Legal Research
Cases
Re Lambie

Re Lambie

Case [2018] HCA 6 14 March 2018

Type to search within this case.

HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
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
Re Lambie
[2018] HCA 6
Date of Order: 6 February 2018
Date of Publication of Reasons: 14 March 2018
C27/2017
ORDER
The question reserved for the consideration of the Full Court under s 18 of the Judiciary Act 1903 (Cth) be answered as follows:
Question
Is Mr Martin incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution?
Answer
No, Mr Martin is not incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution.
Representation
C R C Newlinds SC with P Kulevski appearing on behalf of Ms McCulloch (instructed by Holman Webb Lawyers)
P H Solomon QC with C O H Parkinson appearing on behalf of Mr Martin (instructed by Corrs Chambers Westgarth)
S P Donaghue QC, Solicitor-General of the Commonwealth with Z E Maud and B K Lim appearing on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
No appearance for Ms Lambie
K L Walker QC, Solicitor-General for the State of Victoria with M Hosking appearing on behalf of the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Re Lambie
Constitutional law (Cth) – Parliamentary elections – Reference to Court of Disputed Returns – Where Court held there was a vacancy in representation of Tasmania in Senate – Where Court made directions for special count of ballot papers to fill vacancy – Where orders sought following special count that Mr Steven Martin be declared elected as senator to fill vacancy – Where Mr Martin held offices of mayor and of councillor of local government corporation under Local Government Act 1993 (Tas) – Whether Mr Martin incapable of being chosen or of sitting as senator by reason of s 44(iv) of Constitution – Proper construction of s 44(iv) of Constitution – Where no dispute that office of mayor or of councillor is "office of profit" – Whether office of mayor or of councillor constitutes office of profit "under the Crown".
Words and phrases – "civil service", "conflict between duties", "conflict of duty and interest", "control over holding or profiting from holding", "employment by the Crown", "employment in the public service", "executive government", "executive influence", "from the Crown", "incapable of being chosen or of sitting", "office of profit", "public service", "under the Crown", "will of the executive government".
Constitution, ss 44(iv), 45(i), 48.
Commonwealth Electoral Act 1918 (Cth), s 376.
Local Government Act 1993 (Tas).

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ. On 14 November 2017, the Senate resolved to refer questions to the High Court sitting as the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Lambie

Details

AGLC: Re Lambie [2018] HCA 6
Case: [2018] HCA 6
Decision Date: 14 March 2018

CaseChat Overview and Summary

The High Court of Australia considered whether Mr Steven Martin was incapable of being chosen or of sitting as a Senator for Tasmania by reason of section 44(iv) of the Constitution. This question arose following a special count of ballot papers ordered by the Court of Disputed Returns to fill a vacancy in the Senate. Mr Martin held the offices of mayor and councillor of a local government corporation under Tasmanian legislation, and it was not disputed that these were "offices of profit".

The central legal issue before the High Court was the proper construction of section 44(iv) of the Constitution, specifically whether the offices of mayor and councillor constituted an office of profit "under the Crown". This required the Court to determine the scope of the phrase "under the Crown" in the context of state executive government powers over local government officials.

The Court reasoned that the offices held by Mr Martin were not "under the Crown" because he was neither appointed nor employed by the executive government of Tasmania. While the executive government possessed certain powers, such as a limited ability to suspend or remove office holders and to set remuneration subject to parliamentary disallowance, these powers were not considered sufficient to characterise Mr Martin as being employed by the executive government. The Court concluded that the offices were not under the Crown in the sense contemplated by section 44(iv).

Accordingly, the High Court answered the question reserved for its consideration by stating that Mr Martin is not incapable of being chosen or of sitting as a Senator by reason of section 44(iv) of the Constitution.

Orders

Orders of the court

The question reserved for the consideration of the Full Court under s 18 of the Judiciary Act 1903 (Cth) be answered as follows:

Question

Is Mr Martin incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution?

Answer

No, Mr Martin is not incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ EDELMAN J

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[166]. 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[167], and a power, subject to disallowance by Parliament[168], to set the remuneration of the offices[169]. 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.[166]See Local Government Act 1993 (Tas), ss 27A, 28AA, Pt 3 Div 3A, Pt 12B, Pt 13.[167]Local Government Act 1993 (Tas), ss 28ZL(3), 214E, 214O(1)(a), 215(5), 226.[168]Acts Interpretation Act 1931 (Tas), s 47(4).[169]Local Government Act 1993 (Tas), s 340A.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.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ, EDELMAN J

Full text does not contain this section.

