EDELMAN J.
Introduction
Section 44 of the Constitution relevantly provides:
"Any person who:
...
(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; ...
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
But subsection (iv) 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 the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen's navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth."
At all relevant times in 2016, from the close of the Rolls until the return of the writ for the election of Senators, Mr Martin held offices of profit as a councillor of Devonport City Council and as mayor of Devonport. The issue on this reference was whether the offices of profit held by Mr Martin were "under the Crown" within the meaning of s 44(iv) of the Constitution. If so, then Mr Martin was incapable of being chosen or of sitting as a Senator at the federal election held on 2 July 2016. He would therefore be incapable of filling the vacancy created following the ineligibility of Ms Lambie.
In 1992, in Sykes v Cleary, a majority of this Court, sitting as the Court of Disputed Returns, held that Mr Cleary was incapable of being chosen as a member of the House of Representatives by operation of s 44(iv) of the Constitution. The office of profit under the Crown held by Mr Cleary - although he was on leave without pay - was that of teacher in the Education Department of Victoria. A party to this reference, Ms McCulloch, submitted that if the office of school teacher is an office of profit under the Crown, then the offices of councillor and mayor must also be offices of profit under the Crown.
In the parties' submissions, two different approaches were taken to the construction of "office of profit under the Crown" in s 44(iv) of the Constitution. Although there were differences in emphasis, the submissions of Ms McCulloch, Mr Martin, and the Attorney-General for the State of Victoria can be collectively treated as the first approach. That approach focused upon the ordinary meaning of "under" as requiring, in every case, an evaluation of all of the incidents of the office, and the extent to which it is controlled by the executive government of Tasmania. If that approach were adopted, there would be real force in Ms McCulloch's submission that it would be an anomaly to treat a school teacher as holding an office of profit under the Crown, but not a councillor or mayor.
The second approach to the construction of "office of profit under the Crown" was the submission of the Attorney-General of the Commonwealth. His submission was that an office of profit is under the Crown if (i) the office is appointed by the executive government, or (ii) the person holds the office subject to the power of the executive government to remove the person at will or to alter the remuneration of the office at will. Like the first approach, the enquiry required by this submission involved evaluation. But the enquiry was not into some unspecified degree of control by the Crown. It was into whether there was complete control by the Crown over appointment to the office, removal from the office, or the profits from the office. This submission is inconsistent with the decision of this Court in Sykes v Cleary, which treated holding of an office as employment in the public service. The Court considered Mr Cleary's submission that the only persons subject to sufficient power of the executive government to require disqualification were those "who hold important or senior positions in government". In his 1887-1888 lectures, Maitland had explained that governmental offices of "high order" and "executive officers" were positions that could be dismissed at the will of the Crown. In rejecting Mr Cleary's submission three members of this Court said that "[h]istory 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".
If the matter were free from (i) the unchallenged authority of the decision in Sykes v Cleary, and (ii) the pre-Federation purpose and context, relevant to informing the meaning of the expression "under the Crown" in the sense it was intended to have in its continuing operation, the choice might be between the first and second approaches. That choice would be one of degree. The question would be whether the preposition in the expression "office of profit under the Crown", in its unchanged, ordinary meaning informed by constitutional purpose, required complete control by the Crown over the appointment to the office, the removal from the office, or the profits from the office. On the Commonwealth's submission, anything short of complete control, even complete control over appointment or remuneration subject only to disallowance by Parliament, would not disqualify.
Neither of these approaches should be accepted. The meaning of the expression "office of profit under the Crown" in s 44(iv) of the Constitution had crystallised after two centuries of legal usage prior to Federation. As Sir Samuel Griffith QC said in submissions in 1889, it was "an old phrase, well understood in relation to parliamentary law". Although its application to particular facts was not always simple, the phrase encompassed (i) offices "from" the Crown, where the holder was appointed by the Crown, and (ii) as decided in Sykes v Cleary, offices, whether or not from the Crown, which involved employment by the Crown. Prior to Federation, this second limb of an office "under the Crown" had been described as membership of the public service. In Sykes v Cleary, Mason CJ, Toohey and McHugh JJ, whose reasons concerning s 44(iv) were the subject of express agreement by Brennan J, Dawson J and Gaudron J, applied this second limb, explaining that it had been accepted in England and Australia that an "office of profit under the Crown" encompassed public servants and that the disqualification embraced "at least those persons who are permanently employed by government".
This second limb was the reason why the Court held that Mr Cleary, who was employed by the Crown but plainly could not be dismissed at will, was disqualified by s 44(iv). It is also the reason why Mr Martin, who was not employed by the Crown, was not, and is not, disqualified. For these reasons, set out in more detail below, I joined in the orders made.
