Re Lambie [2018] HCA 6

Re Lambie [2018] HCA 6

The offices of mayor and councillor of Devonport City Council, held by Mr Martin, are offices of profit but are not 'under the Crown' within the meaning of s 44(iv) of the Constitution, because neither holding nor profiting from those offices depends on the will or continuing will of the executive government of Tasmania.

Parties
Party: Ms Katrina McCulloch; Party: Mr Steven Martin; Party: Attorney-General of the Commonwealth; Party: Ms Jacqui Lambie; Intervener: Attorney-General for the State of Victoria
Jurisdiction
Australia
Judgment Date
14 March 2018
Procedural Posture
Constitutional Reference / Full Court, Determination of Reserved Question
Outcome
Mr Martin is not incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution
Legal Topics
Parliamentary Disqualification, Office of Profit Under the Crown, Senate Vacancy, Interpretation of S 44(iv) of the Constitution
Constitutional Law Electoral Law Parliamentary Disqualification Office of Profit Under the Crown Senate Vacancy Interpretation of S 44(iv) of the Constitution

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Parties

Ms Katrina McCulloch

Party

Mr Steven Martin

Party

Attorney-General of the Commonwealth

Party

Ms Jacqui Lambie

Party

Attorney-General for the State of Victoria

Intervener

Procedural Posture

Constitutional Reference / Full Court, Determination of Reserved Question

Legal Issues

  1. 1 Whether Mr Martin is incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution
  2. 2 Interpretation of 'office of profit under the Crown' in s 44(iv)
  3. 3 Whether the offices of mayor and councillor are offices of profit 'under the Crown'

Ratio Decidendi

The offices of mayor and councillor of Devonport City Council, held by Mr Martin, are offices of profit but are not 'under the Crown' within the meaning of s 44(iv) of the Constitution, because neither holding nor profiting from those offices depends on the will or continuing will of the executive government of Tasmania.

Court Disposition

Mr Martin is not incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution

Orders

  • The question reserved for consideration under s 18 of the Judiciary Act 1903 (Cth) is answered: No, Mr Martin is not incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution