Re Lambie [2018] HCATrans 7 (6 February 2018)

Last Updated: 6 February 2018

[2018] HCATrans 007

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Canberra No C27 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING MS JACQUI LAMBIE

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 FEBRUARY 2018, AT 10.16 AM

Copyright in the High Court of Australia

MR C.R.C. NEWLINDS, SC: May it please the Court, I appear with MR P. KULEVSKI and we appear for Ms Katrina McCulloch. (instructed by Holman Webb Lawyers)

MR P.H. SOLOMON, QC: If your Honours please, with MR C.O.H. PARKINSON I appear for Mr Martin. (instructed by Corrs Chambers Westgarth)

MR S.P. DONAGHUE, QC, Solicitor-General for the Commonwealth: May it please the Court, I appear with MS Z.E. MAUD and MR B.K. LIM for the Commonwealth Attorney-General. (instructed by the Australian Government Solicitor)

MS K.L. WALKER, QC, Solicitor-General for the State of Victoria: If the Court pleases, I appear with MR M. HOSKING for the Attorney-General for the State of Victoria intervening. (instructed by the Victorian Government Solicitor)

KIEFEL CJ: Yes, Mr Newlinds.

MR NEWLINDS: What brings us here, your Honours, is an argument arising out of what the Attorney sought in paragraph 2 of his summons filed on 12 December 2017, which is at page 74 of court book number 1. Justice Nettle made an order which is at page 68 of that same book on 8 December giving my client and others leave to be heard in relation to that matter and at page 92 Justice Nettle in paragraph 12 of some orders made on that day reserved this question for the consideration of the Full Court.

The question is, is the mayor of Devonport an office of profit under the Crown for the purpose of section 44(iv) of the Constitution. That question, in our respectful submission, will be answered by determining the following questions, most of which are not in issue, at least, between those at the Bar table as I read the written submissions.

Firstly, it appears that it can be accepted that the position of mayor is an office for relevant purposes. Also, that it is of profit for the purpose of the section and that the Crown, for the purpose of consideration of the constitutional question, is the Executive Government of Tasmania. In other words, it falls into what is described in some of the cases - Sue v Hill, for example - as the third category of definitions of the Crown and, of course, in Sykes v Cleary one of the matters held by the Court was that the Crown, when referred to in section 44, was a reference to both the State and Federal Crown.

So the issue resolves or boils down to is the office of profit, the mayor of Devonport, under the Executive Government of the State of Tasmania? That question will be answered clearly enough by two steps: firstly, construing section 44(iv) of the Constitution and then, on our submission, examining the totality of the relationship between the Executive Government of Tasmania and the office of mayor.

Now, that relationship is governed by a statute – the Local Government Act 1993 (Tas). Another matter that seems to not be in issue is that it is the version of that Act which is behind tab – I think it is 5 of the joint book of authorities, volume 1. There is another version of the Act which was operative at an earlier point in time but no one seems to have made a submission that it is anything other than the version behind tab 5.

I will, of course, come to that statute in detail towards the end of my address because ultimately the answer to the question – once one has worked out what the constitutional requirement is – will be found in that statute. But can I first make some submissions concerning what we say the Court should conclude is the proper meaning of section 44(iv) before I come to examining the particular relationship at hand to explain why we ultimately contend that the position of mayor of the Devonport Council is an office of profit under the Crown for the purpose of the Executive.

We distributed an outline of oral argument, which your Honours should have in front of you. The first matter I want to pick up is the submission in paragraph 3 which is what does “under” mean? Now, of course, it is an English language word. It needs to be looked at in the context in which it is found and what is found is it is obviously talking about the relationship between an office and the Crown.

We would say, applying ordinary common usage, that denotes some sort of subordination by the person who is under and perhaps that the person who is over, to use the opposite word, might be said to hold a superior office or position.

It is important, and we do this in part, I confess, in our written submissions, not to drift away from the constitutional word, which is “under”, to pick up other words, often with a view to trying to explain particular submissions like “control”, “ultimate control”, “direction”, “appointment”, “in the gift of”. All the parties at the Bar table are guilty of propounding submissions that assume, for the purpose of the submission, that that is the meaning of “under”.

We have looked and we cannot find any decided case on the meaning of “under” for the purpose of section 44(iv), but we have observed at paragraphs 4 and 5 of our outline that section 116 involves another concept for the purpose of the religious test and it talks in terms of “an office under the Commonwealth”.

Obviously, it is a different constitutional context and the words are different. Obviously enough, the “Commonwealth” there referred to is not the Crown and has a much wider meaning. There is no requirement for profit, but you do find the notion of one being under the other – in other words, “the office” for that purpose being under the Commonwealth.

In Williams v The Commonwealth (2012) 248 CLR, which is behind tab 28 of the joint book of authorities, which is in volume 3, I think - that of course was the school chaplain case and there are a number of arguments propounded there. The one that received the most attention in the Court’s reasons was the question of whether the allocation of the funds was a matter for the Executive or alternatively a matter that needed an Act of Parliament.

But there was also an argument that the school chaplain was an office under the Commonwealth. It got disposed of, if I may say so, with reasonably short shrift by the Court. The reasons of Justice Gummow and Justice Bell deal with the question at page 222 of the report, which is page 1289 of the joint authorities book, at paragraphs 107 and following, where their Honours said:

Section 116 of the Constitution states that “no religious test shall be required as a qualification for any office or public trust under the Commonwealth”. The plaintiff contends that the “school chaplain” is an “office . . . under the Commonwealth” and that the definition of “school chaplain” in the Guidelines imposes a religious test for that office. To qualify as a “school chaplain”, a person must be recognised –

and so on. At paragraph 108:

However, the plaintiff’s case under s 116 fails at the threshold.

Over the page – 109:

The chaplains engaged by SUQ –

which is the State Government department:

hold no office under the Commonwealth. The chaplain at the Darling Heights State Primary School is engaged by SUQ to provide services under the control and direction of the school principal. The chaplain does not enter into any contractual or other arrangement with the Commonwealth. That the Commonwealth is a source of funding to SUQ is insufficient to render a chaplain engaged by SUQ the holder of an office under the Commonwealth.

It has been said in this Court that the meaning of “office” turns largely on the context in which it is found, and it may be accepted that, given the significance of the place of s 116 in the Constitution, the term should not be given a restricted meaning when used in what provision. Nevertheless, the phrase “office . . . under the Commonwealth” must be read as a whole. If this be done, the force of the term “under” indicates a requirement for a closer connection to the Commonwealth than that presented by the facts of this case.

So their Honours spoke in terms of a connection between the office and the Commonwealth in that case and indicated that some of the indicia that would be relevant to a consideration of whether that connection was close enough or not to qualify as being under the Commonwealth might include things like control and direction by the school principal, the fact that the contractual arrangement is not with the Commonwealth, the fact that the Commonwealth does not appoint and so on.

KEANE J: Does it suggest that the notion of control is an incident of the relationship itself?

MR NEWLINDS: It does. In our submission, it is hard to envisage an example of a relationship that is under another where there is absolutely no control.

KEANE J: Well, quite, But the ability, right or entitlement to exercise control is itself an incident of the relationship involving the office.

MR NEWLINDS: Yes. The other Justices of the Court in that case all agreed with the conclusion of Justices Gummow and Bell - I will just give your Honours the references - Chief Justice French at paragraph 84, Justice Hayne at 168, Justice Crennan at 476 and Justice Kiefel, as the Chief Justice was, at 597. Justice Heydon came to the same conclusion – he was in dissent generally but on this topic he came to the same conclusion but perhaps for slightly different reasons. That is at paragraphs 442 and 446 – well, 442 all the way through to 446 – which starts at page 333 of the Commonwealth Law Reports. At paragraphs 442 and 443, his Honour records that some of the submissions that were made by the plaintiff – in particular at 443:

In relation to the first submission, the plaintiff drew attention to the differences between s 44(iv) of the Constitution, s 75(v) of the Constitution and s 116.

Section 75(v), of course, refers to “officer of the Commonwealth”:

Section 44(iv) refers to an “office of profit under the Crown”, and means a permanent officer of the executive government.

So the plaintiff submitted that that is what Sykes v Cleary stands for and I will come to that. His Honour does not seem to accept that submission. His Honour then goes on to record further ways the plaintiff put the case and then at 444 decides the matter:

The plaintiff’s construction of s 116 must be rejected. The absence of the words “of profit” from s 116 indicates only that s 116 is wider than s 44(iv). Section 116 applies to offices which are not “of profit” as well as those which are. An “office” is a position under constituted authority to which duties are attached.

Now, pausing there and not trying to read too much into Justice Heydon’s reasoning, but his Honour seems to start with the proposition that if you are looking at an office it is going to be constituted by someone and therefore will be under the person or entity that has constituted the office and then he goes on, I think, to say that therefore the word “under” does not really add anything to the concept of it being a Commonwealth office. He says:

That suggests than an “officer” is a person who holds an office which is in direct relationship with the Commonwealth and to which qualifications may attach before particular appointments can be made or continued. The word “under” in s 116 has no significance.

Then, at 445 he decides the matter:

The Commonwealth has no legal relationship with the “chaplains”. It cannot appoint, select, approve or dismiss them. It cannot direct them. The services they provide in a particular school are determined by those who run that school. The provision of those services is overseen by school principals.

In the result, the plaintiff’s construction of s 116 is an unattractive one. Under that construction, whenever the Commonwealth enters a contract under which services are to be provided by a party with whom it is to have no legal relationship, under which particular standards are stipulated, and under which reporting obligations are created . . . that party would hold an office under the Commonwealth.

Then 447:

This is not the occasion on which to attempt an exhaustive definition of “office . . . under the Commonwealth”. It is sufficient to say that whatever its outer limits, the “chaplains” are beyond them.

So, his Honour at 445 speaks in terms of a relationship between the Commonwealth and the chaplains. The other Justices in this case spoke in terms of a connection and Justice Heydon identifies particular indicia which might be sufficient as appointment, selection, approval or dismissal and direction and standards of reporting obligations, so different constitutional context but the same concept.

From the ordinary meaning of the word “under” in this context, combined with what the Court said in that case, our submission ultimately will be that in order to identify whether a particular office is under the Crown for the purpose of this section it is necessary to examine the entirety of the relationship between the two entities or people.

The reason we emphasise that is our learned friends place a lot of emphasis and in some points in their written submissions seem to suggest that because local councillors are elected they are not appointed by the Crown and that is the end of the matter. We would accept that appointment is a relevant factor but we certainly do not accept that it is definitive. That is why we drew attention to the fact that the word is “under” and not “appointed by” or “in the gift of”.

KIEFEL CJ: But the word “under” carries specific connotations, as in the phrase “working under a person”.

MR NEWLINDS: It does.

KIEFEL CJ: I think you have accepted that it denotes control, supervision, direction.

MR NEWLINDS: Superior, inferior – yes, there will be some. In any chain of command you will find some people who are under others for the relevant purpose.

KIEFEL CJ: Is it more a question of degree, then?

MR NEWLINDS: It is a question, we would ultimately submit, of an evaluative judgment of any particular relationship to see if the connection or relationship is sufficient to qualify for the constitutional meaning, having regard of course to the identified purpose of the section, which I will come to now.

KIEFEL CJ: But the connection of which you speak assists in identifying the relationship.

MR NEWLINDS: It does.

KIEFEL CJ: The question then is what the relationship allows to occur and that is where “control”, “direction”, “supervision”, those concepts come in.

MR NEWLINDS: They all come in, yes, that is right. They are all matters which are relevant but the ultimate question is: what is this relationship and does it qualify for being under the Executive?

EDELMAN J: On that submission, would that mean that the assumption expressed by some of the delegates to the constitutional conventions that judges held offices of profit under the Crown was mistaken?

MR NEWLINDS: No, because each relationship needs to be judged on its own merits and so in some cases the fact of appointment may be enough. In other cases, though, it may not be. We did anticipate the judge example. There would be probably more direct constitutional reasons why judges would not be qualified to sit in the Australian Parliament but we do not shy away from the proposition that they may well be offices of profit under the Crown, even though, because of the separation of powers, once appointed there is no relevant control, direction, supervision, except in the most extreme circumstances.

EDELMAN J: So, in what circumstances would appointment not be sufficient then?

MR NEWLINDS: I would need to find a specific example, but it may be judges are not offices of profit under the control because they are entirely independent once appointed and so slipping into phrases like “control”, “direction” and the like, judges really are not under any control and as we stand back and just think about basic constitutional concepts, judges are an equal arm of government and so just at a very basic level one might think that judges are on the same level as the Crown for this purpose and therefore you do not even get to examining the relationship because the actual relationship is one that is on the same level.

We would have thought the separation of powers doctrine would have something to say on judges standing for election for Parliament but I am not shying away from the fact that appointment is an indicia and a relevant factor. I am not shying away from the fact that of course, one of my learned friend’s primary submissions is there is no appointment here but what I do join issue with is the proposition that that is the end of the section.

Now it be, Justice Edelman, that there are no examples of a relationship where appointment is not enough but it does not follow from that, as a matter of logic, that because there is no appointment, there is not a relevant relationship.

The judge one is not a bad example when we come to look at the purpose which is conflicts of duty between the two offices. Is it worse or better that a person having been appointed then is wholly independent and does not have any particular conflicts of duty other than it is hard to imagine a person making a law then coming across the road and interpreting it, between the two offices. So at one level, when we come to the evident purpose, what happens after appointment, through the totality of the relationship, might be much more important.

Can I then come to what Sykes v Cleary said on the topic - Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77 is at tab 25 of the same volume, volume 3. The relevant passage is that of the judgment of Chief Justice Mason, Justices Toohey and McHugh and it starts at page 95.

Now, of course, your Honours recall all too well - your Honours have probably looked at this case too often recently but Mr Cleary was a school teacher and he was on leave without pay. He stood for and was elected to the Australian Parliament. The proposition was being a school teacher was an office of profit under the Crown. The Court resolved that question in the affirmative and he was therefore disqualified but in the purpose of dealing with that question their Honours do identify what they said were the evident purpose of the section and it starts at the top of page 95. The Act of Settlement is referred to, the Succession to the Crown Act is referred to and then at about line 5 the Court says:

It has been said that the English provisions give effect to three main considerations or policies. They are -

and this comes from the Report from the Select Committee on Offices or Places of Profit under the Crown in 1941, prepared for the House of Commons:

the incompatibility of certain non-ministerial offices under the Crown with membership in the House of Commons (here, membership must be taken to cover questions of a member’s relations with, and duties to, his or her constituents); (2) the need to limit the control or influence of the executive government over the House by means of an undue proportion of office-holders being members of the House; and (3) the essential condition of a certain number of Ministers being members of the House –

Then the observation is made in the next paragraph that the meaning of the expression is “obscure” and then they deal with what “profit” means. Then in the last paragraph on that page:

It has been accepted in England that the disqualification of the holder of an “office of profit under the Crown” excludes permanent public servants -

Now, at this point this case resolved into an argument as to whether the exclusion should be limited to high-level bureaucrat type public servants, as opposed to people lower down the pecking order, such as just school teachers working in a particular school:

Likewise, it has been accepted in Australia that a provision for disqualification expressed in the same terms excludes public servants, who are officers of the departments of government, from membership of the legislature.

That is a 1987 report, referred to in footnote (33):

The exclusion of public servants from membership of the House contributes to their exclusion from active and public participation in party politics. In this way, the disqualification played an important part in the development of the old tradition of a politically neutral public service.

The exclusion of permanent officers of the executive government from the House was a recognition of the incompatibility of a person at the one time holding such an office and being a member of the House. There are three factors that give rise to that incompatibility.

Now, I do not want to overstate what follows because, quite clearly, the Court at this point is talking about public servants:

First, performance by a public servant of his or her public service duties would impair his or her capacity to attend to the duties of a member of the House.

So that is just being too busy, performing the two jobs.

Secondly, there is a very considerable risk that a public servant would share the political opinions of the Minister of his or her department and would not bring to bear as a member of the House a free and independent judgment. Thirdly, membership of the House would detract from the performance of the relevant public service duty.

Maybe that is the “too busy” one.

GORDON J: Are not (1) and (3) too busy?

MR NEWLINDS: Yes, I think so, your Honour.

The first respondent contends that the objects sought to be achieved by the disqualification of the holder of an “office of profit under the Crown” would sufficiently be served by confining the category of office-holders disqualified to that consisting of those who hold important or senior positions in government. History provides no support for this interpretation which would in any event, fail to give effect to all the considerations or policies said to underlie the disqualification. In order to give effect to those considerations, the disqualification must be understood as embracing at least those persons who are permanently employed by government.

So just pausing there and answering one of the submissions put against us, there is nothing in this case that lends support to the proposition that the Court determined that the limitation was limited to public servants per se permanently employed by the government. The high point is that it should be understood to apply at least to those people and the issue at hand was whether it should go all the way down the chain or not.

Just while your Honours have that case open, if you go to the next page, page 98, just to remind your Honours, it is that next portion of the judgment where the Court reasons and concludes that section 44(iv), when referring to the Crown, refers to both the State and federal Executive.

GORDON J: But is not the critical passage at the bottom of page 96, where they say:

However, the meaning of “office” turns largely on the context in which it is found and, in the light of the principal mischief –

et cetera?

MR NEWLINDS: Yes, most definitely. I am going to come to the Local Government Act and come to grips with that. But may I, just before I move off “purpose” and the potential conflicts of duties, what we are talking about here is this potential state of affairs - a local councillor, a mayor of a local council in Tasmania who, for reasons I will explain when we come to the Act, has a direct and indirect relationship with the Executive, the relevant Minister and sometimes other Ministers, the Treasurer, who stands for and becomes a member of the Federal Parliament. So, one needs to think about the conflicts that might be in play in that scenario.

So, if we are right and the Minister is over the mayor or the mayor is under the Minister in the sense that the Minister has the ability to influence the mayor’s ability to be the mayor, the job the mayor does, the mayor’s salary and the dismissal or non-dismissal of the mayor, if we are right and the Minister has that ability, then you are looking at a position where a person in the Federal Parliament might have a duty – would have a duty – to do the best for his or constituents and also the best for Australia on the one hand but, on the other hand, would be pulled in the direction of doing things that might suit the political or other purposes of the Executive of the Tasmanian Government which might be different. So, there is one type of conflict.

Another type of conflict is what is good for the local council electorate area – or the local government area – might not necessarily be good for the State of Tasmania if the person is a senator for that particular State or for Australia as a whole. The most obvious example is tied federal grants. It would obviously be advantageous for a mayor or a councillor of a local council to be able to organise or influence a tied grant that makes a hospital to be built in the local government area, a new road or the like. The ability of the Federal Government to direct funds to be used by the State in particular ways means that, at that level, the person who is sitting in the Federal Parliament might have an ability to influence the Minister of the State Government.

So, you have conflicts moving in this three-way relationship. Of course, our learned friends are right when they say, well, just to identify a conflict does not get you within the section. Lots of conflicts can be envisaged. I think Justice Keane said something earlier that we embrace – or, perhaps, Justice Gordon – the conflict, relevantly – if it can be identified – has to be a conflict that emerges out of the office itself.

So, going back to the relationship, you have the office of mayor – you can identify a conflict of duties that is created by that office and the duties that would be expected to be imposed on a federal parliamentarian. Then the evident purpose is engaged.

We say, for reasons that I will best be able to explain when we go through the Act, the ability or the potential for duties to be pulled in different directions is stark and, if we may say so, are much more obvious than conflicting duties apparently identified between a school teacher teaching at a high school and the Minister. Of course, it would be accepted that these days local governments are often run on a party-political basis. The well-known parties often run candidates in local government elections. They also run candidates in State Government elections which have an influence on who the Executive Government will be at State level and, of course, they run candidates for Federal Parliament.

GAGELER J: Mr Newlinds, when you say it is necessary to look at the totality of the relationship, are we not concerned with the legal incidence of the office?

MR NEWLINDS: Yes.

GAGELER J: And solely with the legal incidence of the office?

MR NEWLINDS: The only way this office is defined is by its legal incidence so the answer must be yes.

GAGELER J: And are we not concerned with identifying in those legal incidence a position of subordination to the Crown?

MR NEWLINDS: Yes.

GAGELER J: So we are concerned with one sort of conflict?

MR NEWLINDS: That is with the State ground.

GAGELER J: Yes.

MR NEWLINDS: When we step back to the – the Constitution is not worried about conflicts between a person who holds an office of profit under the State Crown and the State Executive. It must be worried about – because the section is directed to who can sit in the Federal Parliament – not who can sit in the State Parliament.

GAGELER J: Yes.

MR NEWLINDS: So there is this three-way relationship that one does need to keep in mind.

GAGELER J: But for the purpose of the disqualification, what we are looking at surely is the incidence of the office giving rise to a capacity for influence by the State Executive over a member of the Commonwealth Parliament.

MR NEWLINDS: Yes, that is our submission.

EDELMAN J: That submission would have the effect, would it not, then, that even a category such as teacher might need to be bifurcated as, for example, to whether the teacher is a teacher at an independent public school which is appointed by the school and subject to the control of the principal, or a teacher at a broader public school.

MR NEWLINDS: Perhaps, but the authority of this Court is that fulltime public servants are caught. The mayor is not a fulltime public servant as such.

EDELMAN J: Why does your submission then have to descend to that degree of particularity? Why not, for example, then just engage the submission that was – or the evidence that was given by Sir Gilbert Campion in the 1941 report that the expression “under the Crown” was a technical expression that meant the public service being the source from which payment was made?

MR NEWLINDS: Why do I not embrace that - because it does not necessarily capture the mayor of Devonport Council.

EDELMAN J: I realise that but what is wrong with that – what is wrong with that approach?

MR NEWLINDS: Because that puts a gloss on or reads down the ordinary expression of “under” and does not give effect to – does not cover the evident purpose in a way that I will explain when we come to the Act.

EDELMAN J: The alternative then, on your approach, is to examine every single relationship according to its own particular incidence in every circumstance.

MR NEWLINDS: Unless they are fulltime public servants in which case Sykes v Cleary has ruled that they are out.

EDELMAN J: But fulltime public servants once again comes back within Sir Gilbert Campion’s technical approach.

MR NEWLINDS: It does, it does. But I say it is wider than that approach and that is the issue at hand. I mean, I think our learned friends put the very matter your Honour just put to me against me and so the case - that is a way of describing where we are at issue. Can I just deal before I come to the Act to a couple of submissions that are put against us? Firstly, when we come to the Act you will see that some of the powers that the Minister has concerning the mayor are discretions which are conditional on other bodies or people doing things, for example, boards of inquiry, producing a report and making a recommendation and the like.

We say that observation really does not take away from our submission because when we come to what the power is which is engaged by that other person doing something, the Minister then has the discretion to either do something or not do something and we say a relationship is governed or described as much by what people can do in relation to the other and what they can choose not to do.

So, in other words, the Minister having a power to act or not to act is to put the other person under the Minister for relevant purposes and just test it this way without casting any aspersions on any local councillors around the country or any Ministers but, say, for example, a board of inquiry convened by the Minister under the Local Government Act does a report that recommends to the Minister that the mayor be sacked and the mayor shows that, the Minister then goes to the mayor and says, well, look at this, here is the section in the Act, I now have a discretion at large engaged to dismiss you or not to dismiss you and while we are having this chat when you are in Federal Parliament next and they are talking about some topic concerning my portfolio in the State Government, how about you look after me, that there is a direct conflict in duties flowing both ways.

The next point that is put against us is it is said this office is created by statute and I suppose logically it would also be said it can be taken away by statute. That is not the Executive. That is the legislature. Therefore you are out of bounds. We say that misunderstands the test. It does not matter how the relationship was created. Once it is created there is a relationship and connection and it is that that you look at.

Then our learned friends say that there is no direct relationship between the mayor and the Executive because I think they say interposed between those two people is the statutory corporation, the local council itself, and therefore they say there is not the requisite relationship.

We say a number of things about that. Firstly, it is factually wrong because when we come to the Act the Minister actually has direct powers, as against councillors and the mayor, not just powers concerning the council itself and, secondly, once again it puts a gloss on the meaning of “under”. It does not stop one being under someone else for there to be someone in the middle. The second lieutenant is under the lieutenant. They are both under the general but the first proposition does not lose any force because of the latter.

The other thing to notice is, when we come to the Act, you will see that this council is not just controlled by the councillors; the councillors make up the council. So the members of the council, if you like, for the purposes of corporation law, are the councillors from time to time.

I have dealt with the election as against appointment argument that is put against us. The next point where we join issue is our learned friend says, yes, but some of these powers, if you like, that the Minister has are disallowable in the sense that they are regulatory-type powers. The Minister makes a proclamation or makes a decision. It lies on the table of the House and within a certain time if the House does nothing it goes through; if the House makes a positive resolution disallowing, then it is disallowed.

Once again, while not beside the point, we think way too much emphasis is given by our learned friend to that sort of notion. Again, thinking of a chain of command, just because someone further up the chain can countermand my order to someone under me in the chain does not take away from the proposition that that person further down is under my control. So the second lieutenant gives an order to the lieutenant. He has to obey it unless the general countermands it.

It is an interesting observation but what it is doing, we would respectfully suggest, is grafting onto “under” some sort of concept of “absolutely under” or “completely under” for all purposes, which is not to be found in the words.

Finally, before coming to the statute, can I make one further observation about local councils which does make them different, we think, from any other statutory corporation one can conceive. This submission should not be taken as a one size fits all for every local council that exists forevermore because each one will need to be looked at in the context of its particular statute.

But historically and when we come to this council, pursuant to its piece of legislation, there can be no doubt that what the local council is doing it is doing as a delegate of the State Government, both executive and legislative, for a particular geographical area.

When we come to this Act, your Honours will see one of the functions of this particular council, the Devonport Council, is to provide for the peace, order and good government of the geographical area. That is the fundamental constitutional duty and power of a State Government.

This is not a case about the Melbourne Corporation doctrine, but we do observe that in Melbourne Corporation what the Federal Government was seeking to do was to make a law requiring the State and local councils within the State to bank with a particular bank. We all know that that was bad because it interfered impermissibly with one of those core governmental functions and if that was allowed to happen then it would mean that the federal could destroy the State, or vice versa, and the Constitution would assume they both would be able to continue. But for the purposes of that case it is important to note that it was not the Victorian Government that was the plaintiff; it was the Melbourne Corporation, a local council.

GAGELER J: If we were concerned with a provision that referred to an office of profit under the State you would be home and hosed.

MR NEWLINDS: I would.

GAGELER J: But we are not. I mean, you have to link the office of profit back to the Executive.

MR NEWLINDS: I need to link the office to the - we have been there. I have to remind myself and your Honour that the office is mayor. We are not talking about the local council because corporations cannot stand for Federal Parliament so it is always a natural-person office that we are considering and the Crown, we accept, means the State Executive.

The point I am trying to make at this stage - and we have given a reference to the purple passage from Sir Owen Dixon in Melbourne Corporation, but Justice Latham talks about how there could be no question of severance because they were talking about one and the same thing and the like.

If I can just take your Honour to one other case in that same context, and it is an old case but we think it has something to say and that is a decision of Justice O’Connor in a case called Municipal Council of Sydney v The Commonwealth [1904] HCA 50; (1904) 1 CLR 208. It is at tab 18. This was a very early section 114 case so the topic was then was this a tax being levied on a State and Justice O’Connor at page 240 of the report at about 11 or 12 lines from the bottom, the sentence that starts:

But in all such cases these powers are exercised by the subordinate body as agent –

So that is a subordinate body corporate as agent of the State.

GORDON J: Is that not borne out by the preceding sentence?

MR NEWLINDS: Yes, it is, it is. Thank you, your Honour. Then there is the reference to authority and then there is the:

“Municipal corporations are mere instrumentalities of the State for the more convenient administration of local government. Their powers are such as the legislature may confer, and these may be enlarged, abridged, or entirely withdrawn, at its pleasure. This is common learning found in all adjudications on the subject of municipal bodies - - -

GORDON J: That just reinforces the proposition put to you by Justice Gageler that they are institutions or repositories of the State, not necessarily of the Crown.

MR NEWLINDS: We respectfully say they are repositories of both because, thinking of Melbourne Corporation, the decision as to where the State banks its money is quintessentially an administrative governmental function that belonged to the Executive. So what we will see - we do see a mixture, I accept that, but it is the Minister who has the relevant relationship and the Minister for all intents and purposes is the Executive and it is he or she who has the relationship which we are examining.

Now, can I then come to the Act and that you can find in volume 1 of the authorities book behind tab 5 and I will try and do this as painlessly as possible but it is an entire relationship and for reasons I will develop, what you do see is two overlapping relationships - a relationship between the Minister and the council itself and a relationship between the Minister and councillors or the mayor as well.

They do overlap and they do need to be considered, in our respectful submission, in the context of the other and of course it all has to be considered in the context that your Honours have accepted my last submission, that what we are looking at here is a delegate of the State for particular purposes.

So just starting, if I can, at the definition section, so I will deal with page numbers at the bottom of the book - so at page 248 at the bottom middle, there is a definition of “councillor”:

means a person elected to a council and includes the Lord Mayor, Deputy Lord Mayor –

Now, there is one section in this Act which provides slightly more ammunition for me in relation to the mayor, so if your Honours were considering asking me is there any difference between this argument and if Mr Martin was just a councillor the answer is yes, but it is not expansive.

Then, there is a definition of “electoral district” and what can happen is the Minister can define electoral districts, not surprisingly enough, and they are, if you like, electorates within a council area. In New South Wales they are sometimes called wards but they are divided up into districts and a certain amount of councillors can stand for particular districts in the same way and presumably referable to how many people live in different parts of the council area but not necessarily.

“Municipal areas” is then defined on the next page and then if we come to page 252 section 16 deals in – immediately the Act divides the State up into municipal areas - that is subsection (1) - and subsection (4):

The Minister, on receiving a report on a review made under section 214D that recommends an adjustment of the boundary of a municipal area or the boundary of an electoral district within a municipal area, regardless of whether the adjustment is minor or significant in nature, may recommend to the Governor that an order be made so adjusting that boundary.

Then immediately we should look at section 214D which is on page 360. It starts at – 214E is the result of a review to understand what has been talked about. If you go back to section 210 there is a body called the Local Government Board. It consists of various people and subsection (3) those people are to be “appointed by the Minister”. He or she has no discretion, it would seem, in relation to appointing people nominated but if you go down to subsection (5)(a) the Minister does have a discretion to appoint one or two additional persons as members of the Board. The functions are at 211 - to “carry out reviews” and “advise the Minister on any other matters the Minister may determine”. Section 214:

(1) The Minister may require the Board to carry out a general review of a council.

(2) The Minister may require the Board to carry out a specific review relating to one or more of the matters specified in section 214A.

So it seems the Board cannot institute its own reviews. It needs a direction or requirement by the Minister and the reviews can include the things set out in 214A as well as item (m) which is “any matter referred to it by the Minister”. The relevant ones are:

(f) the creation or abolition of a municipal area or electoral district;

. . .

(i) the creation or abolition of councils;

(j) the election of councillors of a municipal area;

(k) the total numbers of persons to be elected as councillors of a municipal area or in respect of each electoral district;

(l) any other factor -

So pausing there, on a report by a body which can only produce such a report after a review required by the Minister, the Minister has the power, if the report so recommends, to get rid of a council altogether by taking away its area, to change, if you like, gerrymanders that might have been identified between electoral districts, to change the number of councillors who might be qualified to stand for any particular district or overall, and so on, all of which one can immediately see would have an immediate impact potentially on a particular councillor or mayor and may be something that a particular councillor or mayor does want to happen or does not want to happen, and there you have the Minister armed with the report with the discretion either to act or not to act.

GAGELER J: Is it correct that under section 16(4) the recommendation to the Governor needs to be in conformity with the report?

MR NEWLINDS: With the report, yes.

GAGELER J: Under section 214D(2), the recommendation in the report can only be made on the board being satisfied that it is in the best interests of the municipal area concerned and that it would lead to fair representation?

MR NEWLINDS: Yes.

GAGELER J: So it is all we are concerned with in relation to section 16(4), and is that one of the incidents that you rely upon?

MR NEWLINDS: We suggest that is one of the incidents. Section 18, back to page - - -

GORDON J: Before you leave it, though, are not sections 16 and 214 dealing with proper representation and ensuring that people have the ability to vote?

MR NEWLINDS: Yes.

GORDON J: It is not really dealing with control in the sense of the office of the council.

MR NEWLINDS: I agree with that and Justice Gageler put to me does this not have to come out of an incident of the office itself? I accept that this example is probably not captured by that particular definition, but it does get better. There are other types of reports and other types of discretions which are directly concerned with particular people. So then section 18 on page 253, councils are established and then 20 the functions and powers:

a council has the following functions:

(a) to provide for the health, safety and welfare of the community;

(b) to represent and promote the interests of the community;

(c) to provide for the peace, order and good government of the municipal area -

and so on. At page 256, section 25(1), the council is actually constituted by its councillors. Then mayors and deputy mayors are dealt with in sections 26 and 27 and the way it works is there are direct elections of mayors but a mayor also needs to stand as a councillor and he or she needs to win both elections to be the mayor. In other words, if you win the direct election to be mayor but you do not get elected as a councillor you cannot be mayor and then, once so elected, you become the chairperson but also at section 27, the mayor and deputy mayors have their own functions:

(a) to act as a leader of the community –

. . .

(e) to act as the spokesperson of the council -

and (f), we think is important:

to represent the council on regional organisations and at intergovernmental forums at regional, state and federal levels -

So the mayor of Devonport Council has a function which involves representing the council on intergovernmental relationships or forums with the Federal Government in circumstances where, if we are not right on this construction, he may well be a member of the Federal Parliament and, therefore, may well indeed be a Minister of the Federal Parliament.

GAGELER J: Accepting that, is this one of the incidents you rely upon?

MR NEWLINDS: Yes, yes.

GAGELER J: Just spell out how it shows the capacity for State Executive influence over the mayor in the performance of his parliamentary functions.

MR NEWLINDS: The mayor, on this hypothesis, is sitting in the Federal Parliament and therefore in the way I have explained has an ability to exert pressure on the State Executive of Tasmania. At the same time, the mayor is dealing with the Federal Government in circumstances where he must be wearing two hats at that point because he has a duty to act in the best interest of the council and the council area but, as a federal parliamentarian, has duties which potentially conflict.

GAGELER J: I just do not see the link for the moment to the State Executive which you accepted you need to make.

MR NEWLINDS: Yes, I do. So, that is a conflict between his duty as mayor and sitting in the Federal Parliament. But that does not get me there. I accept that because that is just to identify a conflict and the section does not say anyone with a conflict. But also, for reasons that I hope I am about to explain, he has a conflict because the Minister relevantly does have powers, functions and duties which can have a direct impact on his office. As an officeholder, ultimately he can be dismissed.

GAGELER J: Right, okay. But for the moment we are dealing with 27(1)(f)?

MR NEWLINDS: We are.

GAGELER J: And for the moment I am not seeing much in that point.

MR NEWLINDS: All right. I will move on but I will not let it go because I need to try and explain why I say this tripartite, three-way arrangement is the linchpin really to the argument. So there you have the functions of the mayor. But you look at (i):

any function imposed by an order under section 27A –

which we will come to, and the Minister has a power by order to clarify the functions of the mayor and impose on the mayor such functions as the Minister considers appropriate. So this mayor, who might be from a different political party than the Minister, obviously has a direct interest in what his functions are.

If we go back to the cases that talked about what the indicia of being under was, one of them was the power to influence or change the job description, if you like. The Minister of the State Crown does have that power. There is then at 28 the “Functions of councillors” and they are there set out. They are slightly narrower than the ones of the mayor.

GORDON J: The 27A power, though, is subject to two matters, is it not? One is that the Minister must consult with the Council.

MR NEWLINDS: Yes.

GORDON J: And, second, that it is subject to disallowance.

MR NEWLINDS: That is right. Most of these powers are subject to something as a precondition to the exercise of discretion – sometimes a report, sometimes something like that, and most of them are subject to disallowance. But for the reasons I have put, we say that is not determinative. That does not derogate from the proposition that this office is under the Minister.

KIEFEL CJ: But it says something about whether we are looking at the Executive as having the relevant direction and control rather than the State Parliament.

MR NEWLINDS: It does. The submission that is put against is, well, because it is subject to legislative override or veto, therefore this really is not a power of the Executive – it is a power of the legislature. We just do not accept that.

KIEFEL CJ: Why not? Why is that not an important feature?

MR NEWLINDS: It is a feature.

KIEFEL CJ: Why is it not an important feature?

MR NEWLINDS: Because it is the Minister who makes the initial decision. That decision stands unless and until the legislature does something positive to change it.

KIEFEL CJ: But it may not stand. That is the point.

MR NEWLINDS: It may not stand.

KIEFEL CJ: So you cannot really say the Minister has influence, has control, has direction - - -

MR NEWLINDS: My submission is - - -

KIEFEL CJ: - - -as if it is unqualified. It is.

MR NEWLINDS: I am trying not to put that it is unqualified; I am accepting that it is qualified.

GORDON J: You must, in effect, put the submission that control is the relevant test rather than ultimate control.

MR NEWLINDS: Exactly. That is why I said earlier that - - -

GORDON J: That is really your submission.

MR NEWLINDS: That is one of them. One of my submissions is one should not put a gloss on the concept of control by converting it to ultimate control.

KIEFEL CJ: So some control is enough?

MR NEWLINDS: Yes.

KIEFEL CJ: How much control?

MR NEWLINDS: That is an evaluative judgment that will turn on each particular relationship being examined. But one does need to think of the practical ramifications of how these things work and, importantly – and really in answer to Justice Gordon’s question – the Minister also has the power to not change the functions.

GORDON J: How does that help you?

MR NEWLINDS: Yes, well, I hope so; that is why I said it.

GORDON J: I said how does it help you?

MR NEWLINDS: It helps me, we think, because if we are right and what you are doing is examining the totality of a relationship, relationships are governed and can be identified not just by what a person can do to the other if they choose to but by the fact that they have an ability to do something but can choose not to do it. That becomes an indicia of the relationship and the doing nothing or the ability to say “I have this power, it is engaged because the precondition has been satisfied, but I may or may not choose to use it,” brings into stark relief, we think, a conflict.

Then there is a similar provision to 27A and 28AA in relation to councillors. There is then, starting at 28K, a body called the Code of Conduct Panel, and the Minister appoints the people who are on the Code of Conduct Panel. We can then move forward to 28R. There is a thing called a model code of conduct, which the Minister must make. Under subsection (2) the Minister then has a discretion to amend, revoke or substitute the model code of conduct.

Section 28S sets out what the code of conduct must require and it includes things like the Minister defining what will and what will not constitute a conflict of interest for the purpose of councillors and:

(f) the appropriate or inappropriate behaviour of a councillor in his or her relationships with the community, other councillors and council employees -

Under 28T, the council must:

(1) Within 3 months . . . adopt the model code of conduct –

In 28T(3) the council has an ability but very constrained to “vary the model code of conduct” but only in a way that is allowed under the model code of conduct itself or is approved by the Minister. Then, in 28U:

In performing the functions and exercising the powers of his or her office with a council, a councillor is to comply with the provisions of the council’s code of conduct.

So the Minister has a very direct ability to identify and constrain the activities of councillors and the mayor by reference to that particular power. The council cannot change those rules without either indirectly the permission of the Minister because he has built it into the original code or, expressly by asking the Minister for change. That includes things like how people behave, what they can and cannot vote on for conflicts of interest and the like.

Then there is 28V and following deals with how complaints about councillors are dealt with and what happens is they go to the Code of Conduct Panel. At 28ZJ the Code of Conduct Panel does a report. It gives a notice under 28ZK. Then there is a procedural fairness type practice and the Code of Conduct Panel can suspend councillors and then at 28ZL(2) – so the “three strikes and you are out” provision – if you get three suspensions by the Code of Conduct Panel, the Code of Conduct Panel has to tell the Minister and give the details. Then there is engaged at subsection (3) a discretion on the Minister to remove the councillor.

So there is again constrained or preconditioned by a series of reports from the Code of Conduct Panel but of course what they are reporting on is has there been a breach by the particular councillor of the code of conduct, which is a code that the Minister has complete power to write out.

So the Minister, we say, at this point in the Act has a direct ability to control the activities on a day-to-day basis of councillors and then if there has been found by a separate body to have been a series of breaches a discretion to dismiss or not dismiss. Accepting as we do that that discretion is not at large, once it is engaged it is then a discretion which we think just puts into stark reality the conflict that Justice Gageler is looking for, which is between the particular office and the Executive of the State.

It then deals with controlling authorities, which we can move past I think. At page 281, starting at section 40, there are the election requirements.

KIEFEL CJ: Which section is that?

MR NEWLINDS: Sections 40 and 41. There is nothing particularly magic about it other than of course we all know that both councillors and mayors are elected and therefore self-evidently are not appointed by the Executive. I have dealt with how we deal with the submission that our learned friends make based on that. We say that is not the end of the debate. Then if we go to page 301 of the book, section 73, and this deals with funding.

So just thinking this through from basic principles, you have this statutory corporation created by the State and delegated to it seems to be the complete constitutional powers of the State for the purpose of a particular geographical area, which sounds a little bit alarming when you think about it but of course the way the State ultimately controls how far a local council can go is by controlling the level of funding and borrowing and the like and that is found in section 73 and following and the sources of funds of a local council are identified and subsection (e) is it can obtain grants.

So there you have it, Justice Gageler, a local council will always, of course, want to have as much money as it can. One of the places it can obtain grants from is the State Government. The State Executive makes decisions as to the expenditure of grant-type moneys and there you have a direct conflict between the office of the mayor and the State Executive, if you interpose, because the State Executive presumably does not want to spend as much money as the local council would like.

So you have a tension created between the duty of the mayor to do the best he or she can for the local government area and the Minister who has a more broad duty to do what is best for the State overall, at the same time with the local mayor sitting in the Federal Parliament and therefore there being the conflicting duty that I have spoken of between the State of Tasmania’s Executive and the Federal Parliament.

So that is sources of funds and the other one that is relevant, we now have a new Minister injected into the relationship and that is subsection (i), the Treasurer can approve other means of raising funds and the important power the Treasurer has is over borrowings in section 78 and the council can borrow money but subsection (2) limits the amount it can borrow to:

any amount the Treasurer determines for the financial year.

Now, those two powers, if you like, over the amount of money - that is to be read in context with section 80:

Except with the approval of the Minister, a council may not borrow additional money for any purpose if the annual payments required to service the total borrowings would exceed 30% -

So, there are caps on borrowings and they directly are controlled by the Executive.

BELL J: This goes to your argument respecting a suggested conflict but how does it bear on whether the office of an individual councillor or mayor is under the Crown?

MR NEWLINDS: Because the office itself, which does have, as you have seen, a direct relationship and an indirect relationship with the Crown, has to perform functions which self-evidently involve the spending of money. The raising of money is a decision that the councillors can make for the purpose of performing their functions but their ability to do that is constrained by decisions of the Executive.

BELL J: But when one looks at the incidents of the office of being a councillor or a mayor, one may have regard to remuneration but the circumstance that there is a capacity to constrain aspects of the corporation’s capacity to raise money might be thought rather tenuous to any suggestion of subordination that you need to establish before we get to considerations of conflict.

MR NEWLINDS: I take your Honour’s point but one does read the Act in its totality and of course one of the functions of the mayor is to deal with intergovernmental dialogue which undoubtedly will involve lobbying - - -

BELL J: I think I understand the conflict argument but it seems to me it is - - -

MR NEWLINDS: - - - but that is how I feed it through. I say that the function of the mayor, an indicia of his or her office is to, for want of a more polite term, lobby the Executive of the State Government for money.

BELL J: Accept that is so for present purposes, how does that go to the question of whether the office is under the State Executive?

MR NEWLINDS: It is because a person under is asking the person over for something that is in the gift, if you like, of the person over. It is an indicia of an office being under something else.

BELL J: I see.

MR NEWLINDS: Now, it is a vague - perhaps not a vague term but it is a term that is difficult to articulate other than saying we would just look at the whole of the relationship and then step back and come to a conclusion. But at sections 78 and 80, Justice Bell is entirely right. This is a direct dealing that affects the council and of course the council is not the person who is going to be disqualified, it is the officeholder. The officeholder holds the office, but there is obviously an overlap and a connection between what the councillors are doing, they being the very natural people who make up this body corporate. It cannot do anything without them performing their functions.

Then we come to section 145, which is on page 340. This is the ability of councils to make by-laws which have the effect of law unless disallowed by Parliament in the ordinary way. I know your Honours are familiar with the type of statute but it is that this allowance provision for regulations generally in Tasmania is in section 47 of the Act which is behind tab 6 which is the Acts Interpretation Act 1931 (Tas) and it is section 47 which starts at 457 and it is in the usual terms. You lay the regulation on the table and so on.

Of course, this has been a topic of some notoriety in New South Wales recently. Councils of course can be merged and done away with by decision of the Minister but after a report. If after – and there, there is then a dealing contemplating adoption of by-laws by a new council following a merger – and that is section 151.

GAGELER J: I am sorry, are you relying on these provisions as incidents that give rise to executive influence? How? Sorry, just going back to the disallowance of a by-law.

MR NEWLINDS: I am so sorry. No, I am not. I am drawing your Honours’ attention to them because it is, I think, put against me – or it might be put against me – well, this is a legislative function. That is Justice Gordon’s point – the whole of the government has effectively been delegated, both executive and legislative.

GAGELER J: Have you made a list somewhere?

MR NEWLINDS: Yes, in my outline at paragraph 14.

GAGELER J: I note there are a lot of sections there but I do not think you are relying on each of them as one of the incidents.

MR NEWLINDS: No, these are just the ones I was going to take your Honours to.

GAGELER J: It might be - - -

MR NEWLINDS: Yes.

GAGELER J: - - - speaking for myself it might be useful if you just gave us the eight or 10 points that you rely on at some stage.

MR NEWLINDS: Yes, thank you, your Honour. I will take your Honour up on that but I - - -

GORDON J: Could I add one qualification to it? It might also be useful to identify where they are in terms of the indicia – whether they go to appointment, whether they go to remuneration, whether they go to control, whether they go function – so that we understand how it is it is put by you that there is some sort of executive indicia or sufficient connection between the office and the Executive to give rise to your contention.

MR NEWLINDS: If your Honour pleases. At 171 of the Act:

The Minister make or amend model by-laws . . . dealing with any or all of the subjects on which any council has power to make by-laws.

At 172, the council can adopt the by-laws. Accepting that it is an elusive concept, the fact that the Executive has the power to influence the by-laws that are created by a council is, in our submission, indirectly an influence by the Executive on the functions of the councillors themselves because otherwise they are allowed to make such by-laws as they see fit.

KIEFEL CJ: What you are really saying is that any power that can be exerted by the Executive in relation to a council somehow trickles down to the mayor, has an effect on the mayor.

MR NEWLINDS: I do say that, in an indirect way.

KIEFEL CJ: It is as broad as that?

MR NEWLINDS: In an indirect way, yes, because they are the natural people. I do put that but I also emphasise that what we have here is also direct powers by the Minister to the individual people at the same time.

NETTLE J: Why is the discretion of the council to adopt a model by-law in any way relevant to whether the mayor is an office of profit under the Crown?

MR NEWLINDS: It is not my best point.

NETTLE J: I mean, in the old days of the Companies Act one used to adopt table A from a schedule of the Companies Act. It did not mean that the directors were officers of profit under the Crown.

MR NEWLINDS: I would accept that.

KIEFEL CJ: What are your strongest points?

MR NEWLINDS: My strongest points are the discretion enlivened only, I accept, by someone else doing something and we are back to section 210, the Local Government Board - - -

KIEFEL CJ: The Local Government Board, so that is one of your direct – shall we just concentrate for a moment on your direct points?

MR NEWLINDS: So there is an ability - - -

KIEFEL CJ: Local Government Board.

MR NEWLINDS: - - - there is an ability to dismiss mayors, there is an ability to suspend mayors while inquiries go on. There is an ability to - - -

KIEFEL CJ: Can you give us the section numbers while you are doing it?

MR NEWLINDS: I will, your Honour, perhaps if we are still going at lunch time, if I could have over lunch time to do that? There is an ability to dismiss. It is constrained because the discretion is only enlivened if a board makes a recommendation. There is an ability to change remuneration subject to legislative revocation. There is an ability to change the job description for want of a better word.

KIEFEL CJ: The functions of the mayor.

MR NEWLINDS: The functions of the mayor. So, what you have, you do not have appointment but you do have an ability to control, limit or expand functions and you do have an ability to dismiss.

EDELMAN J: Or the ability not to do any of those things, including if they are desired.

MR NEWLINDS: Exactly, exactly, and the ability subject to legislative revocation to change the pay.

GORDON J: You accept there is no appointment but you accept, do you not, and I think I have asked you this, that both in terms of function remuneration, those two that you put in that category are disallowable, and in relation to dismissal they are subject to the board of review in the way in which you have outlined earlier.

MR NEWLINDS: Yes. Those matters are all put against me and I have endeavoured to explain why we say that does not take away from the fundamental question which is, is this person under the - relevantly, the Minister?

BELL J: You do not suggest in relation to the functions of the mayor in section 27 of the Act that any of those functions are indicative of subordination to the Executive. You rely on sub (1)(f) as instancing a potential for conflict but beyond that you accept that the statutory functions do not evince any element of subordination.

MR NEWLINDS: No, they do not but the Executive can add to them, change them - they can certainly add to them.

BELL J: Only consistently with the statute.

MR NEWLINDS: Yes. But I want to put this politely, they can make you work harder, they can add to your functions and they can reduce or increase or leave alone, your salary. Now, I do stress – and I have said it too many times, so this will be the last time – that the discretion not to act when one is considering a relationship or a connection is just as important as the power to act. In fact, even more so – I mean, if the position was that once the report made a recommendation to the Minister, the Minister had to act in that way, well, there would be much less of an identifiable conflict. The very fact the Minister does not have to act in accordance with what the board says – he cannot run off and do something different, but he can just say, well, I am not going to act.

When we come to the inquiries themselves, one of these inquiries which we are about to come to, can only be started by the Minister. So do not worry about the discretion being activated by a positive report with a recommendation. The very fact that there is a discretion at large to order an inquiry or not order an inquiry sets up a real conflict, we would respectfully suggest, because the most fundamental indicia of the office is that you hold the office. An ability to start an inquiry that can lead to a chain of events that caused you, as the person, to lose the office means that you lose every indicia of the office.

And we will come to it, but there is a discretion which we have not seen yet to suspend during the course of an inquiry only conditioned by the Minister having made a decision that it is appropriate to have an inquiry. And when we come to those sorts of inquiries, they include direct inquiry into the conduct of particular people in the way they have managed their affairs, which of course can have immediate reputational type damage to people just by the act of calling an inquiry.

So, noting the time, your Honours, can I move on. At 214, on page 367, the Minister can issue performance improvement directions.

KIEFEL CJ: I thought we had already been over this.

MR NEWLINDS: Section 214L and M?

KIEFEL CJ: Section 214L – we have been there before.

MR NEWLINDS: I do not think we have been at 214L. It is a short point, but it does sound like a nasty thing that employers do to employees, which is there can be performance improvement directions, which is an ability of the Minister to tell people to lift their game.

And at 214O “Consequences of failing to comply with performance improvement direction”:

(1) If a council or councillor fails to comply with a performance improvement direction, the Minister may do one or more of the following:

(a) suspend all of the councillors . . . for a period not exceeding 6 months;

(b) under section 214, require the Board to carry out a general review . . .

(c) under section 215, establish a Board of Inquiry to investigate the council.

Now, that particular power, strangely enough, considering how constrained or revokable the others are, seems to be reasonably at large. Now, board of inquiry – this is important:

(1) The Minister may establish a Board of Inquiry –

That is 215(1). And the only criterion for making that decision is that the Minister needs to be satisfied that a matter justifies “the establishment of a Board of Inquiry”. Then (3), having established the board of inquiry, the Minister appoints the people or person who make up the board of inquiry. Then:

(5) If the Minister establishes a Board of Inquiry to investigate a council, the Minister, at any time during the inquiry, may suspend all the councillors, or any of the councillors, from office for the period ending on the day on which –

he gives the direction. And so here you have unconstrained, other than a decision that it is an appropriate thing to do, an establishment of a board of inquiry, then unconstrained a discretion to suspend for up to six months. Elsewhere in the Act there is a provision that says you do not get paid if you are suspended but, obviously, there you have the most direct ability to effect control, whatever descriptor you want to use, between the State Executive and the Minister.

The report of an inquiry is dealt with at 224, and at 225, so during the period that the inquiry is happening there is discretion to suspend. There is then a report and the Minister has to consider the report, give procedural fairness under 225 to not just the council but councillors and invite the council or the councillors to make submissions and then after considering those submissions:

may direct a council, councillor, single authority or joint authority to take any one or more of the following actions –

So, that is really, tell them to stop what they are doing. And then at 226:

Instead of making a direction to a council or councillor under section 225(2), the Minister may recommend that the Governor by order dismiss any councillor or all councillors if, in the opinion of the Minister –

(a) the failure of the councillor or council to perform any function has seriously affected the operation of the council; or

(b) the irregularity of the conduct of the councillor or council has seriously affected the operation of the council.

Now, someone asked me, what was my best point? It is probably this series of powers that the Minister has which are most certainly directed not just to the activities of the body corporate but to the activities of the councillors carrying out their functions as councillors, conducting the affairs of the body corporate, without much ado and with no review, we would think, except for the most limited type of judicial review if you could prove that the Minister actually did not think an inquiry was necessary.

There is a suspension power at large for six months and then there is a dismissal power, all of which do not have to be acted on. From the very beginning, the Minister does have the power to convene the board of inquiry but does not have to. Now, if your Honours have the submission, we say that sets up the direct type of conflict that the section is designed to prevent and if I can finish the Act by going to the very end which deals with money. Now, these are revokable but they are prescribed allowances and it is at 340A - - -

GORDON J: Would you say that these allowances come from the Crown; that is, the source of the funding?

MR NEWLINDS: Yes, because the decision to pay allowances to people like councillors - - -

GORDON J: No, the source of the funds - - -

MR NEWLINDS: The source of the funds - - -

GORDON J: - - - given the funding powers and the sources you took us to in the earlier parts of the Act.

MR NEWLINDS: No, not necessarily because the source of the funds will be mixed. The source of the funds will be rates, will include rates or include some money from various governments. It may include borrowed moneys, it may include - I do not know what your Honour’s local council is like - but it may well include parking fines and the like and all the other ways councils raise money.

So, the answer to your Honour’s question is, in part. One would expect that some of this money would come from the Crown. But the ability to raise the money by way of loan, as we have looked at, is constrained by the Ministers but one would have thought in these days of moderation in terms of governmental spending, one can hear State governments saying to local governments, well, you raise your own funds. But the power in 340A is about how much remuneration you can take from the funds wherever they come from and then 340A(5) was the one I was alluding to earlier. They:

are not entitled to any allowances during the period of suspension.

So to conclude, and I might ask later for leave to supplement this, but can I, at a high level, without linking them to sections at the moment, the direct indicia of the ability of the Executive to deal with, for want of a better word, councillors so as to lead to the conclusion that the councillors or the mayor are under the Executive include at least the following: the amount of the remuneration, the expansion of functions, the performance improvement directions and then the resulting suspension if they are not complied with, the calling of a board of inquiry, the suspension during the period of that board of inquiry and the potential dismissal, including, we add, the ability to not do all of those things.

That is at the heart of the relationship and in parts the relationship looks like an employment relationship. Those are the types of things that you would expect an employer to be able to do in relation to an employee. Of course, at other parts it does not look anything like an employment relationship because the person is elected. So it is a special relationship governed by the statute but one would think that it would be a very easy submission to make that any employee is under their employer because of the usual indicia of that relationship.

One can certainly see in this relationship those same types of indicia in circumstances where there obviously can be conflicts in duties. I did not take your Honours to the particular sections because I think this will be common knowledge but of course the council electoral boundaries do not conform with State and federal electoral boundaries. So immediately you can see a conflict between electorates.

The second point is the people who are entitled to vote in local councils include corporations and include owners of property within a particular electorate. And so you have a person representing a different – the hypothesis is this same person is sitting as a mayor of the local council and a member of the Federal Parliament, either the lower House or the Senate.

In the Senate their electorate is the entire State. If it is the lower House, they will have a different electorate than their local government electorate and there will most certainly be different constituents to whom they owe, we would respectfully suggest, conflicting duties.

Now that is the wrong conflict, I accept, but then you look at the conflict that must obviously exist between the Executive Government at the federal level and at the State level and then you look at the conflicts between the Executive and the local councillor.

It is a triangle and it is important not to fall into the trap to start focusing only on other sides of the triangle. But when you look at it all together, our respectful submission is there is enough to come to the conclusion that the mayor is under, for the purposes of section 44(iv), the State Executive of Tasmania and, therefore, is disqualified for standing for the Federal Parliament. Those are my respectful submissions.

KEANE J: Mr Newlinds, before you sit down, do you accept that a member of State Parliament is not disqualified from standing for Federal Parliament?

MR NEWLINDS: There is a specific carve-out for Ministers of State.

KEANE J: But what about a Member of Parliament of the State who is not a Minister?

MR NEWLINDS: We would respectfully suggest that the answer to that question is that the State Parliament is not under the Crown. Indeed, it is arguable that it is over the Crown or it is at least equal to the Crown. So we would say no. And as Sykes v Cleary says, it is that balance to ensure that the ability of Parliament to ultimately be over the Crown is maintained.

KEANE J: Would that answer change if the remuneration of State parliamentarians was fixed by an agency of the Executive Government of the State?

MR NEWLINDS: No, because it still would not be for constitutional purposes, it is just not under, because ultimately the legislature can get together and get rid of the Executive.

KEANE J: I am just wondering whether your argument that you have been presenting is not proving too much, really, in the sense that you have certainly demonstrated that local government is subordinate to the State in its legislative and executive manifestations, but we are really concerned with subordination to the Executive Government.

MR NEWLINDS: Yes.

KEANE J: And, strictly, the Executive Government.

MR NEWLINDS: Yes. But, in my submission, in over-proving – and I might have proved that it is also subordinate to the legislature – that does not stop it being subordinate to the Executive.

KEANE J: It depends on how you look at it, I suppose – whether the mischief at which section 44 is directed is directed at a relationship with the Executive Government per se and the Executive Government only where that mischief is not seen to apply where the other governmental organs of the State are also involved in a relationship.

MR NEWLINDS: I see your Honour’s point. My answer is, though, that one can certainly be under more than one master.

KEANE J: Yes, but you have got to – as you have said to us – we have to look at this in context and the context is office of profit under the Crown in a context which, as Blackstone says, is concerned with the profits of the office being in return for the service rendered to the Crown.

MR NEWLINDS: Yes.

KEANE J: And, not rendered to the good burghers of Devonport.

MR NEWLINDS: Yes. I understand your Honour’s point, but the highest I can put it is that part of the role of these people that is under is an executive role. And, I accept that part of it looks very much like a legislative role and is under ultimate control of the Parliament. But, my submission is, putting both together does not mean you lose the individual.

KEANE J: I understand.

MR NEWLINDS: If your Honours please?

KIEFEL CJ: And, you will prepare that note.

MR NEWLINDS: I will.

KIEFEL CJ: Yes, as soon as possible.

MR NEWLINDS: As soon as possible. I will try and do it over lunchtime but if we do not manage that it will be tomorrow morning. But, I will try and do it at lunchtime.

KIEFEL CJ: It would be best if it was done during the course of the proceedings. Thank you, Mr Newlinds.

MR NEWLINDS: Thank you, your Honour.

KIEFEL CJ: Yes, Mr Solomon.

MR SOLOMON: If your Honours please. Your Honours, I propose to do four things – a very brief introduction to see if I can sketch out what might be the issues or the controversies as between Mr Martin and the contradictor. Second, to identify and say some things about the three features of the statutory scheme that, it might be proposed, most need an answer by my client and hopefully, otherwise, no more in respect of the scheme. Third, some references to the 1941 report – for reasons I will develop if I may. Then, lastly, some brief conclusions. I hope in doing all of those things to be short.

In respect of the matters of introduction, at least as between the parties, it is accepted that the two offices – I withdraw that - it is accepted that being mayor of Devonport and a councillor comprise an office – plainly enough on a hundred years of jurisprudence – and, further, an office of profit – again for obvious reasons.

Next, it is contended by Mr Martin, the contradictor, and, I think everyone else, that the reference to the Crown is a reference conceived in its third use in Sue v Hill. It is a reference to the Executive, the Government. Accordingly, insofar as there are construction matters, the question of construction is the way in which the incidents of the office – each office – relevantly connect with the Executive by use of the term “under”. That, of course, speaks to a relationship or a nexus.

We do not seek to put a gloss on that, that is the relevant question. In this case, plainly enough, it will ask as to the sufficiency of the connection and the place at which the Court will find the relevant matters evidencing sufficiency or otherwise is the legislative scheme to which I will go in a moment. Can I, while I am introducing topics, say in response to a question Justice Edelman raised with my learned friend, there is a complex question as to whether judges or some judges may comprise office of profits under the Crown.

The correct answer to that question would at least involve, first of all, an evaluation of history, including but not limited to the Convention Debates with an eye on the precise office being evaluated. Secondly, a question whether in the constitutional context in Australia, the features of the Constitution comprising separation relevantly speak or not to the construction of 44(iv) in respect of judges. We do not propose to make a submission one way or the other. We seek to say it respectfully that in the case for answer today the question whether or not judges or some of them comprise office of profits under the Crown need not be determined. Can I deal next with the three features of the statutory scheme?

EDELMAN J: You say that need not be determined because you do not embrace then any technical meaning of the words “under the Crown” such as that that was adopted by Rogers or that was raised during the course of the hearings in 1941 that it was a term which encompassed appointments from the Crown and included circumstances where the appointment was part of the public service.

MR SOLOMON: The answer to your Honour’s question is we do not embrace that. Can I deal with the “from the Crown” conception which may be relevant to today’s issues when I come to the 1941 report? In addition, the feature of judicial office that may raise the question is the circumstance of executive appointment. We also, as your Honours will have seen, do not contend to your Honours that the circumstance of appointment either way is determinative of the relevant question today. We ask the Court to evaluate the sufficiency of the relationship looking to the relevant parts of the legislative scheme.

I said I wanted to deal next with the statutory provisions. There are three amendments made by the November 2017 Tasmanian Act which, on any view, may be said to move the dial - using that term as a colloquial term - on executive control. They are all relevant for the question today and they are as follows. My learned friends dealt with them but I want to reintroduce them to make some submissions on them.

Would your Honours go first, in the tab 5 version of the Act – that is the post-November 2017 version – to section 28K. As your Honours know, a Code of Conduct Panel is established, the Minister appoints members to it. There may be made a model code of conduct. It is made to the whole council. And at section 28V there can be a complaint against an individual councillor and, upon satisfaction, there can be a suspension and if there are three there can then be a removal.

We just want to say these things about that statutory scheme. First, that the panel is not subject to ministerial direction. Second, that the panel is required to deal with complaints as specified in the statutory scheme. Third, that within the investigation there must be afforded to councillors natural justice.

GAGELER J: How is that relevant?

MR SOLOMON: It speaks, first of all, to the degree of control being exercised and, further to that, to the prospect of supervision in respect of it.

GORDON J: You mean by the Minister?

MR SOLOMON: I mean by a court evaluating the conduct of the body. That is one of the features, we submit, is relevant to all of the amendments that I am going to take your Honours to – is the circumstance that the lawfulness of the acts in relation to the bodies can be subject to judicial review. That might be true of any statutory power of this type. But as your Honours evaluate sufficiency of control, we submit it is a relevant feature of the power.

GAGELER J: It would be exactly the same in relation to a public servant employed under standard public service legislation throughout the States.

MR SOLOMON: Yes, and if the contention was that a body undertaking investigations in relation to the public servant spoke to the sufficiency of the connection, we would make the same point.

That is all we seek to say about those provisions. I should, before going to the second point, contextualise the submission I am seeking to make. There are lots of features of this statutory scheme that are wholly unconnected with the State Executive. And I am not proposing to take your Honours to them this morning. My learned friend took your Honours to a cavalcade of relevant statutory provisions.

For the purpose of evaluating the true controversy I want, this morning, to take your Honours to the three features of the statutory scheme that might reasonably be put against my client as comprising a control, using that term carefully, in respect of the office either of mayor or councillor. It is interchangeable for these purposes. The first I have dealt with and identified the features of it on which I wish to draw some matters to the Court’s attention, which I have done.

Let me turn to the second. It is the local government boards. Your Honours have seen this morning at section 210 that a local government board is established. It is appointed by the Minister. Under section 214:

The Minister may require the Board to carry out a general review of a council.

Not a councillor or equivalently the mayor. In respect of that review there are statutory factors that must be taken into account. The board reports ink writing to the council. At the conclusion of that process there may be ordered – I am looking now at 214E – various structural matters in relation to councils and contained within that colocation of steps at (k) the prospect of all of the councillors of a council being dismissed. That power, plainly enough, is connected with the structural review, it is amenable to review, and it speaks to all of the councillors, not any particular councillor or equivalently the mayor. That is the second feature of the statutory scheme introduced by the November 2017 amendments relied upon.

The third feature is the board of inquiry. Your Honours have seen this; I will be brief. At 215, “The Minister may establish a Board”. There needs to be a satisfaction of a state of affairs before that occurs. Its functions are specified in 216. Within those constraints there may be actions taken consequent upon a report from the board of inquiry identified through sections 225 and 226.

Insofar as the relevant focus is on the Minister, because we are asking as to the sufficiency of connection with the Executive, at least the following might be proposed. It is not a very powerful power conferred on the Minister. That is not to downplay that dismissal is a significant event but it is conditioned in various respects, all suitable potentially to review in the courts and, more particularly, in section 226 to the formation of an opinion by the Minister.

This is an incident of the office. It is relevant or potentially relevant to the issues before your Honours and, in looking at the power afforded to the Minister in particular to dismiss, the circumstances identified are submitted to be highly relevant to the force of the connection the subject correctly of the inquiry required by the term “under”. That is all we wish to say about the relevant statutory regime.

GAGELER J: Do you want to say anything about performance improvement directions?

MR SOLOMON: Not further to all of that. I have notes on performance improvement directions but as a submission the power there contained is not as significant and does not create a sufficiency of connection that is closer than the three withdraw examples and the three powers that I have just taken your Honours to as a submission and in answering your Honour’s question.

KIEFEL CJ: Mr Solomon, just so I am clear, your principal submission in relation to the board of inquiry powers is that it is subject to judicial review?

MR SOLOMON: That is an important feature of the powers. Did your Honour ask - - -

KIEFEL CJ: Is that your principal submission in relation to how one views the ministerial input into the board of inquiry - that is, his ultimate decision in relation to any dismissal, the opinion he forms being subject to review?

MR SOLOMON: Yes. We would seek in respect of the board of inquiry matters very gently to reframe that point to identify not only the prospect of review after the event but the requirement to form an opinion in advance of exercising the power. They are obviously connected points because the requirement to form an opinion speaks to the area that judicial review might permissibly have regard to.

GORDON J: I had understood in relation to the board of inquiry there were two stages. One is that the Minister may give a direction but only after having received a report and having considered it, as well as any submissions, so that in a sense informs that power, and then secondly, instead of making a direction the alternative is for that Minister to form an opinion by reference to the matters set out in section 226(1), in making a recommendation to the Governor.

MR SOLOMON: Thank you, your Honour. In answering the learned Chief Justice, my answer focused on the dismissal power alone. It is relevant to the question and, as your Honour Justice Gordon has identified, there is not only the dismissal power to consider, there are the other powers exercised contingent on receipt of a report.

KIEFEL CJ: And you are also referring to the subject matter of the inquiry?

MR SOLOMON: Yes, I did.

KIEFEL CJ: Being the council itself?

MR SOLOMON: Yes. The legislative provisions in respect of all of the matters identified provide for the powers to be exercised by the boards appointed by the Minister and that, of itself, is confining and it is singularly relevant where - - -

KIEFEL CJ: You mean it is confining of the Minister’s powers?

MR SOLOMON: It is confining both of the power that the Minister may be conceived to have to exercise and it is confining of the power that the board is able to exercise because the grant is limited.

KIEFEL CJ: Examples of stringent statutory control, you say?

MR SOLOMON: I am speaking against a sufficiency of connection between the councillor on the one hand and the Minister on the other. It is further a feature of some of these provisions that they speak not to councillors but to the council.

KIEFEL CJ: Yes.

MR SOLOMON: So if the evaluation to be undertaken is an evaluation of ministerial control over councillors, it is essentially an answer to that point to speak to the circumstance that the power exercised is in respect of the council as a whole.

I was going to take your Honours later - let me speak to it now - to the remuneration schedule in the regulations. Let me do that very briefly; it is in volume 2 of the appeal books, joint books of authorities. It is at tab 7, page 494. There are a series of matters in respect of remuneration that we have identified in our written submissions. I do not wish to repeat them. The feature of the schedule that might be perceived is the way in which, in the making of the allowances, it is obviously divorced from any individual councillor or mayor; that is, the allowance for the councillors is provided for in a schedule speaking to all of the areas of Tasmania in differing amounts without distinction between one councillor or another in a council. So, in looking at the incident of the office of any particular councillor, they received the allowance identified in this schedule. Can I turn next - - -

KEANE J: Mr Solomon, is the overarching point that you are making that retaliation by the Executive Government against a mayor or a councillor who, in the Federal Parliament failed to accommodate the Minister’s views as to how the mayor should exercise a vote in the Federal Parliament, that that sort of retaliation would be a consideration, or that the reason for that retaliation would be a consideration irrelevant to the various powers that the Minister has under the Act.

MR SOLOMON: That is precisely the point that we are seeking to make; that is, that because the powers are constrained, variously interposed bodies often require the formation of an opinion and generally are subject of quite plump judicial review. Insofar as judicial review is concerned, it could not rationally be conceived that a personal attempt by the Executive to speak to an individual councillor is conceived by the statutory scheme and more specifically by the series of amendments made in November 2017 within it.

Thank you, your Honour. Can I next ask the Court to go to the 1941 report? Before someone asks me why are we going to the 1941 report - maybe no one was going to – can I tell you? There are two reasons why going to the 1941 report - were you going to ask me, Justice Gageler? I am sorry, your Honour is smiling.

GAGELER J: I might have but you have pre-empted me.

MR SOLOMON: There are two reasons why going to the 1941 report - - -

KIEFEL CJ: Is one of them because Victoria has referred to it?

MR SOLOMON: There might be three reasons, your Honour. But, if there are, that is the third of three. The first two reasons are these. One is that in Sykes, the High Court observed that the 44(iv) phrase is obscure. So, your Honours might – or we boldly say, would – be assisted by understanding the way in which the phrase developed from its source – which I am going to take your Honours to briefly. That is the first reason.

The second reason is that the plurality in Sykes made reference to the report in a series of places and, at least in one respect, adopted a matter contained in it. So, in that circumstance, it might be relevant for your Honours’ consideration for me to take your Honours to - - -

EDELMAN J: It is a report based on historical scholarship of some of the finest scholars in the last century.

MR SOLOMON: That is so. Let me then do these things, if I may? Would your Honours please turn to page 1476 in volume 4 of the joint book of authorities? Can I tell your Honours what, for the next few minutes, I am going to lead up to? The relevant legislation first deploying the term “office of profit under the Crown” was an Act in 1705 - - -

KIEFEL CJ: Was the phrase then from the Crown?

MR SOLOMON: It was both. That is the point that I wish to lead up to. So, at page 1476, in paragraphs 14 and 15, there is an historical excurses leading to the proposition in the last sentence in 15:

Finally, in 1701, by a provision in the Act of Settlement, the complete exclusion of office-holders was enacted –

The complete exclusion of officeholder, as the report records, proved unworkable for a series of reasons – including the need to hold Ministers to account in the House. And, over the next six years, there were two pieces of legislation – 1705 Act – and in order to deal with the union with Scotland, a re-enactment in 1707. The report identifies the consideration for the 1705 Act. I will not take your Honours to that. Your Honours will see at paragraph 17, that:

The Succession to the Crown Act, 1707 . . . was a re-enactment of a similarly entitled Act of 1705 –

And although it is – the provisions are provided in a number of places but the relevant provisions are sections 24 and 25. Section 24 has been taken to speak to new offices and used the term “under the Crown”. And, section 25 has been taken to speak to old offices and uses the expression “from the Crown”.

Your Honours, for the purposes of this question do not need to identify how “from the Crown” may be different to the expression “under the Crown”. It might be that “from the Crown” speaks more directly or only to appointment and it might be that “from the Crown” speaks to a different conception of the appointor.

GORDON J: Is that not the point that is made on page 1478 in the last few lines of that first full paragraph?

MR SOLOMON: Yes, thank you, your Honour. That being so, the assistance your Honours might derive from the dichotomy “under the Crown” and “from the Crown” perhaps is, at least in 1707, that “under the Crown” may not have been conceived as limited to appointment only. Certainly the 1941 report would not have suggested that it was so limited.

EDELMAN J: Although it would encompass circumstances by appointment only without further inquiry provided it was a member of the public service.

MR SOLOMON: Yes, and in Australia Sykes, perhaps by virtue of that consideration or slightly broader considerations would now establish that as doctrine in respect of public servants. At 19, the Court identifies - - -

GORDON J: I do not think it is the Court, is it, I think it is the - - -

MR SOLOMON: I am sorry, thank you, your Honour. The authors of the report identify the three chief principles which were cited by the Court in Sykes v Cleary. So as your Honours consider the way in which our learned friends deploy those features it is submitted to be relevant that your Honours identify the way in this report in which those features were deployed, or putting that point more starkly, as a matter of construction of the phrase “office of profit under the Crown”, your Honours will not be especially assisted by having regard to stated considerations that might fall one way or the other in relation to these three matters.

Can I next, for the assistance it may provide, take your Honours to page 1510. There are four memoranda in the joint book of authorities by the Attorney-General. There are further parts of the report by distinguished authors. This part of the report is respectfully helpful at pages 127 and 128 for the evaluation of the historical development of the Act, in particular, between 1701 and 1707.

KIEFEL CJ: The report is not complete, I take it.

MR SOLOMON: The report in the joint book of authorities is not complete, no.

KIEFEL CJ: So the memorandum by Sir Gilbert Campion, to which Justice Edelman has made reference, is not there in full?

MR SOLOMON: Actually, your Honour’s appetite is whetted. The first page and nothing more is there.

KIEFEL CJ: Yes, you are referring to pages 127 and 128.

MR SOLOMON: Yes, thank you, your Honour. Your Honours, the history there is a useful summation of the history. More importantly, at pages 135 and 136 - - -

GORDON J: I am sorry, Mr Solomon. Would you explain to me again why this is helpful? I understand it sets out the history but what is the proposition I am to take from these pages you are taking us to?

MR SOLOMON: The proposition is to identify that between 1701 and 1705 there was an amendment in the statutory provisions to achieve the objective of reducing the absolute prohibition and speaking to why that occurred and further – that is why this passage may be of use. The report also evidences that sections 24 and 25, among other things, represented a compromise between the Commons and the Lords at the time as to the scope of the prohibition or otherwise.

All of that, with respect, is likely to be too esoteric to be of much use to your Honours today. The relevance of the report is the dichotomy between “under the Crown” and “from the Crown” on the one hand, and further to that the circumstances that those involved in the preparation of the report conceived, by reference to an evaluation of 350 years of authorities and statutory provisions, were conceived in 1705 and 1707 to fall within the conception of “under the Crown”.

GORDON J: Just so I am clear, at the top of page 136, in the third memorandum from the Attorney-General, in a sense he summarises, as I understand, what you have just put. Is that the bit that, in a sense, you wish to draw to our attention?

MR SOLOMON: Yes, thank you, your Honour. I wish to draw your attention to the passage at the top of 136 as follows:

In considering whether an office is under the Crown one has to consider who appoints, who controls, who dismisses and the nature of the duties. If the Crown itself has the power of appointment and dismissal, this would raise a presumption that the Crown controls, and that the office is one under the Crown. If, although the Crown appoints, the duties are not duties connected with the public service, the office would not, I think, be an office under the Crown within the Act.

Then the report spends some time on the “Regius Professors” at Cambridge and the like and whether they fall within or outside the phrase as conceived.

The phrase in the Australian Constitution, of course, has a proper construction, but because it has been identified as obscure, at least these points follow. First, your Honours may be more assisted than would sometimes be the case by a 1941 report of the House of Commons. Secondly, it might be not the sort of provision which lends itself to a test which is other than evaluative matter by matter by reference to the relevant statutory scheme.

That is our submission in this case. We have contended that the passage at page 136 is a useful organising principle but what we mean by that is that it is a useful way of identifying factors that are correctly evaluated in looking at whether an office of profit is or is not under the Crown.

The factors include appointment, dismissal and supervision and control, as conceived by reference to the statutory scheme, and in the end the relevant question for your Honours is to form a view on the sufficiency of the connection.

GAGELER J: There is a sentence at page 136 which says:

If, although the Crown appoints, the duties are not duties connected with the public service, the office would not, I think, be an office under the Crown within the Act.

Is that part of your argument? Do you embrace that?

MR SOLOMON: We embrace that there can be Crown appointments which do not fall within the phrase “office of profit under the Crown”, yes.

GAGELER J: That is not what is being said. It is being said if the duties are not duties connected with the public service – whatever that means – it would not be an office under the Crown.

MR SOLOMON: Yes.

GAGELER J: Do you adopt that? Is that part of your argument?

MR SOLOMON: Not if narrowly conceived.

EDELMAN J: The difficulty with not giving us the whole of the report, including all of its annexures, is that this paragraph, including that line, seems to have been taken directly from Sir Gilbert Campion’s evidence where he places it in context and explains what he means. As I understand what he says in his evidence is that “under the Crown” means the public service and that is a necessary requirement which is the explanation for why the Regius Professors and the Provost of Eton are exempted.

MR SOLOMON: That being so and recognising that this was 1941 – and I regret that the authorities do not contain the memorandum and apologise to the Court for that being so – he also says that there can be appointments in respect of statutory authorities that fall within the conception of the phrase. So, in answering Justice Gageler’s question of commenting on whether or not we accept the proposition contained in that sentence, without meaning the answer to be unhelpful, it depends what the public service is said to connote.

GAGELER J: Well, I am just trying to understand to your argument.

MR SOLOMON: Yes. Our argument is not limited to the public service in the way in which that term is spoken of in Sykes v Cleary. Seeking to put that point better, Sykes v Cleary spoke to an officer in the public service. We accept that in evaluating a statutory scheme the constitutional prohibition need not be that limited. The relevant question is to evaluate the scheme and look to sufficiency of connection and that test speaks to the relationship and not only the office.

GAGELER J: What part do the duties of the office play in your analysis, if any?

MR SOLOMON: The duties of the office may speak to - the incidence of the office is relevant, that is or includes the duties of the office. They are relevant because in evaluating what, if any, control the Executive can or cannot exercise they speak to the nexus or the connection. So that one question raised today is whether the conception of office is spent on the agreement between the parties that there is an office of profit here in respect of councillors and the mayor and because the point is agreed, whether or not the office is spent for the evaluation is a little hidden.

The answer to your Honour’s question is that the incidence of the office – or the duties attached to the office are relevant and the submission is they are relevant because they will speak to the sufficiency or otherwise of control when one looks at the statutory scheme, whether that be narrowly for the public servants or more broadly for other officeholders appointed under a statutory scheme, that is, by the Executive.

NETTLE J: Is that why Regius Professors and the Provost of Eton are not officers of profit under the Crown because there is not sufficient Crown control of their function?

MR SOLOMON: Yes. There are 15 examples in the report – Provost of Eton and – if your Honour is enthused there are a series of offices which in different ways are not relevantly under the control of the Crown that are nevertheless appointed by the Executive.

NETTLE J: It is relevant to our question, is it not? One could perhaps reason by analogy with reference to those examples that the extent of control or offices in this case are or are not sufficient to bring the man within section 44(iv).

MR SOLOMON: Yes. The answer I seek to give to your Honour is this. In identifying the relationship between the office on the one part and the Crown on the other, one can conceptually reason, in effect, by analogy – which is close to a question Justice Edelman has previously phrased of me – identify that the public service is in and then test cautiously whether something outside that is in or out.

We are proposing a test that is likely to lead to the same place but is not that test which instead invites inquiry carefully of the totality of the statutory scheme and then asks as to the sufficiency of connection between the office on the one part and control and other features evidenced in that scheme in respect of the office on the other.

NETTLE J: Well, all of your submission is in a sense directed ultimately to the extent of control rather than the nature of the office. Is that correct?

MR SOLOMON: Yes, that is fair. We do not seek by that - - -

NETTLE J: So might you not derive some advantage also from invoking the duties of office?

MR SOLOMON: Yes, because they may speak to the sufficiency of control.

GORDON J: I do not understand how you can separate them, for my part. Do you seek to separate them?

MR SOLOMON: It might be that I have invited your Honours to explore the duties of office by taking your Honours to the passage on page 136 and asking your Honours to have regard to that. The contention we make is to explore the relationship between the office which of course comprises its features, therefore, its duties on the one hand and the Executive on the other as evidenced by the legislative scheme. It might be that I have invited the Court unhelpfully to explore duties of office when on the conception of the controversy in issue it is accepted that in relation to these offices the relevant question is, at least as between the contradictor and Mr Martin, the sufficiency of connection.

Restating, if I may, our submission on the ultimate issue, our submission on the ultimate issue is that by evaluating the statutory scheme under consideration there is a limited, almost minimal, power able to be exercised by the Minister of the relevant type in relation to either office conceived through control without providing a precise definition of what “control” thereby means.

GAGELER J: Is control the touchstone, according to your submission? Is that what we are ultimately looking for?

MR SOLOMON: Control is an important feature. We do not think the relevant phrase usefully enables it to be put that high because, obviously enough, appointment is important. Removal, if that is conceived as different from control, is important. The connection needs to be evaluated as a whole by reference to the statute. None of that is meant to cavil with the proposition that control invariably would be important and here is important.

KIEFEL CJ: It could be determinative.

MR SOLOMON: Yes. The absence of control, or the completeness of control, invariably would be determinative, but that is not this case either. If that is convenient to your Honours, I have about 10 minutes left.

KIEFEL CJ: Yes, thank you. The Court will adjourn until 2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Newlinds.

MR NEWLINDS: Your Honours, before my learned friend recommences, we have distributed over the lunch break a document entitled “List of provisions provided by Ms McCulloch” and they would be the matters that Justice Gageler and the Chief Justice were pressing me for. I will not say anything more about the document for the moment.

KIEFEL CJ: Thank you very much. Yes, Mr Solomon.

MR SOLOMON: If your Honours please, your Honours, I only want to do this. I want to take the discussion which occurred in the 15 or 20 minutes before lunch and see if I can synthesise Mr Martin’s submissions informed by that discussion. Insofar as the 1941 report is concerned the totality of the relevant pages are 1 to 180. I again apologise and regret that the Court does not have those or at least does not have all of those.

The Commonwealth is providing some of them in my learned friend the Solicitor-General for the Commonwealth’s submissions - at least the memorandum by Sir Gilbert Campion and some statements he had earlier said may inform the dialogue that we are having, unsatisfactory as it is. We will ensure the Court is provided with a copy of those pages urgently after Court. For the purposes of submission, can I return, please, to page 136?

GAGELER J: Could you remind us what tab it is, please?

MR SOLOMON: Yes - volume 4 of 4, tab 30. If your Honours please, first, Justice Gageler raised a question with me as to the sentence:

If, although the Crown appoints, the duties are not duties connected with the public service, the office would not, I think, be an office under the Crown within the Act.

Can I say two things further about that? The first is that, at least looking at page 152, which your Honours will get after lunch, it may be that there was a conception by at least some individuals that the relevant prohibition spoke to the public service, however that concept or term might have been understood. Seeking fairly to read the report it was probably understood in the narrow non-political office civil service sense. If that be the relevant question of course Mr Martin is not within it but, as your Honours know, that is not the test that we contend for in relation to 44(iv). That is the first point.

The second point is to identify why, for example, the Regius Professor of Cambridge was not considered by some of these individuals to hold an office of profit under the Crown. It is not perhaps clear whether the conclusion follows for the individuals from the duties which attach to the office on the one part or - and we say it is different - the lack of sufficiency of connection with executive control on the other. When we provide your Honours with the whole of pages 1 to 180, your Honours will see, for whatever it is worth, some discussion of that on page 32. It is not probably useful for me to countenance the answer on that office.

Let me make this submission. An office, as understood in Australian jurisprudence, is a position to which duties are attached. Section 44(iv) looks at the nexus between Crown control, on the one hand, and identifying it in the superior/inferior conception, Crown control over or in respect of those duties on another. In that sense, it is obviously correct and sensible to have regard to the duties as part of considering the relevant question which your Honours need to consider. One has regard to them, in particular to test the sufficiency of the connection between the duties associated with the office, on the one part, and executive control or not, on the other.

None of that answers whether, in this report for some of the offices under consideration, the reason the prohibition did not apply was merely by virtue of the status of the office or the duties associated with it. In this case, it does not matter whether one focuses on the status of the offices or the duties associated with them as an answer or instead as an integer in the evaluation. Evaluated either way the conclusion follows either that the duties or the office are outside the conception, and comfortably so, or, as we would submit, correctly applying the test, the sufficiency of connection with the Executive is weak, for the reasons we have identified in writing and earlier today.

Summarising that in a sentence or two, Mr Martin asks the Court to evaluate the sufficiency of connection. He notices that he is not appointed, that the controls in the statutory scheme are reasonably evaluated weak, that they are circumscribed in their important respects, that they are amenable to judicial review, that it is unthinkable that they could be exercised for

purposes connected with controlling an individual councillor or mayor and, in the circumstances, the Court should conclude there to be no disqualification and having reached that conclusion, in the relevant way on a remitter Mr Martin should be declared duly elected. If your Honours please.

KIEFEL CJ: Yes, thank you. Solicitor-General for the Commonwealth.

MR DONAGHUE: Your Honours, I propose to focus on the point of disagreement between the parties, being the meaning of the words “under the Crown” in 44(iv) of the Constitution. All of the parties, as we understand it, acknowledge that the word “under” in that phrase “under the Crown” is used to connote an inquiry that is concerned in some way with control by the Executive Government over the office. There are, though, significant differences as to the test that should be deployed to identify the relevant kind of control.

In particular, as we understand the submission of all three of the other parties before the Court, each identifies the appropriate test as an evaluative one that draws on indicia including not just the power to appoint, the power to remove, the power to influence the remuneration but also control over functions of the office, for some parties the nature of the duties of the office, for some parties some notion of accountability to the Executive.

For example, you have just heard Mr Solomon, on behalf of Mr Martin, put the test in terms of the sufficiency of the relationship between the Executive and of the officeholder or the sufficiency of the connection. Ms McCulloch says that it is the degree of the relationship that is important, and I think Mr Newlinds frankly accepted that that was a somewhat elusive test. Victoria say in paragraph 23 of their submissions:

It is not possible to state precisely the degree to which an office created under an Act must be independent of the . . . Government -

The Commonwealth’s submission in respect of all of those variants of the evaluative test is that the Court should strive, if possible, to construe section 44(iv) in a way that does not turn upon the answer to an evaluative inquiry of that kind for the very reasons that the Court rejected a test proposed in the context of section 44(v) of the Constitution in Re Day as an appropriate means to ascertain the operation of the section.

If I could ask your Honours to go to Re Day, it is in the joint book of authorities, volume 2, behind tab 20. If I could start with a passage in your Honour Justice Gageler’s reasons at paragraph [97], this is a passage that was referenced in a footnote in the judgment of the entire Court in Re Canavan at paragraph [48]. The sentence in Re Canavan that attracted the footnote was - and it is just a single sentence:

Stability requires certainty as to whether, as from the date of nomination, the candidate for election is indeed capable of being chosen to serve -

and in a footnote to that sentence there was a reference to paragraph [97] of your Honour Justice Gageler’s judgment in Day, referring to section 44:

Its blunt and limiting effect on democratic participation tells in favour of an interpretation which gives the disqualification set out in s 44(v) the greatest certainty of operation that is consistent with its language and purpose. Senators and members of the House of Representatives should know where they stand. They, and their electors, are entitled to expect tolerably clear and workable standards by which to gauge the constitutional propriety of their affairs.

That sentiment, in our submission, applies equally to 44(iv), as it does to 44(v), and points against any wide or evaluative assessment of sufficiency of connection or degree of relationship. If an alternative construction of the provision is reasonably open, that would promote a greater degree of certainty for both senators and members of the House and those who are called upon to vote for them.

Consistently with that observation in paragraph [97], your Honour Justice Keane at paragraph [156] and your Honours Justices Nettle and Gordon at paragraph [263], as well as your Honour Justice Gageler in the very next paragraph at [98], all rejected a test that was identified as being “vague or unduly evaluative or impressionistic”. Those kinds of words were used as the explanation for rejecting a proposed construction of the provision.

In an attempt to identify, then, what the Commonwealth submits would be a tolerably clear and workable standard that governs the operation of section 44(iv), I propose to develop three points, orally. The first point is that both the text of 44(iv) and its context – meaning here its purpose and history – suggest that the first step in determining whether an office is under the Crown should be to focus on the power of appointment for the occupant of the office and that where that power is present, the office is under the Crown without the need for any further inquiry.

In that respect, we submit that the meaning of “under the Crown” is, relevantly, the same as “from the Crown”. Both of those phrases appear in, as your Honours have already seen, in the historical predecessor provisions. Were your Honours to accept that submission, we submit that very often there would be a clear and bright line that would govern the operation of section 44(iv). It would be easy to determine whether or not that the power of appointment resides with the Executive Government. And, the answer to that question would usually – not always, but usually – answer the question.

GORDON J: It is a presumption subject to challenge.

MR DONAGHUE: No, your Honour, in my submission, if present that is the end of the inquiry. If not present, then there is a further inquiry that remains to be undertaken. It may be – at one stage in answering questions, Mr Newlinds came close to that position, I think. I think he accepted that it might be that a power of appointment would be enough but he said that is not the end of the story. We agree in that respect. It is not the end of the story. But, if present, it is enough in our submission.

EDELMAN J: Is that to say anything more than “under the Crown” includes “from the Crown”?

MR DONAGHUE: Your Honour, I am not sure if it is to say – yes, I think the answer to that question is, yes, your Honour. In our submission, there is no need to draw a distinction between those two words. So, in our submission, really, “under the Crown” relevantly means the same thing as “from the Crown”. But, what must be - - -

EDELMAN J: If “from the Crown” is confined to “appointed by the Crown”, then there may be a scope to go beyond the concept of “from” when you are talking about “under the Crown”. But, it becomes a semantic point.

MR DONAGHUE: It does, yes, indeed.

NETTLE J: Mr Solicitor, you do not allow for any Regius Professor-type exception then?

MR DONAGHUE: No, for reasons that I will come to, but the answer is no. In our submission, where one has a case – and it is, we think, a rare case – where the Executive does not have the power to appoint the occupant of an office but the Executive does have powers to remove the occupant of the office or powers to alter the profit that is associated with the office by altering the remuneration then, in those circumstances, there is, we submit, an inevitable need to have recourse to an inquiry that involves an evaluative element. In that context, the question becomes, is the nature of the powers that one finds within the applicable statutory framework relating to the office – such as, that in substance – the Executive controls the capacity for the person to hold the office or derive the benefits attached thereto.

That is, we think, not a long way from a question that your Honour Justice Gageler put to my friends this morning about whether one focuses on the incidents of the office that give rise to the capacity to influence. We submit that that is the kind of inquiry that it is caught up at that second stage. But, we would add the words “to influence the officeholder in the performance of their parliamentary functions” because, in our submission, section 44(iv) is not concerned with the capacity of the Executive to influence an officeholder in the exercise of their executive functions.

So if, for example, there is a capacity to give a direction to the officerholder – say, for the sake of argument, an AAT member can be given a ministerial direction to prioritise applications in a particular way and that direction is enforceable by a mandamus, or injunction, or in some other public law way, that kind of capacity to influence the performance of functions, in our submission, is not the concern of the prohibition.

The prohibition is concerned with the holding of an office of profit where the control over that office provides an opportunity for executive influence of the officer in their parliamentary functions and that is what one sees in the history of the provision, particularly in the anti-corruption phases where the concern was with the capacity to effectively buy off or influence Members of Parliament in the way that they performed their parliamentary role by conferring upon them executive office. So in that respect, even where one is forced into an evaluative inquiry, the integers of that inquiry are, in our submission, narrower than has been advanced on behalf of the other parties.

Before developing those submissions a little, can I just make a general point about the task which is that in the context of the interpretation of section 44(iv) one is, of course, concerned with the interpretation of a rigid constitutional disqualification provision. In that respect, the task is different from those which arose both in the United Kingdom and in respect of the colonial predecessors where one finds provisions in very similar form but that were subject to parliamentary variation at the will of the relevant legislature.

So that it was not uncommon, as a matter of history, for the United Kingdom Parliament to excuse particular breaches of disqualification provisions in circumstances where the Parliament formed a judgment that disqualification was not appropriate, and one sees some example of that in the colonial history as well, one of which I will take your Honours to.

Obviously, that is not an option in the context of the application of section 44 and it does for that reason emphasise the weight which should be given to the considerations identified in Day as to the need to identify a tolerably clear and workable standard to guide behaviour because, standard being fixed and rigid, nothing can be done to soften the edges of the operation of the disqualification.

Your Honours, can I start with our submission that the power of appointment is itself enough without law when present. We have at various points in writing sought to capture that idea by references to the office being in the gift of the Crown and in order to avoid any doubt and answer the suggestion made by Ms McCulloch we are not suggesting that in the gift of the Crown is a test. Obviously, your Honours are concerned with construing the constitutional language.

What we sought to do through that phrase, and it is a phrase which does occasionally find expression in the historical materials, is to identify the kind of control with which the provision is concerned, which is control of the office itself – not the officeholder but the office itself – and the profit that attaches thereto. It is the capacity to influence the holding of the office and the receipt of the benefit attached thereto that is the linchpin for the operation of the section, as opposed to the functions that might be performed thereafter.

If I could ask your Honours to go to the most recent occasion on which the Court looked as this prohibition, which was Re Nash (No 2) last year, which your Honours will find in volume 2 behind tab 21 of the joint book. Your Honours will recall that Ms Hughes had been identified on the special count following the disqualification of Ms Nash as the person who would fill the vacant place in the Senate following Ms Nash’s disqualification but Ms Hughes had been appointed to a position as a part-time member of the Administrative Appeals Tribunal.

It was accepted by all parties in that case that that appointment as a part-time member of the AAT was an appointment to an office of profit under the Crown. Your Honours will see this at paragraphs [8] and [9] of the report. Particularly in paragraph [9] it said:

Members, including part-time members, of the Administrative Appeals Tribunal are entitled to remuneration in accordance with determinations . . . of the Remuneration Tribunal -

So that is focusing on the profit element of the office. Then the Court said:

There could be, and was, no dispute that the position Ms Hughes held during the period between 1 July and 27 October 2017 answered the description of an “office of profit under the Crown” -

Now, one might ask why was that so in circumstances where Ms Hughes was appointed to a part-time position on a fixed term of seven years in circumstances where under the AAT Act the capacities of the Minister to dismiss her from office were extremely restricted, principally the same as the powers that pertain to the dismissal of a judge, so that the relevant section is – so the term of appointment is up to seven years in section 8 which was the appointment that Ms Hughes had, the remuneration is to be set by the Remuneration Tribunal so the Minister did not control that.

And termination is governed by section 13 of the AAT Act which allows the Governor-General to terminate on address of each House of Parliament for proof of misbehaviour or if the member is unable to perform duties due to physical or mental incapacity. There are then some additional grounds upon which the Governor-General may terminate but they are restricted - bankruptcy, matters of that kind.

A notable feature of the conclusion in Hughes which the Court accepted in paragraph [9] was an obvious one, there could be and was no dispute, was that an appointment to the AAT was an office of profit under the Crown with no need to engage in an evaluative inquiry into all of the features of the relationship and that had such an inquiry been undertaken would not have disclosed any extensive capacity of executive control over the occupant of the office. There simply is no control of that kind in relation to an AAT member. We submit that the Court correctly accepted and identified the office as an office of profit under the Crown because the Crown appointed Ms Hughes to her office.

Similarly, your Honours, and I apologise for the omission of this from the book but if I can hand up to the Court – I think, your Honour, the practice direction is that I hand up things one at a time. I am going to hand up two things but the first thing that I need to hand up is a judgment of the Western Australian Supreme Court in a case called Clydesdale v Hughes. So, this is a 1934 case reported in volume [1934] WALawRp 11; 36 WALR 73. Your Honours will see it was a common informer action brought in relation to a member of the Western Australian legislative council who had accepted appointment as a member of the Lotteries Commission of Western Australia, an appointment that was made by the Minister under the Lotteries (Control) Act which had remuneration attached to it.

The report contains, first, the first instance judgment which was delivered by Chief Justice Northmore and then also the appeal judgment. If your Honours start with Chief Justice Northmore on page 75 near the top of the page, his Honour notes that:

by section 3 of the Lotteries (Control) Act, 1932, that the members of the Lotteries Commission shall be appointed by the Minister, that is the Minister of the Crown for the time being administering the Act. The office is therefore in the gift of a Minister of the Crown, and in making the appointment he is acting on behalf of the Crown. It may therefore very properly be described as an office from the Crown.

This was an office from the Crown statutory provision. Then a little further down in the same paragraph it is said that:

but what is sought to be prohibited by section 38 of the Constitution Acts Amendment Act, 1899, is the acceptance of an office in the gift of the Crown which carries with it profit to the holder, and in that view the source from which the profit is to be derived is immaterial.

So, his Honour was rejecting there a submission that it mattered that the profit for the office came from a percentage of the lotteries rather than from the Crown directly. But I go to it to illustrate that his Honour thought the relevant notion was a question about whether the office was in the gift of the Crown and the appointment power by the Minister without more was enough to support the conclusion that this was an office from the Crown.

On appeal, separate judgments were given by Justice Draper, which does not contain any relevant discussion, and Justice Dwyer. Your Honours will see Justice Dwyer’s reasoning commencing on page 84 and on page 85, at about point 7 down the page, his Honour rejects an argument that the relevant office “was not an office of profit”. And there is a sentence that begins probably about a dozen lines up:

I think all it requires is that the office should be one of profit and that the office should be from the Crown. In this case, as the appointment to the Commission is in the hands of a Minister of the Crown as such, I think that fully satisfies the requirements of the section.

So he applied, relevantly, the same approach as Chief Justice Northmore. Then a couple of lines further down, his Honour notes that:

Some emphasis was placed on an historical difference between the former phrase, “an office under the Crown” and “an office from the Crown,” but if there is any substantial difference I am disposed to think that “an office from the Crown” has a rather wider meaning than “an office under the Crown.”

So his Honour put them the opposite way around. Now, I accept, Justice Edelman, that that is probably contrary to the prevailing historic view but we rely on it as accurately reflective of the fact that, at least by the time of Federation, there was no clear distinction between those words. There was a distinction between them drawn in the 1707 Act, rapidly eroded by legislative amendments and, in our submission, for reasons I will develop in a moment, one does not need to draw the distinction.

EDELMAN J: The Western Australian Constitution seems to use “from the Crown” and “under the Crown” almost interchangeably.

MR DONAGHUE: Yes, your Honour, and the Western Australian Constitution at the time of Federation, like the New South Wales Constitution, mirrored the 1707 Act, so it contained an equivalent of both 24 and 25, and use both.

EDELMAN J: But elsewhere in the Act it uses “under” and “from”.

MR DONAGHUE: Yes. Your Honour, our submission is that they are appropriately used interchangeably now. Clydesdale, I should note, went to this Court on appeal where the judgment I have just taken your Honours to was overturned but not on the point that I have just taken your Honours to. So I will not trouble your Honours with it now but, when this common informer suit was commenced and the problem came to light, the Parliament of Western Australia passed an Act designed to excuse people who had accepted appointment to the Lotteries Commission from disqualification.

Notwithstanding that legislative history, the Full Court of the Supreme Court held that there was not a sufficiently clear intention that that legislation retrospectively fixed the problem of people who had been disqualified. This Court disagreed on that point and, having disagreed on that point, said it did not need to express a view about the office of profit questions that I have just taken your Honours to. So there is no relevant discussion in this Court’s judgment.

In our submission, the reason that the powerful point is sufficient in itself is because the concern is with the holding of the office of profit rather than with any question about the performance of the executive functions of the office. So that one is concerned with the question of whether there is a capacity for the Executive to influence the officeholder in the performance of their parliamentary role. And, as your Honours will recall in Sykes v Cleary, in the passage your Honour Justice Gordon drew attention to this morning, at the top of page 97, there is a reference to that purpose being the principal purpose of the provision.

That focus, in our submission, derives some further support from the fact that the provision of course is limited to offices of profit. So if the concern was with the possibility simply that the officeholder associates themselves in some way with the Executive by reason of their performance of executive functions, that concern or the loyalties to the Crown that might arise in that way, would exist equally whether or not the office was remunerated. But the section fixes on the remuneration and the reason it does so is because it is the gift of the office and the associated benefits that attach to it that creates the capacity with which the provision is concerned.

KIEFEL CJ: Does not the capacity to influence in this context then really derive from the ability of the Crown to remove the benefits so that it is not just the appointment, it is appointment and removal? It is appointment to the position and then the ability to remove and take away the benefits which has that effect.

MR DONAGHUE: That, your Honour, is why we do not say that one can just answer the question in both directions by focusing on the power of appointment.

KIEFEL CJ: Yes.

MR DONAGHUE: But, at the moment I am simply trying to develop the proposition that the first stage of the inquiry focuses on power of appointment and, if you have it – if you have the power to appoint a person to remunerate an office, then you have the power to influence in a way that the section is concerned to prohibit and so, without more, there is an office of profit under the Crown. If I am right about that, one then gets to the question, what about the power to remove – absent a power to appoint?

KIEFEL CJ: Does the power of influence happen before or after appointment?

MR DONAGHUE: If the person already holds the – temporarily, your Honour, the section draws no distinction so that one can be disqualified by section 44(iv) whether appointed to the office of profit before one is in Parliament or while one is in Parliament. Either way, the section would disqualify. On our submission, if the appointment is by the Crown, then the section operates and that is the end of the inquiry.

If, on the other hand, one identifies a case – and the only examples we can think of are cases where one is elected to the office but that there is then some executive power to dismiss – there is the potential capacity for someone to be deprived of the office to which the financial benefit attaches which might give rise to influence and that is where we accept that there is some scope for an evaluative inquiry at the second stage.

But, our submission is that, in terms of the general operation of section 44(iv), if your Honours were to accept that the initial inquiry is an inquiry about appointment, then that will resolve the overwhelming majority of cases and confine the evaluative inquiry to a quite limited subset, mainly, we think, involving positions to which people are elected where there is some executive capacity to dismiss or alter remuneration.

GAGELER J: I think the point that you are making in paragraph 4.2 is that the influence lies in the natural tendency to take a benign view of one’s benefactor.

MR DONAGHUE: Yes.

GAGELER J: The principle of reciprocity.

MR DONAGHUE: Indeed. That is certainly a real part of it. Yes, indeed – partly in the benign view of the benefactor and partly, perhaps, in the fear that a failure to take the benign view of the benefactor might – if there are sufficiently extensive powers – cause detriment.

EDELMAN J: Except, on your submission, it extends to circumstances where, after appointment, there could be no possible influence.

MR DONAGHUE: Indeed, your Honour, but that, in our submission, is because ultimately while the concern about executive influence is the underlying purpose of the provision, it is not the test. The test is whether or not the office is held under the Crown or not and, in our submission, it is sufficient to meet that test, that the person is appointed which is why we say the AAT is an office of profit and is why the framers of the Constitution took the view that a federal judge would hold a disqualifying appointment, even though there would not have been that ongoing capacity to influence.

Now, looking at the judge example with modern eyes, one would say, well, one would get that answer through an implication from Chapter III in relation to a federal judge and in relation to a State judge one would think through Kable but obviously that was not in contemplation at the time of Federation.

There was a real concern in the Convention Debates, particularly at one point there was a proposal advanced that the disqualification in 44(iv) should extend not just while the person was in Parliament, but to a period to either six or 12 months thereafter and a lot of the debate about that focused on the fact that that would prevent good people from being appointed to the federal judiciary and it was thought undesirable to prevent parliamentarians from being able to accept those positions. So, that was a live concern for the framers which is not consistent, in our submission, with the idea that there needs to be an ongoing power of control in order to bring someone within the constitutional term.

Now, your Honours, I was proposing, and I will do it briefly, to take your Honours quickly through the relevant parts of the Convention Debates, which you will find in volume 4 of the joint book of authorities. This is really to be done for two purposes which I will do simultaneously; one is to identify some of the statements that were made during the debates as to the purpose of the provision, but the other is also to note somewhat by way of passing that there was a discussion in the debates as to the position of the Speaker of the House of Representatives and the President of the Senate, as to the character of their office and whether they needed to be exempted in some way from the operation of 44(iv) and the answer that was given first by Sir Samuel Griffith in 1891 and later by Sir Edmund Barton was that there was no need for an exemption because those offices were not offices under the Crown. Why; because they were not appointed by the Executive Government. That was the reason that was given for the fact that those offices fell outside the prohibition.

So, your Honours, doing this quickly, if you could turn to tab 31, which at least in my copy of the book then has a number of unnumbered tabs under it and if your Honours go to the second of those tabs, you will, I hope, have the debates from Sydney in 1891, in April 1891, and you should see, turning over the page, page 660, looking at the top left or page 1526 at the bottom, and down the right-hand column there is recorded some observations of Sir Samuel Griffith, responding to what was then clause 49 of the draft which referred to a Senate or a Member accepting any office of profit under the Crown and your Honours see that in the left-hand column, and Sir Samuel said there was a discussion about pensioners:

It applies only to pensions during pleasure. The object is to prevent persons who are dependent for their livelihood upon the government, and who are amenable to its influence, from being members of the legislature.

So he identified the same principle purpose as had been identified by this Court in Sykes. There was then a question asked by Sir John Bray at the bottom of that page about the speaker and the president and Sir Samuel Griffith is recorded as saying:

They are not under the Crown!

Sir John Bray disagreed with that observation:

They hold offices of profit under the Crown, though they are not appointed by the Crown.

So Sir John Bray drew a distinction. That distinction which Sir John drew was ultimately rejected years later by Sir Edmund Barton and again explaining why the speaker and the president were to be dealt with separately. Your Honours might also note on that page just under Sir John Bray Mr Kingston is recorded as saying in the middle of that passage:

To permit a member to sit in the federal Parliament whilst he was liable to be controlled by the governor-general by the withdrawal of his pension, would be a great mistake -

So again the focus was on capacity to influence by talking there about the pension’s limb admittedly but, in our submission, the purpose is the same, the capacity of the Executive to influence in the parliamentary role of the relevant parliamentarian.

Turning to the next tab in the bundle you will see an extract from the Adelaide debates in 1897. There on page 740 there is Sir George Turner recorded as – and this is in the course of the debate about whether the provisions should be extended for six months - and Sir George Turner identified:

The object is to prevent the Government of the day from conferring a valuable position on an existing member who could resign his seat and next day be appointed to any office of profit. The object of this section can be frustrated under such circumstances -

So again the focus seems to be on the capacity to appoint someone to a valuable position. Sir Edward Braddon on the next page refers at about point 7 to:

it is desirable, if it were practicable . . . to make a provision which should prevent the purchase of a vote in the Federal Parliament by any promise of an appointment.

Again, we submit, focusing on the power to appoint. And over the page, Mr Dobson is reported as saying at about point 2 down in the left-hand column:

If any Federal Ministers want to reward one of their supporters by giving him a lucrative post, the term should be twelve months -

So he was suggesting an even longer term. But again, the whole tenor of this debate is focusing on the capacity to gift executive offices in order to win parliamentary favours or support.

Turning to the next tab, that is at the Sydney Convention in 1897 and on page 1030 of the debates in the left-hand column about two-thirds of the way down the report at the end of the observations of Mr Gordon there is a reference to this being a provision directly concerned with “the purity of parliament”. Then almost next to that, in the right-hand column a little higher up the page Sir John Forrest is referring to a government having:

no great desire to give their friends in parliament public positions, as by doing so they would weaken their support.

Then Mr Gordon said:

But they could bribe their enemies, which would be worse still!

So again the debate is about capacity to influence people in the performance of their parliamentary roles.

Finally, in the debates, the passage from - behind the last tab, the passage from Mr Barton to which I referred, appears on page 2448 in the right-hand column about point 2 or point 3, Mr Barton says:

The offices of Speaker and Chairman of Committees are not offices of profit under the Crown. They are parliamentary offices, and Parliament has always retained a power over its own Estimates –

and then skipping down about eight lines:

these are political offices, but not offices of profit under the Crown. I think that that is the principle that Parliament has always asserted in England and elsewhere.

Now, I do not want to detain your Honours for too long on the 1941 report to which you have already been taken in some detail. It is in the same volume of the extrinsic material behind tab 30 but very briefly your Honours have seen the text - and this is on page 1477 and 1478 - the text of sections 24 and 25 of the 1707 Act of Succession or Succession to the Crown Act rather.

Section 24 dealing with new offices, using the phrase “under the Crown” and section 25 dealing with – not expressly dealing with but interpreted to deal with old offices – dealing with offices “from the Crown”. There is then a discussion on page 1478 about the fact that the sections are:

in form irreconcilable, and are full of obscurities. The generally accepted method of reading them together is to take section 25 as meant to refer only to old offices. A further distinction is that section 24 applies to “offices under the Crown” and section 25 to “offices from the Crown.” Offices from the Crown are generally understood to be offices the appointment to which is made directly by the Crown and not through the medium of a minister.

So, the suggested distinction is the Crown personally versus appointments by ministers on behalf of the Crown. Obviously, not a distinction that is significant in Australia and supports, in our submission, the fact that there is no need to draw – and little utility in drawing a distinction between the two. That is further supported when one looks a little further down that page under the heading “The Distinction between Political and Non-Political Offices”. The Committee report that:

A great deal of later legislation was necessary in order to convert the distinction . . . between “old” offices . . . and “new” offices . . . into a distinction between political and non-political offices.

So, what happened over the legislation then identified was that the old and new office distinction using language “from the Crown” or “under the Crown” was broken down by a series of new Acts introducing new exception, the practical outcome of which was to allow ministers to sit in the Parliament and they are the political offices and to otherwise prohibit non-political offices from holding parliamentary positions.

That breaking down of the distinction and, indeed, the fact that sections 24 and 25 use different language “under the Crown” and “from the Crown” in relation to old and new offices really emphasises the fact that there was no fundamental difference in kind or mischief to be addressed by those provisions. They were just addressed to different temporal exercises and reflected the political realities of the deal done between the Commons and the Lords at the time that these statutory prohibitions were being worked out.

If I could then ask your Honours to go back to the passage in the third memorandum by the Attorney-General which is page 136, in the book it is page 1518, and your Honours have already focused some attention on this. I go to this passage for this reason; broadly speaking I think it is fair to say that the approach taken by the Attorney-General in this memorandum is reflective of the approach taken by the other parties before this Court in that the suggestion is that there should be an evaluative inquiry looking not just at appointment but who controls, who dismisses, the nature of the duties et cetera and it is suggested that there is a presumption where the power of appointment comes from the Crown but not more than that.

In our submission, for the reasons I have already developed, it is both possible and appropriate to draw a brighter line than that and, indeed, and in particular, we would not embrace the statement upon which some attention was focused just before lunch - if although the Crown appoints the duties are not duties connected with the public service the office would not be under the Crown. In our submission, that sentence should not be accepted as correct.

There is then the reference to the Regius Professors and the professors of Eton. Your Honour Justice Edelman mentioned Sir Gilbert Campion’s views and that they had not been included in the material as Mr Solomon mentioned. We, over lunch, have copied that evidence – no, I withdraw that. We have copied what we have apprehended to be the relevant appendix to which your Honour was referring which is an appendix to a memorandum prepared by Sir Gilbert Campion. If I could hand this up to the Court?

We were subsequently informed that in addition to the memorandum from Mr Campion, there is also some oral evidence – a transcript of some oral evidence that Sir Gilbert gave to the committee and because I was not aware of the existence of that evidence, we did not copy it and so that is why Mr Solomon told you that there is still some part missing. But, interestingly, if one goes to the memorandum that Sir Gilbert prepared and turns to page 152, your Honours will see that – looking at the first full paragraph on the page, five lines down - - -

BELL J: I am sorry, what page is this?

MR DONAGHUE: Sorry, your Honour, 152.

BELL J: Page 152, thank you.

MR DONAGHUE: And, there Sir Gilbert says:

Owing to the practical extinction of old offices from the Crown . . . the distinction between “from” and “under” is not of much importance at present, since the provisions of the statute of 1707 are generally accepted as disqualifying the holders of all new offices, whether “from” or “under” the Crown.

So, that supports the idea that distinction is not of much importance. Then, Sir Gilbert says:

Doubts have, however, been expressed in recent times about certain offices which are in the gift of the Crown but are not under the Crown in the sense of being a part of the public services.

He does not identify where those doubts have been expressed but it may be that it is a reference to the Attorney-General’s observations at 136. It is then said:

Examples of such offices are the Provostship of Eton College and the Regius professorships in the Universities. In view of precedents of the eighteenth century, some of which are referred to above, it is difficult to say that such offices are not within the “spirit and meaning” of the statute of 1707.

So, it appears that Sir Gilbert’s view accords with the view that we are urging on the Court that - - -

EDELMAN J: Although he does recant that in his oral evidence.

MR DONAGHUE: Yes, I know. I was conscious that I do not have a complete picture of it but in some ways it respects, your Honour - even the fact that he says it and then recants it demonstrates that the lines are not all that bright in this area. As a matter of principle, it is, in our submission, difficult to see why, if the concern is about buying off parliamentarians in the performance of their parliamentary duties by appointing them to offices of profit, why it matters whether the duties of the office are associated with the public service or not.

One gets the office and the prestige of the office and the benefits – the financial benefits – of the office whether one is the Provost of Eton not performing a public duty or whether one is appointed to a position that does have some public service association to it. The mischief is the same. So, in our submission, it is in error to limit the concept as requiring there to be public service duties.

GAGELER J: Mr Solicitor, the reference to the precedents of the 18th century is to parliamentary precedents, is it?

MR DONAGHUE: Yes. Principally, yes, your Honour.

GAGELER J: Do we have our own parliamentary precedents?

MR DONAGHUE: In relation to?

GAGELER J: Section 44. Relevantly, section 44(iv).

MR DONAGHUE: Your Honour, I am not sure I am in a position to give your Honour a comprehensive answer to that question. Your Honour might have noted that in writing we did point out that there was some history of local councillors sitting in the Commonwealth Parliament.

GAGELER J: Yes.

MR DONAGHUE: The response our friends – on behalf of Ms McCulloch – gave to that submission was to say that, for at least much of that period, the position of a local councillor did not have remuneration attached to it. So, it was an office but not an office of profit. That seems to have some force in it.

GAGELER J: What I was thinking of, it has not been unheard of in the history of our Parliament for the Executive conferral on a sitting Senator or Member of the House of Representatives of some office which carries some rather attractive remuneration - - -

MR DONAGHUE: Yes.

GAGELER J: - - - not always easily characterised, I think, as an office within the public service.

MR DONAGHUE: Indeed.

GAGELER J: I just wondered if there was any consideration of that within the House of Representatives or the Senate which we should be aware of, since we are going to quite old English material and what would be - - -

MR DONAGHUE: I accept the force of the inquiry, although I can imagine it being said against us that what the Parliament has done in that respect is not capable ultimately of influencing the proper interpretation of section 44.

GAGELER J: Nor what the English Parliament did in the period up to 1941, I think.

MR DONAGHUE: In the period between 1900 and 1941, certainly that is so, your Honour, but the history obviously goes back some distance before then and insofar as one sees these words “under the Crown” right back in the 1701 Act of Succession and then the distinction between “from” and “under” thereafter, in our submission one does get some assistance in identifying the target of those provisions from that history. I am not, I am afraid, in a position to assist your Honour as to whether there is a parliamentary practice in Australia that would shed light on the understanding of “term”.

Certainly there was in England, and still is, a practice of appointing parliamentarians to some office for the purpose of disqualifying them. There is some discussion your Honours might have seen in a report of the Chiltern Hundreds which is an office that exists for the very purpose of allowing parliamentarians to retire by appointing them to the office and thereby attracting the operation of disqualification provisions. I would not suggest there is any equivalent to that in Australia but the general principle and the bright line for which we suggest, in our submission, holds and it is entirely consistent with the history.

EDELMAN J: Do you say that the same general principle and bright line was effectively adopted in the various formulations in the colonial constitutions before Federation which did not always use the same wording but used similar wordings when dealing with both pensions and offices “under the Crown” or “from the Crown”.

MR DONAGHUE: Or “from the Crown”. Indeed, yes, is my answer to that, your Honour.

EDELMAN J: Have there been any consideration of any of the provisions under any of those colonial constitutions?

MR DONAGHUE: Well, as I understand the position, your Honour, the colonial constitutions that contained relevantly the same language were limited to the Western Australian Constitution and the New South Wales Constitution. I do not believe the other constitutions used relevantly the same formulation and, in our submission, the Convention Debates suggest that section 44(iv) was intended to be a continuation of a colonial practice that we take to be the practice referred to particularly in the New South Wales provisions.

Certainly there does not seem to be any question that insofar as the provision used the words “from the Crown” that if the appointment was “by the Crown to the office” that attracted the disqualification and that is what one sees in Clydesdale and, in our submission, one does not need to go further in identifying the operation of the provision.

Now, of course, on that criterion obviously the mayor and a local councillor are not disqualified for that reason so they are not within the bright line. The question then becomes are we within that secondary category where there is a need for a confined or residual evaluative inquiry and our submission is that the starting point in relation to that second category is that the overriding purpose that is being served by 44(iv) is not engaged to any great extent because on the assumption of an absence of power to appoint to the office, the very source of concern, which is holding out the law of executive remunerated office so as to influence parliamentary behaviour is absent and the concern can arise only if there happen to be parliamentarians who are holding an office that the Executive can alter the remuneration or dismiss.

So the area of concern is very much reduced once one is in the category of an office where there is no executive power of appointment and it is for that reason that we have said in writing that we apprehend this would be a relatively rare case.

When one then engages in an evaluation which, in our submission, is confined to the question are they looking at the incidence of the office, focusing on the statutory scheme that bear on the question of whether or not there is executive capacity to control the holding of the office or access to the benefits, that is all one is concerned with, one finds in this statutory scheme, for the reasons that Mr Solomon has already developed and I will not rehearse, insufficiently extensive power of removal to lead to the conclusion that the office is an office of profit under the Crown.

I think your Honour Justice Keane put it to Mr Solomon that really the essence of the point was that an attempt to use any of these powers of removal to influence the office would be difficult to implement and subject to judicial review - difficult to implement because there are all of these external bodies that have to be engaged to do reports or prepare recommendations of various kinds.

There are in the case of some of the powers express statutory constraints on when they can be exercised and they are statutory constraints of a kind that could engage supervision in a court. So to take perhaps the high point of our friend’s case, which was section 226 of the Act, one needs to go through a quite extensive process to have the board of inquiry and appoint its terms of reference, appoint people to it, have it conduct its inquiry, provide natural justice, et cetera.

One then ends up with a report at section 224 which the Minister can ask the board to reconsider in various identified circumstances. But even having gone through that whole process which is a process that just because it exists impedes the extent to which a nefarious Minister could use this power to exert influence because it necessarily will attract – it will both cause delay and attract public scrutiny to the whole process, but at the end of the process the Minister has a power to recommend dismissal only if the Minister is of the opinion that the failure of the councillor or council to perform any function has seriously affected the operation of the council.

So, one has to look for a failure in performance of function and it has to be a failure of performance that had a serious effect or the irregularity has to have a serious effect on the operation of the council. So that kind of power is, in our submission, sufficiently constrained so that engaging in an evaluation of the statutory incident and bearing in mind that this is an office that is filled by elected representatives one should not reach the conclusion that the office is under the Crown.

That is particularly so when one has regard to other statutory incidences of the scheme including, in particular, that the term of office is set by the legislation so your Honours will have noted in section 44 the term of office of the mayor is for a period of four years following the election, same for a councillor which is section 46 for the councillor.

So, the term – not only is the office not filled at the discretion of the Executive but instead by election, it is for a fixed term not controllable by the Executive and the remuneration powers are fixed by regulation in circumstances where any effort or attempt by the Executive to alter the remuneration cannot be effective in the event that either House of Parliament chooses to veto that change.

So, to pick up a remark made by a number of your Honours this morning, the very fact that another arm of government can, if it wishes, involve itself in the determination of the remuneration in our submission points quite strongly against characterising this as a power of executive control over here the benefit attached to the office.

GAGELER J: What about Part 12B, will you deal with that?

MR DONAGHUE: Performance improvement directions, yes, your Honour. So, similarly, to 226 - section 214L, your Honour, the first section. It is on page 367 of the book. One only gets through the gate for a direction of this kind if the director makes a recommendation to the Minister, so the Minister is not triggering this process him or herself, it is a third party, the director, who is, I accept, appointed by the Minister but it is not the Minister him or herself.

GAGELER J: And acts subject to the direction of the Minister, or do you say this is an independent discretion?

MR DONAGHUE: Your Honour, on the face of it, in my submission, it should be read as being an independent discretion of the director, otherwise the scheme is very strange. If the Minister can give a direction to the director to make a recommendation to the Minister in order to engage the provision there is an obvious circularity in that scheme. Particularly that is so, your Honour, when you look at - - -

GORDON J: Subsection (2) deals with the director’s opinion.

MR DONAGHUE: That is what I was about to go to, your Honour. So when one keeps going through the scheme you need the director’s opinion and it needs not an opinion at large but an opinion based on failure to comply with statutory requirements.

GAGELER J: You do not have to go through subsection (2), do you?

MR DONAGHUE: Sorry, your Honour. Yes, it is without limitation.

GAGELER J: Subsection (2) is permissive, not limited.

MR DONAGHUE: It is without limitation. That is a fact; I accept that, your Honour. I accept that is so. The Minister then has to go through a process of reviewing the submissions that come in under 214N. But the endpoint then, under 214O, following this process through, is suspension, not permanent removal from the office, or it funnelled you to the board of inquiry function.

So one ends up, certainly to get to a power of dismissal, as we read 214O, one, under (b) and (c) ends up in the board of inquiry provisions. The existence of the power of suspension, in our submission, is not itself enough to result in the conclusion that an office not appointed by the Executive but filled by election and otherwise not subject to dismissal or affection of remuneration is an office of profit under the Crown.

EDELMAN J: Is this alternative submission any different really from saying that the office under the Crown has to effectively be at the pleasure of the Executive?

MR DONAGHUE: That is the notion that we are advancing, your Honour, yes, in substance.

EDELMAN J: It is no lower than that. On its proper characterisation it is effectively “held at the Executive’s pleasure”, then it would not amount to an office of profit under the Crown.

MR DONAGHUE: Well, I think I would need to qualify that in one respect, your Honour. That is so in relation to the occupation of the office but a control over remuneration, so a capacity to completely deprive the officeholder of their remuneration, for example, would also be sufficient on this part of the argument.

Your Honours, I just need to correct one submission I made about 214O. I said other than suspension one took - one went to a board of inquiry. That is not quite right. It is right in relation to 214O(1)(c), but 214O(1)(b) takes you instead to the Local Government Board, which was the other set of provisions that your Honours were taken through.

Your Honours are, of course, aware that there that there is no decisive authority in relation to the question that is now before the Court. But there is one case that may be of some assistance to your Honours that I take your Honours to which is the Local Government Association of Queensland v Queensland – a case that may ring some bells for your Honour Justice Keane.

The case is behind tab 16 and while not squarely on point it is close in terms of what was in issue because what had occurred was that the Queensland Government had enacted a provision in the Local Government Act (Qld) – section 224A – which had the effect – or provided that:

A councillor ceases to be a councillor if –

. . .

(b) under the Commonwealth Electoral Act 1918 . . . the councillor is declared to be a candidate for an election.

So the effect was a State law vacated the position of the councillor if they ran for federal election. The argument was that that provision was invalid – either because Queensland had no power to enact it because it travelled on to an area of exclusive federal legislative power or because the provision was inconsistent with Commonwealth provision in the Commonwealth Electoral Act.

Issue was joined on that between the Local Government Association v State of Queensland represented by the then Solicitor-General for Queensland, your Honour Justice Keane. The Commonwealth intervened through the then Commonwealth Solicitor-General to support the plaintiff. So this is a case where issue was joined between the Commonwealth and a State, in part on the question of whether or not a State provision preventing a local government candidate from running was valid.

The case was decided on 109 grounds. It was held that section 224 was inconsistent with the Commonwealth Electoral Act. But your Honours might note in the report of the argument in the case at page 362 that one of the submissions that was advanced – well, actually, if your Honours go to the bottom of 361, you will note that around line 47 there was an argument addressed that:

Section 224A(b) vacates a person’s office of councillor, even though that office is not “under the Crown” for the purposes of s. 44(iv) of the Constitution.

So the Commonwealth’s position in this case was that the local council position was not an office of profit under the Crown. Then over at the top on the next page, the Commonwealth submitted that the operation of 224A(b) was not:

facilitate the operation of s. 44(iv) –

and then going down that page to line 41 it was put to the Court:

There could be no constitutional objection to s. 224A(b) if it merely dealt with a State office so as to facilitate the operation of s. 44(iv), but it does not.

So, in effect, it was being said if local councillors are already disqualified by section 44(iv) then a Queensland provision that stops local councillors from running for election will not be invalid because it will just be facilitating the operation of a constitutional provision that already prevents that from occurring.

Queensland – while joining issue on the case – did not join issue on the proposition that a local councillor is not an officer of profit under the Crown and it is recorded in two places in the judgment that the parties were agreed that a local councillor was not the holder of an office of profit for that purpose. So you see in the judgment of President McMurdo, at the bottom of page 364 of the report, where it said in the last three lines of the page:

Although it is not contented that s. 44(iv) Constitution applies to local government councillors, some analogy can be drawn –

and her Honour emphasises then that it was a matter for the Commonwealth Parliament to decide where it wished to add to the disqualifications so as to prevent a local councillor from running. Then in Justice of Appeal Davies’ judgment on page 372 it is noted in footnote 49, at the very bottom of the page:

It was not argued by the respondent that the office of local government councillor was an office of profit under the Crown within the meaning of s. 44(iv) and the case reserved in par. 5 appears to accept that it is not. That seems to be correct.

I am not trying to put too much weight on any of that but insofar as the current issue before the Court has been considered an authority this seems to be as close as it has got and in our submission in a case where it was accepted by the Commonwealth that if the operation of the impugned position was the same as 44(iv) then the Commonwealth would have failed in its argument, nevertheless both the Commonwealth and Queensland litigated the case on the correct footing, in our respectful submission, that a local council position is not an office of profit under the Crown.

There was reliance, your Honours might have noted, in that same footnote in Justice Davies’s judgment to Sydney City Council v Reid when President Kirby, as his Honour then was, gave the judgment of the Court of Appeal in a related context which supports the same conclusion but I will not take your Honours to it.

Your Honours, I think I have probably in writing said enough about incompatibility, which is advanced particularly by Ms McCulloch in writing, as the principal focus for the operation of section 44(iv). But we do wish to make this point in relation to the assertion that the operation of 44(iv) is directed at stopping incompatible functions caused by a need to serve different levels of government within the Federation at the same time.

In our submission, there are grave difficulties interpreting 44(iv) as having that purpose for two reasons. One, if your Honours note the closing words of section 44, the long paragraph at the end of section 44 which is just directed to things that are not captured by 44(iv), they include:

does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to –

various other things. So the Constitution expressly provides not only that Commonwealth Ministers can hold an office for profit under the Crown, as plainly they do and need to be able to do for responsible government to function, but the State Ministers can do the same.

So the Constitution in its terms is contemplating the possibility that someone might simultaneously serve as a State Minister and as a federal parliamentarian. If our friends are right, the concern upon which they rely would be present in a gravely magnified way in relation to State politicians.

Similarly, there were extensive debates about whether or not there should be in the Constitution a prohibition on a State parliamentarian serving in the Commonwealth Parliament. The Constitution drafted in 1891 included a prohibition on that occurring and that prohibition was removed later in the debates. I will not give it to your Honours but the history of the amendments are summarised in Quick and Garran.

It may well be right as our friends say that a State parliamentarian is not an office of profit under the Crown - there seems to be real force in that – but nevertheless the drafters of the Constitution made a clear decision to leave it to Parliaments to decide the extent to which, if at all, a State parliamentarian should be permitted to serve in the Federal Parliament.

If there was a concern that it was improper for there to be representation in the Federal Parliament by people who had duties at that State level or at a different level of government that is hard to explain. It is difficult to explain why the prohibition that would have prevented that very kind of conflict of interest on which our friends rely would have been removed if that were the actuating purpose of section 44(iv).

Finally, your Honours, returning in some respects to where I started about the need for a clear and bright line in the operation of these provisions, your Honours will have noted from the legislative history that there were significant amendments to the Local Government Act made on 22 November last year, such that at the time that Mr Martin first ran for mayor and then ran for mayor at the time when he obtained the office which he held at the time of the federal election, the legislative regime that governed his occupation of the office of mayor and the office of councillor was different from the legislative regime that now applies.

Now, we accept in light of Nash that the electoral period is ongoing and that if he were disqualified under the legislation in its current form that that would be sufficient to disqualify him from now being declared duly elected. But the capacity for legislative amendments, including relevantly here the provisions in Part 12B to which your Honour Justice Gageler has drawn attention, which were added in November, the capacity for shift in legislation to change the legal incidence of the office that is occupied in a way that might, on a wide evaluative test, bear on the question of whether the office is an office of profit, emphasises the scope for ongoing uncertainty as to whether or not particular offices are or are not office of profit under the Crown.

In other words, even if one were to litigate the point and obtain an authoritative ruling from this Court as to the character of the office, the wider the evaluative factors that go into the mix, the wider the statutory indicia, the more scope there is for any changes in the governing legislation to undercut or undermine the answer to the question whether the office is or is not an office of profit under the Crown and the point is illustrated by the amendments that were made in November last year.

For those reasons, we submit that adopting the approach that your Honours took in Day, the clearest in construction consistent with the language producing certainty for parliamentarians and electors is desirable and that results in a test that focuses narrowly on appointment first and then, in circumstances where there is no power of appointment, as here; involves a confined statutory inquiry focusing only on incidence of the relationship that in substance make the holding of the office or access to its profits subject to the control of the Crown. If the Court pleases.

KIEFEL CJ: Thank you, Mr Solicitor. Solicitor-General for Victoria.

MS WALKER: If the Court pleases. I trust your Honours have a copy of the oral outline. Your Honours will observe that many of the matters in that outline have of course been dealt with by the other parties and I am not proposing to traverse all of those matters in detail but they are set out to provide some structure and context for the key points that I do want to make.

Can I also make a preliminary comment about the nature of the outline? Your Honours will see on the first page matters directed more generally to section 44(iv) of the Constitution and on the second page we deal with the application of those principles to the position of office of mayor or councillor.

Now, I do not think I need to say anything about the first proposition which is the common ground about the nature of the phrase “the Crown” when used in section 44(iv) in the sense that all of the parties appear to agree that that phrase is directed to the third sense as set out in the judgment of their Honours the Chief Justice – Chief Justice Gleeson and Justices Gummow and Hayne in Sue v Hill.

But that does have some significance for a point that I want to come back to later in this submission and that is in part the relevance of authorities directed to the meaning of a State in the Constitution, in particular, the Municipal Council of Sydney Case. But it is the agreed starting point on which the parties have operated accepting, of course, that the Court is not bound by the position taken by the parties as to the appropriate understanding of the term “the Crown” in section 44.

It is also, I think, common ground, at least as between Mr Martin, the Commonwealth and Victoria that the characterisation of an office as one being under the Crown is to be informed by the principal mischief to which section 44(iv) is addressed and that was identified by the plurality in Sykes v Cleary as eliminating or reducing the influence of the Executive Government over the Parliament. Again, I do not think I need to say terribly much about that.

The third proposition your Honours will see is directed to the proposition that it is not sufficient to identify an office created under an Act for a public purpose in order to then conclude that the office is one under the Crown and the submission for the Attorney-General for Victoria is that it is necessary to identify sufficient connection and/or control of the office by the Executive by reference to the Act in question. We do say that that last phrase in that proposition on the outline is important because the exercise that we seek to have the Court undertake is an exercise in statutory construction.

In that sense, it is a different proposition, although it may have an evaluative aspect to it, it is a different proposition from, for example, some of the matters that concerned the Court in the context of dual citizenship which might turn on the particular individualised features of a person and their antecedents.

What we are suggesting to the Court as the correct approach focuses on an exercise of the construction of the Act under which the office is constituted, a task that is a familiar one to the Court and one that we say although may involve a degree of evaluation is not unduly evaluative. It does seem to us, with the greatest respect to the Solicitor-General for the Commonwealth, that the Commonwealth must also accept that there is a degree of evaluation required in relation to an office that is not appointed.

Fundamentally, can I say this about the Commonwealth’s proposed test. It is simply not this case. This case does not involve an office which is appointed by the Executive. In that sense it is not necessary for this Court, in this case, to decide whether appointment would be a complete answer to whether an office is an office of profit under the Crown.

Indeed it would be a large step for this Court to take, in the absence of that being the statutory context in which the question arises - and of course your Honours would be well aware of the caution that the Court commonly exercises in not deciding constitutional questions that do not arise in the matter before the Court.