The historical context and purpose of the phrase "under the Crown"
The distinction between offices "from" and "under" the Crown
There was no dispute on this reference that Mr Martin held offices of profit as councillor and as mayor. It was also common ground that although "the Crown" was used at the time of Federation in "several metaphorical senses", the sense in which it was used in s 44(iv) was to refer to the executive branch of government, represented by the ministry and administrative bureaucracy. The only issue was whether the offices of profit held by Mr Martin were "under" the Crown. In the joint judgment in Sykes v Cleary, their Honours referred to the history and purpose of s 44(iv) as derived from the Act of Settlement 1701, as repealed and replaced in 1705 and re-enacted by ss 24 and 25 of the Succession to the Crown Act 1707. At the time of Federation, this legislation was still in force in the United Kingdom and had formed "the foundation of all subsequent legislation" that had "reimposed" the disqualification in particular contexts.
In the centuries before Federation it became generally accepted that ss 24 and 25 drew a distinction between (i) "old offices" (existing before the Act in 1705) in s 25, to which disqualification applied if the office was "from the Crown", and (ii) new offices (existing after the Act in 1705) in s 24, to which disqualification applied if the office was "under the Crown". The difference between the expressions came to be recognised, as the authors of Rogers on Elections suggested in 1857, and repeated in every edition between 1857 and 1895, as being that offices "from the Crown" were only those that were "in the immediate patronage of the Crown", whilst those "under the Crown" were not so limited and included both offices from the Crown and "all offices connected with the public service". Erskine May directed his readers to that explanation in 1893. The same view was later reiterated by Sir Gilbert Campion in evidence before the House of Commons Select Committee on Offices or Places of Profit under the Crown.
The two expressions were also commonly used with different meanings in colonial constitutions. For instance, ss 18 and 19 of the New South Wales Constitution Act 1855 (Imp) created separate disqualifications for offices of profit held under the Crown and offices of profit accepted from the Crown. It is unnecessary on this reference to consider the effect of any distinction between holding an office and accepting an office because it was common ground that Mr Martin held the offices of councillor and mayor, which is the relevant criterion for s 44(iv). It suffices to say that, consistently with historical usage, ss 18 and 19 treated offices of profit held under the Crown as a broader concept than those offices accepted from the Crown.
Offices under the Crown because they were "from" the Crown
Prior to Federation, offices appointed by, and therefore from, the Crown were all offices "under" the Crown, no matter how little control or influence the Crown might have over the office. Justices of the peace held offices under the Crown because they were appointed by the Crown. During the Convention Debates, it was assumed by the delegates that judges, appointed by the Crown, held offices of profit under the Crown. And in Re Nash (No 2), this Court held that the office of member of the Administrative Appeals Tribunal is an office of profit under the Crown. This was because it is an office appointed by, and therefore from, the Crown.
An office from the Crown included all manner of appointments, including appointments to statutory boards and tribunals. Very shortly before Federation, the office of member of the Board of Stock Commissioners, appointed by the Governor in Council under the Diseases in Stock Act 1896 (Q), was held to be an office of profit under the Crown within the meaning of the Officials in Parliament Act 1896 (Q). However, if the office was not appointed by the Crown then it was not from the Crown, even if appointed by an officer of the Crown. An example was the Clerk of the Pells, which was an office appointed by the Treasurer of the Exchequer, rather than directly from the Crown. Hence, it was not an office from the Crown. Nor were the offices of Masters in Chancery, prior to 1833, when they were not appointed by the Crown but by the Lord Chancellor.
The rationale for a strong rule of disqualification where the office was "from the Crown" was that the process of appointment to an office by the Crown was regarded as "the conferring of a benefit upon some person whom the appointer wished to favour or reward". Prior to the Act of Settlement and its successors, in a practice that originated in the Tudor and Stuart periods and continued until the Revolution, an appointment could be made by the Crown in exchange for payment or as a reward for political service. The disqualification from parliamentary office of persons appointed to profitable offices reduced the conflict between pecuniary interest and parliamentary duty.
There were well-known exceptions to the general rule that all appointments from the Crown led to the holder's disqualification from election to Parliament. One exception was the office of Minister of State. The holders of the high offices of State were required to be able to serve in Parliament because "their business must be conducted subject to the criticism of the representatives of the people". This reasoning must have informed the express exemption of Ministers from disqualification by s 44 of the Constitution.
In the 1941 House of Commons Select Committee Report, it was suggested that there had been doubt about whether the disqualification of holders of offices under the Crown in the United Kingdom included several particular appointments made by the Crown: the Regius Professors of the Universities of Oxford and Cambridge; the Master of Trinity College, Cambridge; and the Provost of Eton. The doubt was said to exist because the offices had no political significance and the stipends attached to them were not paid by the Crown or out of public funds. But even if analogous offices existed in Australia, it would be difficult to see a reason why such exceptions, not included in the express exemptions in s 44(iv), should be implied. Even in these instances, there were notorious examples of circumstances in which the Crown exercised power to make controversial selections of a Regius Professor or to veto a candidate.
