolument under the Crown; but officers in His Majesty's sea and land forces on full or half-pay, and retired officers on pensions,shall not be deemed to be persons holding an office of emolument under the Crown within the meaning of this section.

If the Member is doing work for the Commonwealth Government, which is refunding to the company the amount of his salary while so employed, I do not think that whatever prohibition the section contains can be defeated by the simple expedient of using the company as a conduit pipe through which his emolument is to reach him for the work he is doing for the Crown. The amount of his remuneration is immaterial (Bowman v. Hood 9 Q.L.J. 272).

I think that the prohibition extends to an office of emolument under the Crown as represented by the Federal Government, and is not limited to the Crown as represented by the State of New South Wales. The distinction between these juristic persons drawn in R. v. Sutton 5 C.L.R. 789 is not, in my opinion, applicable to this case. That case dealt with the rule of interpretation that the Crown is not bound by general words in an Act unless expressly or by necessary implication, and limited the application of that rule to cases in which the rule actually gives effect to the apparent intention of the legislature. But the present question is not as to the application of a rule of interpretation, but as to the construction of specific words in a statute. To cut down the generality of the words 'any office of emolument under the Crown' to mean only any office under the New South Wales Government would require very strong implication indeed. Assuming the object of the provison to assure the independence of the Council from Executive or Governmental control or influence, it does not appear clear that this is solely with reference to New South Wales. Indeed the proviso expressly excludes from the prohibition 'officers in His Majesty's sea and land forces', and these would be in the Imperial, and not the State employment.

The similar provisions as regards the Legislative Assembly in sections 26 and 27 of the same Act strengthen this interpretation, and the amendment of these last-named sections in Act No. 33 of 1914 must, I think, have been intended to exclude from the prohibition in those sections persons in His Majesty's navy or army who may be in the employment of the Crown as represented by the Federal Government.

Under 6 Anne c.41, section 24 the House of Commons in 1878 on the report of a select committee resolved 'That Sir Bryan O'Loghlen had vacated his seat' for the County of Clare by his acceptance of the office of Attorney-General of Victoria (May, Parliamentary Practice, 11th edn, pp. 641-2) and Moore in his Constitution of the Commonwealth of Australia, 2nd edn, pp. 89-90, quotes this as a precedent.

As regards the Act, 6 Anne c.41, section 24, I do not think that this can have any effect upon the membership of the New South Wales Legislative Council. It does not, I think, come within the principle as to the introduction of the laws of England that can be reasonably applied (vide Webb's Imperial Law and Statutes, 2nd edn, pp. 36-40), particularly as when a legislature was established, express provision was made on the subject.

This leaves the question depending on the proper construction of the Constitution Act 1902 (N.S.W.), section 16.

I think that if not less than four-fifths of the Members of the Legislative Council are 'not holding any office of emolument under the Crown', the Member in question may retain his seat without any difficulty arising.

If, however, his appointment to the office in question leaves less than four-fifths 'not holding any office of emolument' the question arises as to whether his seat is thereby vacated.

Section 16 contains no provision that a Member accepting an office of emolument shall vacate his seat. It deals with the class of persons who may be summoned as Members. The first part includes 'any person' the Governor thinks fit. The provisos take out of this class certain persons. This is the true function of a proviso; and so, upon the recognised principles of construction, the proviso in question would appear only to limit the generality of the Governor's choice as to persons he may summon, and not affect the position of persons once they properly become Members of the Council. Section 17 provides for life tenure, section 18 provides for resignation, and section 19 provides for vacation of seat in certain events, which do not include the acceptance of an office of emolument.

Section 13 (1) deals with the disqualification of contractors for the Public Service, and provides that they 'shall be incapable of being summoned or elected or of sitting or voting'. Section 13 (2) provides that if any Member enters into such contract etc. his seat shall be declared to be vacant.

Section 14 (1) provides for the avoidance of the summons or election of 'any person by this Act disabled or declared to be incapable to sit or vote'.

Section 14 (2) provides a penalty for 'any person under any of the disqualifications mentioned in the last preceding section' who sits or votes.

It will be observed that nothing herein avoids the election, vacates the seat of, or penalises a person properly summoned as a Member of the Legislative Council who subsequently accepts an office of emolument under the Crown. This is in striking contrast to the provisions of section 27, which expressly provides that: 'If any Member of the said Assembly accepts any office of profit under the Crown ... his election shall thereupon become void'.

The original section 24 of 6 Anne c. 41 provided that: ' ... no person who shall have . . . any new office or place of profit whatsoever under the crown ... shall be capable of being elected or of sitting or voting as a Member of the House of Commons', but the Constitution Act 1902 in the case of Councillors does not prohibit their sitting or voting once they are properly summoned.

It may be argued that this construction leads to an absurdity in that it would be possible after they had been properly summoned to appoint a majority of Councillors to offices of emolument, and so defeat the intention of preserving the independence of that chamber. Arguments based on the supposed intention of the legislature, apart from what is expressed in the Act, are always dangerous. It may be that the discretion of the Governor was relied on as a safeguard against this, or perhaps the power of the Assembly over the Estimates may have been relied on. But, in any case, the Council corresponds to the House of Lords, and no such provision against 'placemen' had been considered necessary in respect to the House of Lords. It may, moreover, have been considered that the provisions applied to the elective Assembly were not apt for the nominee Council holding office for life, and the obvious change of language implies that the intention was different as regards the two chambers.

In any case, I think that upon the proper construction of the language used, there is nothing in the Act to cause the seat of a Member of the Legislative Council, properly appointed, to be vacated by his subsequent acceptance of an office of emolument under the Crown.

[Vol. 16, p. 40]