Consideration
15It is clear that Ms Okeno was not at any time an employee of the Council in any orthodox sense. The question, therefore, is whether in her role as Town Centre Coordinator she could be said to occupy an office of profit or place of profit under the Council.
16We are not aware of any local government disqualification cases that have dealt with similar circumstances.
17The High Court held in Sykes v Cleary that the Commonwealth Constitution's disqualification of persons who hold any 'office of profit under the Crown' from standing for Federal Parliament (see cl 44(iv)) extends at least to 'persons who are permanently employed by government', even if they are on leave without pay (per Mason CJ, Toohey and McHugh JJ at 582; agreeing, Brennan J at 592; Deane J (who dissented as to the outcome) at 597; Dawson J at 610). This is not a case of that kind.
18A closer analogy is provided by the recent High Court case, Williams v Commonwealth of Australia [2012] HCA 23 (20 June 2012); 86 ALJR 713. The plaintiff challenged the validity of Commonwealth government funding of chaplaincy services to State schools. The High Court examined the arrangement between the Commonwealth and the Scripture Union of Queensland (SUQ) for the provision of chaplaincy services at the Darling Heights Primary School, attended by the plaintiff's children.
19One of the issues was whether s 116 of the Constitution was infringed. Section 116 provides that 'no religious test shall be required as a qualification for any office ... under the Commonwealth'. Did a school chaplain engaged by the SUQ under the funding arrangement occupy such an office?
20Gummow and Bell JJ said at [109] (French CJ at [84], Hayne J at [168], Crennan J at [476]. Kiefel J at [598], agreeing):
109. The chaplains engaged by SUQ 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.
21Heydon J (in dissent as to the outcome) adopted a similar view on this issue: see [443]-[447].
22Unlike the Commonwealth provision under notice in Sykes v Cleary, s 275(2) refers separately to 'employees' and persons holding 'offices of profit' (or 'places' of profit). When segregated in this way, we consider that the term 'office' has, as its primary connotation, a government post, usually of some seniority, where the occupant has functions that are to be exercised independently, free from influence or direction (as, for example, a commissioner of customs, a judge or a tribunal member). See further, Local Government, Planning and Environment Service, Vol. C [420,020] (LexisNexis).
23For an illustration of the distinction between an employee and an office holder who is appointed and remunerated otherwise than under a contract of employment, and the differing consequences that might flow in relation to access to certain entitlements, see Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Hookey v State of New South Wales (Department of Health Mental Health Review Tribunal) [2012] NSWIRComm 13. The distinction between office holders and employees was also canvassed in Sneddon v State of New South Wales [2012] NSWCA 351. Australian case-law does not cast light on the difference between an 'office' of profit and a 'place' of profit. We assume that the term 'place' is simply being used to deal with those situations where the person under notice does not hold a declared office of the relevant tier of government but carries out functions in service of that tier of government.
24It is commonplace in modern public funding arrangements for government to make grants to private organisations for the carrying out of functions seen by government as in the public interest. People who work for the private organisations would not ordinarily be seen as employees of the government, or otherwise the holders of government offices or places of profit under the government.
25We accept that cases might arise where it can be demonstrated that the funding authority exercises such a degree of control in the appointment of and work of the individual functionary of the private organisation that, properly characterised, the functionary could be said to be a servant of the government. Mr Sullivan's argument, as we apprehended it, was along those lines.
26Mr Sullivan referred to the degree to which Ms Okeno's income depended on the funds received by the SBCCA under the funding grant, he referred to various reporting clauses in the annual deeds of grant, and he drew attention to the provisions governing the appointment of the Town Centre Coordinator for the locality.
27In our view, all of the provisions were ones of a usual kind in funding agreements between a government authority and a private organisation.
28The evidence is clear that Ms Okeno was employed by the SBCCA on an independent contractor basis. The funding arrangement was made at arm's length between the Council and the SBCCA. It was subject to detailed accountability requirements. Ms Okeno was engaged by the SBCCA. The SBCCA bore ultimate responsibility for the adequacy of her performance. In respect of her role as Town Centre Coordinator, there is no evidence that she was subject to day to day direction or control by Council officers. She was required to perform her function in a manner compliant with the funding deed. The evidence is that she reported to executive members of the SBCCA as appropriate. She had a key role in developing the critical accountability document, the town business plan. We accept that she presented the draft, and related reports, to the Executive Committee, and it reported to Council.
29Her circumstances are very similar to those affecting school chaplains in the Williams case. The only difference as we see it is that she was selected by a process that included a Council officer on the interview panel. We do not regard that as decisive in any way. The officer was only one of three, and we have no evidence as to how the officer performed his role.