Offices under the Crown that were not "from" the Crown
There were other offices "under the Crown" apart from those offices "from" (or appointed by) the Crown. As I have mentioned, the circumstances in which other offices would fall "under the Crown" were considered by the authors of Rogers on Elections, Erskine May, and Sir Gilbert Campion to be where those offices were "connected with the public service". Professor Maitland's subsequently published lectures of 1887-1888 took the same approach. This approach was reflected in the joint judgment in Sykes v Cleary, where it was held that s 44(iv) disqualifies "public servants, who are officers of the departments of government, from membership of the legislature". That expression of the disqualification embraced "at least those persons who are permanently employed by government".
The concept, at Federation, of a public, or civil, servant as holding an office under the Crown ordinarily involved a conception of recruitment by interview or examination, age limits and compulsory retirement, and potential dismissal of some such servants at the pleasure of the Crown. But none of these incidents was part of any "special prerogative" of the Crown and, during a period in which employment in the public service was in a state of flux, none was part of the concept of a public servant, relevant to the meaning of an office of profit under the Crown in s 44(iv). The essential meaning involved a relationship, subject to control by the Crown, which could be characterised as employment. The content of that essential meaning (employment) may have changed but the meaning remains the same.
The characterisation of "employment" by the Crown as the meaning of the second limb of offices of profit "under the Crown" reflects the manifested intention to maintain the consequence, known and desired at Federation, that the disqualification of public servants from Parliament had played "an important part in the development of the old tradition of a politically neutral public service". As Maitland explained, the disqualification of those holding subordinate offices had the consequence of creating a permanent civil service "unidentified with any particular policy", whereas "were [civil servants] in parliament they might easily fall out with their superiors, and we should have the whole civil service changing with the ministry". The objective desire to maintain that consequence therefore informed the purpose and meaning of "under the Crown" in s 44(iv), just as it had informed the purpose of the 19th century reimposition of disqualifications "under the Crown" since the emergence of an independent public service.
Sir William Anson explained how maintaining this desirable consequence had been a rationale for many "more modern" (ie 19th century, when he was writing) disqualifications of offices of profit under the Crown. He said that the legislature had not been content to "leave new offices to the operation of the [Succession to the Crown Act]" but had "reimposed the disqualification in a great number of Acts of Parliament" for new offices under the Crown such as the offices of Charity Commissioner and member of the Council of India. He went on to say that these 19th century disqualifications were:
"for the most part imposed to secure the undivided attention of officials to the business of their departments, and the advantage of a permanent civil service unaffected by changes of ministry or by considerations of party politics."
Anson's view - that an independent civil service was a rationale for the 19th century reimpositions of the disqualification provisions from the Succession to the Crown Act - reflected an Order in Council, derived from an 1884 Treasury Minute. That Minute was set out, as below, and described by the Royal Commissioners on the Civil Service in their 1914 Report as "representing the considered opinion of the Government of the day, a view which has been accepted by subsequent Governments without modification":
"The First Lord expresses to the Board his own strong sense of the public injury which must be the consequence of any departure from the conditions which, under Parliamentary Government, render a permanent Civil Service possible, and he points out that, among those conditions, the essential one is that the members of such a service should remain free to serve the Government of the day, without necessarily exposing themselves to public charges of inconsistency or insincerity."
The Commissioners continued, saying that "[t]he rule as to candidature for Parliament by a Civil Servant on the active list has been consistently maintained; but the rule with regard to candidature for County Councils has been altered".
There remained also the original purpose for the reimposed 19th century disqualifications that fell under the second limb of "under the Crown". That purpose was the same as the purpose of the expression "under" the Crown in the first limb in its use from the Act of Settlement through to s 44(iv) of the Constitution. It was to avoid conflict between parliamentary duty and pecuniary interest within a Minister's "valuable privilege of patronage over employment in the public service". Supplementing and restating these two purposes were the three reasons given in the joint judgment in Sykes v Cleary for the incompatibility of positions of employment by the Crown with membership of the Commonwealth Parliament:
"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. 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."
A pre-Federation example of an office "under the Crown" arising from a relationship that could be characterised as one of employment was the office of poundkeeper under the Impounding Act 1863 (Q). That office was held in 1889 to be an office of profit under the Crown, disqualifying the holder from election to a Divisional Board under the Divisional Boards Act 1887 (Q). The poundkeeper was appointed and removable by justices of the peace. Like the Clerk of the Pells, who was appointed by an officer of the Crown but not directly by the Crown, it was not suggested that the office of poundkeeper was an office under the Crown because it was appointed by, and therefore "from", the Crown. Instead, in argument, Mr Real focused upon the Crown's powers over the poundkeeper, including deputing the appointment to the justices, the retention by the Crown of the right to receive money and to revise the poundkeeper's accounts, and the poundkeeper's duty to give a bond and to account for his fees to the Crown. Similarly, Sir Samuel Griffith QC focused upon all the circumstances of the office, submitting that the "direct authority given to the justices by statute to appoint him" made the poundkeeper a public officer but not one under the Crown. The question was whether, in all the circumstances, the poundkeeper was "a Crown officer". In other words, was he employed by the Crown?
