High Court Publishes Reasons: Re Lambie [2018] HCA 6
Wednesday 14 March 2018 @ 1.04 p.m. | Legal Research
Today, 14 March 2018, the High Court’s reasons were published for the orders made on 6 February 2018, regarding the case of Re Lambie [2018] HCA 6. These reasons concerned Ms Jacqui Lambie’s seat in the Senate which was vacated in late 2017, after Ms Lambie discovered she was a dual citizen.
In a joint judgment of the Full Court, the High Court held that Devonport Mayor Steven Martin is eligible to replace Ms Lambie in her seat in the Senate, pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) (the “Electoral Act”).
The Facts
In November 2017, Ms Jacqui Lambie resigned from the Senate after discovering that she was ineligible to hold office by virtue of being a dual citizen, as per section 44(i) of the Constitution of Australia.
Consequently, the Senate referred questions to the High Court sitting as the Court of Disputed Returns, pursuant to s 376 of the Electoral Act. These questions included whether there was a vacancy in the representation of Tasmania in the Senate for the position which was previously held by Ms Lambie. Additionally, the Senate questioned how this position was to be filled. On 8 December 2017, Justice Nettle held that there is such a vacancy and this should be filled through a special count of the ballot papers.
On 12 December 2017, the Australian Electoral Officer for Tasmania conducted a special count of the ballot papers in accordance with the orders made by Justice Nettle. The officer then reported on the candidates, including Mr Martin, who would be elected as senators for Tasmania.
The question was then raised by Justice Nettle, as presented to the full court of the High Court on 13 December 2017, whether Mr Martin was eligible to hold this position in the Senate. This question derived from s 44(iv) of the Constitution whereby a person is incapable of being elected as a member of the Senate if they hold "any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth".
The question for determination by the High Court was therefore whether Mr Martin's position as Mayor of Davenport in Tasmania is included in the definition of s 44(iv). As per paragraph 10 of the joint judgment:
"The sole issue for determination by the Full Court in answering the question reserved was whether, within the meaning of s 44(iv), the offices of mayor and of councillor of a local government corporation established under the Local Government Act answer the description of offices of profit "under" the executive government of Tasmania."
The Reasons
The High Court held that Mr Martin was eligible to hold office as a Senator as his position of Mayor of Davenport does not count as an "office of profit under the Crown", as per s 44(iv) of the Constitution. In holding this to be the case, the court analysed the meaning of the word "under" in its constitutional setting:
"The word "under" in s 44(iv) obviously must connote the same connection between a senator or member and the executive government of a State as it connotes between a senator or member and the executive government of the Commonwealth. What must nevertheless be emphasised is that s 44(iv) is at its apogee, in conjunction with s 45(i), in protecting the framework for responsible government established by the Constitution in so far as it operates to limit the capacity of the Commonwealth executive to influence a sitting senator or member in the performance of his or her parliamentary duty by the grant of an office of profit. It is impossible to resist the conclusion that "[a]t the very least, s 44(iv) was intended to prevent any revival of the practice (forbidden in Great Britain by the Act of Settlement of 1701) of the executive government suborning votes in the Houses of Parliament through purchase – that is through the grant of offices of profit under the Crown"28. The competing interpretations of the word "under" are appropriately evaluated by considering how they would operate to achieve that purpose [25]."
The reasons for the decision were outlined in the summary of the judgment published on the High Court website:
“Mr Martin has at all relevant times held the elected offices of mayor and of councillor of Devonport City Council, a local government corporation established under the Local Government Act 1993 (Tas) ("the Local Government Act"). In respect of each office, Mr Martin has a statutory entitlement to be paid a substantial annual allowance by the Council. There was no dispute that the positions which Mr Martin held answered the description of "offices of profit". The issue before the Court was whether the positions were offices of profit "under the Crown" within the meaning of s 44(iv), which would render Mr Martin "incapable of being chosen or of sitting" as a senator.
The Court unanimously held that the offices of mayor and of councillor held by Mr Martin are not offices of profit "under the Crown" within the meaning of s 44(iv). A majority of the Court held that the particular conflict to which s 44(iv) is addressed is that which would arise from a member of Parliament holding at the will of an executive government an office in respect of which he or she receives a financial gain. The majority held that the Local Government Act did not confer on the executive government of Tasmania effective control over the holding of or profiting from the office of mayor or of councillor. The Court unanimously held that Mr Martin is not incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution.”
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Sources:
Re Lambie [2018] HCA 6 & judgment summary