So we would say to your Honours it is not necessary to decide whether appointment is a complete answer because there is no appointment here and it is necessary to go through an evaluative exercise in order to determine whether Mr Martin holds an office of profit under the Crown. We have set out, your Honours, some indicia - - -

EDELMAN J: Unless the view of section 44 was that at the core is a question of appointment and then one says what is it that is so like the power of appointment that that should also disqualify and that which is so like the power of appointment is a power of removal or a power to reduce remuneration to nothing, which is practical removal.

MS WALKER: Certainly an analogy could be made, your Honour, there. But in fact my submission would be that those matters are directed to questions of control, particularly control in relation to continued holding of the office and continued receipt of remuneration, both of which are not necessarily analogous to the question of appointment.

The other point, I suppose, that I would put to your Honour is that there may be a myriad offices that are subject to appointment by the Executive which are simply not before this Court, have not been raised in examples in the written submission or the oral submissions and for the Court to take a step of now saying that in all circumstances appointment by the Executive would be sufficient to disqualify a person simply may fail to grapple with the particular circumstances of an office to which the Court’s attention has not been drawn.

GAGELER J: We do have to understand that the core operation of section 44(iv), read with section 45 relevantly, is in relation to Commonwealth Executive influence over senators and members of the House of Representatives. Now, take Ms Hughes, whose circumstances were put to us by the Solicitor-General. What if Ms Hughes had been qualified and been elected and then was appointed to the AAT? It would be surprising, would it not, if the appointment itself was not the vice, the appointment to a paid office, supplementing the remuneration permitted under section 48 of the Constitution?

MS WALKER: That may be so, your Honour, but in that context we would say it is also relevant to consider the nature of the office to which Ms Hughes was appointed. Section 44(iv) is directed not to any office of profit but to an office of profit under the Crown. In my submission, the phrase “under the Crown” does have important work to do. One of the things it directs attention to is the nature of the duties – and obviously this is something that has been traversed already with the Court – that are performed by the person.

Indeed, on a number of occasions in his submissions, Mr Donoghue expressly referred to performance of executive functions. In the case of an appointment to the AAT, in my submission, it is correct to conclude that the office is under the Crown because it is appointed by the Minister but also because the nature of the office is one involving the performance of executive functions.

That does lead into a proposition that we seek to put which is that it is significant in this case that one is dealing with local councils which do not solely exercise executive functions at a State governmental level. They are exercising in a sense the complete bundle of State power, legislative and executive - I put to one side judicial - in relation to a local government area and, for example, a council may make by-laws, a council may levy taxes in the form of rates and that was one of the important features, we say, in the judgment of Justice O’Connor in the Municipal Council of Sydney Case.

Your Honours Justice Keane and Justice Gordon have adverted to this, that in that case - and we say in a sense that the cases about whether an entity is the State for the purposes of section 114 of the Constitution, for example, are really not directly on point in relation to how one understands section 44(iv) but what that case did reveal was that a local council is acting, to put it in Justice O’Connor’s words, as the agent of the Parliament, not as the agent of the executive.

So we say the duties involved in the performance of the function are significant in understanding whether the function is one under the Crown in the sense that if a person is exercising executive functions that would be more likely to be, perhaps not determinative, because we do say there are a number of indicia, but that would be more likely to be an office of profit under the Crown because it is quintessentially an exercise of executive power and all the parties are agreed that when we speak of “the Crown” in section 44(iv) we are speaking of the Crown meaning the Executive Government of either the Commonwealth or the States.

So we do say that in this case it is important in a sense to start from the proposition that a councillor is participating in a collective exercise of legislative power in performing the functions of councillor in the deliberative process of the council in the making, for example, of by-laws and the raising of rates and that, we say, is relevant in terms of the indicia which your Honours will see set out in item 4 of the outline, to questions of accountability because ultimately we say that firstly there is no power of appointment - and perhaps I can in fact move to the application of the indicia as I am conscious of time - plainly there is no power of appointment.

To jump at the moment briefly to the third point which is accountability, we do say that because of their elected nature and the nature of the duties performed by councillors which involve this exercise of legislative power in a particular tier of State Government, the councillor or mayor is primarily accountable to the electors of his or her municipality and not to the Executive.

In fact, that accountability to the community is expressly dealt with in section 20(2) of the Local Government Act (Tas) as well as being manifested through elections and through the nature of the duties exercised by councillors. Perhaps the most significant feature put against the proposition that a councillor or mayor does not hold an office of profit under the Crown in this particular context is the capacity for a degree of ministerial involvement in suspension and removal of councillors and your Honours have been taken through the relevant provisions.

Can I draw one additional provision to your Honours’ attention and that is that removal for incapacity is not a matter within executive power but is dealt with by application to a magistrate and that is found in section 28J of the Local Government Act and there is certainly no general power of executive removal.

What one does find, of course, are removal potentially, ultimately as an outcome of findings of breach of the code of conduct, potentially under the Local Government Board dismissal of all of the councillors but not an individual councillor, performance improvement directions lead to suspension but not removal and of course the board of inquiry process that your Honours have been taken to and that may lead to removal or dismissal of a councillor.

But that power and in fact all of these powers are not at large and in my submission whether considered individually or cumulatively they do not suggest the necessary level of control or connection between the Executive and a councillor that would be necessary to render the office one under the Crown.

Those powers are best understood as circumscribed powers directed to misbehaviour of some form or a failure to perform the functions of a councillor and it is plainly necessary that some entity have a power to deal with questions of misbehaviour, but that kind of circumscribed power to deal with misbehaviour does not mean that the Executive really exercises the necessary degree of control over the persons whom it may remove for misbehaviour, just as one would not say that Parliament exercises any real control over justices of federal courts because Parliament can remove those justices for misbehaviour.

Of course, it has been observed that the processes and limitations that surround these powers of removal and suspension are judicially enforceable. Your Honours, we do not want to repeat what the Solicitor-General for the Commonwealth has said about remuneration and we have set that out in our written submissions.

We have also addressed in point 8 of the outline some of the matters identified by the plurality in Sykes v Cleary that might cause concern in relation to executive officeholders and explain why we say those matters are not present in relation to a local councillor, perhaps with the exception of the capacity of the officeholder to attend to both sets of duties but we say

that is not a controlling factor and the presence of that factor would not render an office of profit one under the Crown if it was not otherwise properly understood in that way.

Finally, your Honours, in point 9 we make the submission that any difficulties associated with the dual performance of functions by a councillor or mayor can be dealt with by the Parliaments. The Commonwealth Parliament of course maintains its power to prescribe disqualifications for office and it has done so, for example, in section 164 of the Commonwealth Electoral Act, which has excluded members of State Parliaments from being eligible to sit in the Commonwealth Parliament.

Likewise, State Parliaments can provide that a local councillor cannot continue to be a councillor if he or she is elected to the Commonwealth Parliament. In our written submissions we note the provision in the Victorian Act that does precisely that.

In light of that residual ability of the Parliaments of the Commonwealth and the States to deal with any perceived difficulties, we say it is not necessary to take an extended view of section 44(iv) to try to capture a local councillor because it might be thought there might be difficulties with that person serving both as a councillor and in the Commonwealth Parliament because there remains the ability of the Commonwealth Parliament to make that judgment for itself. If the Court pleases, those are the submissions for Victoria.

KIEFEL CJ: Thank you. Any submissions in reply, Mr Newlinds?

MR NEWLINDS: If it please, your Honour. Dealing first with Mr Solomon - - -

[UNIDENTIFIED SPEAKER: Inaudible]

KIEFEL CJ: No, the Court will not hear you, we are hearing another case and you can apply in the usual way. Would you please leave the Courtroom? Yes, Mr Newlinds.

MR NEWLINDS: Dealing first with Mr Solomon’s submissions, in accepting that there is an evaluative judgment involved, my learned friend’s conclusion as to an – from an analysis of the relevant statute was, well, you do not get a very powerful connection. With respect, however one may describe this connection it is an awful lot more powerful than the connection between a school teacher and the Minister.

The High Court described the purpose that supported their conclusion as to the position of Mr Cleary - really it came down to two things. One, Mr Cleary will be too busy to do both jobs properly and, secondly, he might want to suck up to his boss. Now, in a substantive, real world environment the chances of the Minister knowing Mr Cleary existed or Mr Cleary having any day-to-day involvement with him are zero. Yet, the Court took the view that not just applying a textual approach to section 44 but what they said was a purposive approach that it was appropriate that low level public servants be disqualified as well as high ranking bureaucrats.

I simply say that to emphasise that the precedential value of Sykes v Cleary insofar as it applies to this case certainly supports the submission that we make that there is no need for a particularly powerful connection and the power or otherwise of the connection is yet another formulation of words which, in our respectful submission, distracts from the test which is “under”. Now, one can be under something or someone without there being a powerful connection. If there is a connection and it is a relevant connection, in our respectful submission, that is enough.

It was then said that the allowance of power, if I can call it that, cannot discriminate between particular councils and has to apply across the board and so much can be accepted but, in our submission, that is beside the point. There is still a power, circumscribed as it is, to effect the remuneration of the person who holds this office.

Justice Keane put a question which has been picked up by some of our learned friends – a minister who exercises one of these powers or discretions motivated by a desire to get even for something someone had done in the Federal Parliament would clearly be acting beyond power or would be abusing the power because it is obviously not intended for that purpose, and so much would be accepted.

But that is the nature of conflicts. When one finds oneself in a conflict of duty, inevitably, unless one walks away from the situation, if one acts on one side or the other one will have acted in breach of duty; one will have done the wrong thing. It is the pull of those conflicting duties that the section is designed, we think, to ameliorate from.

The test should be does it compromise the free and impartial discharge of duties to the person in the Federal Parliament. We accept that. The test is not is this going to compromise the integrity of a State minister in relation to his or her activities concerning a local council. The test is, is this local councillor, if elected to the Federal Parliament, going to be compromised in there for an impartial decision making and if Mr Cleary was at risk of not being able to do that job properly because he simply wanted to gain favour with his ultimate employer then we think by way of analogy the same must follow.

Now, it may be that Sykes v Cleary is explicable by simply noting that the decision was all public servants are in for historical reasons and perhaps just for having a red line reasons but one needs to be careful to go too far to give effect to the countervailing purpose of these sections which is obviously to allow certainty in elections and have things decided quickly. One cannot go too far towards the certainty side of things if the result of that is to completely destroy the intended purpose of the section.

In other words, if the position is for completely arbitrary reasons all public servants are in, well, that is all well and good for certainty purposes but one has completely lost sight of the purpose which is to prevent these conflicts. It would be a strange world, we think, if Mr Cleary is not entitled to sit in the Federal Parliament because of his relationship with the State Minister and yet the Lord Mayor of this local council, the mayor of the Council is because his relationship with his Minister is said to be not as strong. In our respectful submission, for the reasons I have put, it should be seen as stronger and analogous.

The next submission that was made by Mr Solomon, and I think picked up by the Solicitor-General for the Commonwealth and some questions that fell from Justice Edelman, well is this all about positions that involve acting in the public service or acting in public service. That throws up the question of what do we mean by public service? Are we talking about the civil service as it is described in Great Britain or are we talking about jobs that are directed to assisting the public or providing service to a public?

Now, if it is the latter, what local councils do and what local councillors do is quintessentially public service. Of course, your Honours do understand that perhaps the reason why there is no mention of local councillors and mayors in the Convention Debates, and why they are not discussed in the 1941 review in Great Britain, is because they were not paid. So they were just outside the area of discourse. What was being discussed were offices of profit and then how one should define the relationship of that office of profit. Now, we are confident to put that in Australia it was not until the middle of the last century that councillors started to get paid. We do not see any reference - - -

KIEFEL CJ: You say you are confident - what is the source of your authority for that?

MR NEWLINDS: It is in our written submissions in reply. We have reviewed the New South Wales legislation, we reviewed the Tasmanian legislation – we have not looked at all of the States. It was considered a position of honour and altruism for good citizens to get involved in assisting the government of the local community, and you were not paid. You did not even get allowances for travel expenses and the like until quite late in the piece. We do not see any mention of local councillors, aldermen or mayors in the discussions in the United Kingdom in 1941.

I will confess that we tried to look at it through the internet on our phones over lunchtime, but I am prepared to say that it is at least likely that the reason there is no discussion is they were not offices of profit. Again, what was being discussed in all of those learned articles and considerations were offices of profit.

So what you have is an office that existed at the time this Constitution was written and unlike other situations where things are invented along the way and the question becomes well, does this new thing that did not exist in 1900 fit within any aspect of the powers in the Constitution, this thing existed. There were always mayors, aldermen and councillors. What has changed is they are now paid.

Your Honours cannot help that. That is just the historical fact but the question now arises in these modern times as to whether what is now an office of profit is under the Crown. That is why we say you just cannot attach any moment to the fact that the Convention Debates do not talk about local councillors.

Turning then to my learned friend Mr Donaghue, the Solicitor-General for the Commonwealth of Australia, again I do not want to repeat myself. Obviously there is an attraction to have bright-line tests. Not only is it good for the Court who has to decide these things, it is also good for the electorate and the system for elections to be decided quickly and simply and without too much debate.

I accept that but on the other hand you cannot just write away the meaning of these provisions and change them into completely arbitrary capricious provisions which can be easily understood if that destroys the intended purpose. One has to take a balancing act.

I agree with the Solicitor-General for Victoria. The question of whether appointment per se is enough does not arise in this case because the one thing we do not have is appointment but I think if I was Mr Donaghue standing here he would say yes, but if that is right, that colours the characterisation of what you look for if there is not an appointment and maybe that is right.

The obvious analogue to appointment is dismissal or suspension. For reasons we have put there is a power to suspend or dismiss, constrained as it is. That is the evaluative judgment that I am afraid I think we all agree the Court has to grapple with. Is that enough? Our submission is yes, if one reminds oneself of the purpose and of the fact that it did not exist in 1900.

Our best case or our best example is the board of inquiry steps. One, the Minister can, as a matter of discretion, establish a board of inquiry, of course, subject to judicial review but what someone would have to show is that the Minister did not think that there was a need to establish a board of inquiry. Secondly, once the Minister has done that he has a discretion to suspend, unconstrained except to be used for the proper purposes, then depending on what the board says he can or cannot dismiss as a matter of discretion. Yes, constrained by judicial review and also by whatever the board reports in terms of the final discretion.

I would hazard a guess that Mr Cleary had an employment contract and that the unjust dismissal laws of the State applied to him and the Minister did not have an unconstrained ability to sack him at will and Mr Cleary could have gone to courts for breach of contract, breach of statutory obligation and potentially even judicial review if he could show, well, the reason this Minister has exercised his power to terminate my employment contract is because he wants to get even with something I have done in the Federal Parliament and one would think if you could prove that you would win because that is - - -

GAGELER J: Mr Cleary was appointed, of course.

MR NEWLINDS: Of course.

GAGELER J: So we might have to deal with the Solicitor-General’s submission.

MR NEWLINDS: Yes, about 30 years before by a minister who is probably long-since dead, by a government no doubt of a different political persuasion and the idea that Mr Cleary might be carrying a – what is it, a benign view of his original appointor, in my respectful submission, is fanciful. The question is what is his view – not what is his view of the nice Minister who notionally employed him all those years ago, it is what is his view of the current Minister and what the current Minister is doing?

If appointment is enough, because of this idea that their people naturally have a benign view of their benefactor, well, where does that leave independence of the judiciary? I am sure no judge that I know would accept for a moment that because they were appointed by a particular minister or a particular executive government that they carry any particular torch for that government when it comes before the court.

GAGELER J: When they are performing their judicial functions.

MR NEWLINDS: Of course, when they are performing their judicial functions.

GAGELER J: We are talking here about the effect on parliamentary functions.

MR NEWLINDS: We are, but if that judge - the one thing one could say with confidence about Ms Hughes, and I assume the AAT position was a five or seven-year contract so maybe she was holding out hope to get it renewed, but once she has been appointed she did not care what the Executive Government does or does not do after that. She is safe. So what would be the problem with her, as a purposive matter, exercising a free and independent view in Parliament?

Now, sometimes these examples get too strained and we need to come back to the particular position at hand and I have put why there are the pulls in different directions caused by this relationship. The decision of Clydesdale from Western Australia, insofar as it seems to equate “under” with “from”, we would make the submission that it is wrongly decided and in any event, it is a different constitutional provision in a different context and it was overruled by the High Court so it has no precedential value and so, in our respectful submission, your Honours would not place great, if any, weight on that decision.

The decision in Queensland, the issue was not argued and so once again it has no absolutely no precedential value and, call me old fashioned but I do not think Solicitors-General, because they choose not to argue things or argue things, create the law for any purpose that would have any impact on the Court, unless of course the particular Solicitor-General was on the Court, which is something I have to live with and the decision in New South Wales of Reid is so far off point your Honours would give no weight to it either which leaves us with the position that there really is not any decided cases other than Sykes itself and, of course, let us not forget Williams.

It is a different section but it does most emphatically say that “under” is a wider concept than “from” as we read it and on many occasions our learned friends’ submissions stray very close to the proposition that “under” means “from”; they are interchangeable and the like.

In light of the historical record in Britain, one thing one can infer the drafters knew was that there had been this historical muddle in the 1700s when the English Parliament got tangled up with the difference between “from” and “under” and if they meant it to mean “from” one would have

thought they would have said “from”. More likely they would say, “in the gift of” or something like that. They instead used the word “under”.

Then turning finally to the submissions of the Solicitor-General for Victoria, she embraced the proposition that what is really going on here is a delegation of the entire legislative and executive functions. I have dealt with that in an interchange with Justice Keane before lunch. We say, so what? It is still the executive function that has been delegated – banking – where you bank the money – the collection of rates as opposed to the setting of rates – the enforcement of laws. These are quintessential executive functions and they are all in the hands of the local council which is made up of and controlled by the local councillors.

Our learned friend then said well, if accountability has something to do with it - and, in our respectful submission, again, why are we sliding from “under” to “accountable”? Perhaps it is indicia. The submission was these people are accountable to the electors of their area and that is true but that does not stop them also being under the control of the relevant Minister.

Of course, as my learned junior reminds me, the Minister – albeit for reasons involved with, perhaps, geography and population – can affect that election, can call the election, can change the boundaries, can change the amount of people who can stand for particular areas.

The last point in answer to our learned friend’s submission where she said that well, the board of inquiry is obviously aimed at misbehaviour, there is nothing in the words of the statute that suggests that. It is not just aimed at misbehaviour; it is aimed at incompetence or lack of diligence or simply not doing the job to the satisfaction of an objective observer like the board of inquiry people and the Minister. That, constrained as it is, is much broader than an ability to suspend or dismiss for misbehaviour. Those are my respectful submissions.

KIEFEL CJ: The Court will adjourn to consider the course it will take.

AT 4.12 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.18 PM:

KIEFEL CJ: The Court is unanimously of the view that the answer to the question reserved for the consideration of the Court of Disputed Returns is no, Mr Martin is not incapable of being chosen or of sitting as a senator by reason of section 44(iv) of the Constitution. Any further questions arising from the Commonwealth’s summons will be dealt with by a single Judge. There will be orders accordingly. Reasons will be published at a later date.

The Court will adjourn until 9.45 am tomorrow for pronouncement of orders and otherwise to 10.15.

AT 4.19 PM THE MATTER WAS ADJOURNED