The Chief Justice delivered the judgment of the Court. He explained that the justices had the power to appoint the poundkeeper and the power to remove him for neglect or misconduct, "but there, all authority over the poundkeeper by the justices seems to cease". The Chief Justice described the question as "whether he was holder of that [office] under the Crown, or was he merely appointed by the Justices of the Peace" (emphasis added). The circumstances beyond mere appointment that were found to be sufficient to characterise the office as one under the Crown were the same factors as would be considered in an assessment of whether the poundkeeper was employed by the Crown:
"[T]he justices are limited merely to the appointment, and removal under particular circumstances. Now, a pound is a public pound; it is established, and may be abolished by the act of the Executive Council. The poundkeeper is accountable to the Crown for fees received; he must give a bond to the Crown for the proper discharge of the duties of his office. He is placed under the inspection of an officer of the Crown, called the Inspector of Brands, and his appointment and removal depend on the judgment of other officers of the Crown, who are the Justices of the Peace. It seems to us, that, looking at all these circumstances, and at the Act, that he must be a minor officer of the Crown, whose appointment was made by the Justices of the Peace ... and whose appointment under these circumstances brings him within the law, as a minor officer. That being so, firstly, he is holding an office of profit, and secondly, he is holding that office of profit under the Crown." (emphasis added)
In contrast with those offices appointed by, or employed by, the executive government, other offices were not "under the Crown". For instance, a member of State Parliament was not "under the Crown" and therefore not disqualified by s 44(iv). There was, and is, also a "principle that Parliament has always asserted in England and elsewhere", that "appl[ies] equally" in Australia, that the offices of President of the Senate and Speaker of the House of Representatives are not offices under the Crown. Those offices are appointed by their respective Houses and their holders are not employed by the executive government. Similarly, in England, during the debates on the Representation of the People Act 1867 (UK), the Attorney-General, Sir Roundell Palmer, said that the "uniform practice of the House" was not to treat the office of Under Secretary of State as an office under the Crown because the office "is appointed, both in form and in substance, by the Secretary of State".
Sykes v Cleary and Mr Martin
Mr Cleary was appointed as a teacher under the Teaching Service Act 1958 (Vic). That legislation created a statutory tribunal (the Teachers Tribunal), which appointed teachers and determined their pay. At the time of Mr Cleary's appointment as a teacher, the Teachers Tribunal consisted of six members, who served fixed terms. Three of the members were appointed by the Governor in Council, and two of those appointees represented the Government of Victoria. The other three were elected by teachers. The members of the Teachers Tribunal were not, in respect of their office, subject to the provisions of the Public Service Act 1958 (Vic). At the time of Mr Cleary's appointment it would have been difficult to characterise his office as being held "under the Crown" on the basis of an appointment from the Crown. Perhaps for this reason, the case was not argued with any focus on Mr Cleary's appointment to the office.
The Teachers Tribunal was abolished by the Education Service Act 1981 (Vic). By the time Mr Cleary nominated for the House of Representatives, the legislation had become the Teaching Service Act 1981 (Vic). It contained provisions defining teachers as "permanent officers" (s 2) who were "employed by Her Majesty in the teaching service" (s 3). The case was argued by the Attorney-General of the Commonwealth, and by Mr Sykes, on the basis that Mr Cleary was disqualified because Victorian teachers were employed by the Crown and therefore held offices "under the Crown". One basis upon which that submission was resisted by Mr Cleary was that employment by the Crown was not sufficient to make a teacher a member of the Victorian public service. The reasoning of the Court, about which "constitutionalism and the rule of law are as concerned" as they are with the outcome, was that Mr Cleary was disqualified because he was employed by the Crown.
The joint reasons set out in detail the powers of the executive government of Tasmania over the offices of councillor and mayor held by Mr Martin. It suffices to describe the most significant of those powers briefly. The executive has a limited power to suspend, remove or dismiss holders of those offices, and a power, subject to disallowance by Parliament, to set the remuneration of the offices. Ms McCulloch rightly did not submit that these powers were sufficient to characterise Mr Martin as being employed by the executive government. The offices held by Mr Martin were not under the Crown because he was neither appointed, nor employed, by the executive government of the State of Tasmania.
Conclusion
For these reasons, I joined in the order of the Court answering the question reserved as follows: Mr Martin is not incapable of being chosen or of sitting as a Senator by reason of s 44(iv) of the Constitution.