Actions

Citations

Re Lambie [2018] HCA 6

Most Recent Citation

Dimitropoulos v South Eastern Melbourne Primary Health Network Ltd [2025] FedCFamC2G 1633

Cases Citing This Decision

Dimitropoulos v South Eastern Melbourne Primary Health Network Ltd [2025] FedCFamC2G 1633
Citation 1

…an Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 92 ALJR 291; [2018] HCA 6 Community and Public Sector Union v Telstra Corporation Limited (2001) 107 FCR 93; [2001] FCA 267 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] FCA 1431 Dafall…
Lyneham Community Association Inc v ACT Planning and Land Authority & Ors (Administrative Review) [2024] ACAT 16
Citation 2 (Para 4)

…CJ; Norbis v Norbis [1986] HCA 17 at [2] per Brennan J; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [23] per French CJ; Re Lambie [2018] HCA 6 at [49] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ…
Hornsby Shire Council v Commonwealth of Australia & Anor [2023] HCATrans 45
Citation 3

…for the purposes of 114 of the Constitution , in case there was any difference between those two positions, and we refer to the decision in Re Lambie (2018) 263 CLR 601 at page 621, paragraph 41. To the extent that Air Caledonie and Woodhams have been sought to be distinguished on the basis that in those cases there…
Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 4557
Citation 4 (Para 1)

…, just as there may well be a political price to be paid for any claim of conclusiveness, whether it is well-based or not. ”[75] [72] Re Lambie [2018] HCA 6 at [23] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ [73] Ibid [74] [2006] HCA 45; (2006) 229 ALR 187; 80 ALJR 1549; Hayne, Callinan and Heydo…
Council of the City of Ryde v Azizi [2019] NSWSC 1605
Citation 5 (Para 159)

…l and Shire Council Employees’ Union of Australia v Melbourne Corporation (1919) 26 CLR 508; [1919] HCA 73; Re Lambie (2018) 263 CLR 601; [2018] HCA 6 at [41] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ.…
Comcare v Banerji [2019] HCA 23
Citation 6 (Para 7)

…n of that tradition in due course. [84](1992) 176 CLR 77 at 96; [1992] HCA 60. See also Re Lambie (2018) 92 ALJR 285 at 291 [26]; 351 ALR 559 at 566; [2018] HCA 6.…
Edm17 v Minister for Immigration [2018] FCCA 1673
Citation 7 (Para 11)

…te the applicant to an interview.[31] [27] Section 473DB of the Migration Act [28] Plaintiff M174/2016 v Minister for Immigration [2018] HCA 6 at [20]–[38] [29] Section 473CB of the Migration Act [30] Sections 473DC–473DF of the Migration Act [31] Sub-section 473DC(2) and s.473DC(3)(b) of the Migration Act…
Obeid v Lockley [2018] NSWCA 71
Citation 8

…] VSCA 106 R v Whitaker [1914] 3 KB 1283 Re Baden’s Deed Trusts (No 2) [1973] Ch 9 Re Baden’s Deed Trusts [1971] AC 424 Re Lambie [2018] HCA 6 Rush v Commissioner of Police (2006) 150 FCR 165; [2006] FCA 12 Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64 Sanders v Snell (No 2) (2003) 130 FCR 149; [2003] FCAFC…

See all citing cases →

Cases Cited

Re Nash (No 2) [2017] HCA 52
Citation 1 (Para 7)

…not only does s 44 operate to prevent the person from sitting but s 45(i) operates to vacate his or her place"[2]. [1](2017) 92 ALJR 23; 350 ALR 204; [2017] HCA 52. [2](2017) 92 ALJR 23 at 29 [33]; 350 ALR 204 at 212.…
Re Canavan [2017] HCA 45
Citation 2 (Para 22)

…directed in terms of "eliminating or reducing ... executive influence over the House"[26]. [24](2017) 91 ALJR 1209 at 1219 [48]; 349 ALR 534 at 546; [2017] HCA 45. [25] Re Day (No 2) (2017) 91 ALJR 518 at 535 [97]; 343 ALR 181 at 201; [2017] HCA 14. See also 91 ALJR 518 at 535 [98], [100], 542 [156], 556 [263];…
Re Day (No 2) [2017] HCA 14
Citation 3 (Para 22)

…[26]. [24](2017) 91 ALJR 1209 at 1219 [48]; 349 ALR 534 at 546; [2017] HCA 45. [25] Re Day (No 2) (2017) 91 ALJR 518 at 535 [97]; 343 ALR 181 at 201; [2017] HCA 14. See also 91 ALJR 518 at 535 [98], [100], 542 [156], 556 [263]; 343 ALR 181 at 201-202, 212, 230-231. [26](1992) 176 CLR 77 at 97.…
R v Jones [1999] WASCA 194
Citation 4 (Para 15)

…s 20; Western Australia Constitution Act 1890 (Imp) (53 & 54 Vict c 26), Sched 1, ss 6, 28, 29(5), 71. [104]18 & 19 Vict c 54. [105]Compare R v Jones [1999] WASCA 194 at [30] with Twomey, The Constitution of New South Wales , (2004) at 434. Offices under the Crown because they were "from" the Crown…
Sue v Hill [1999] HCA 30
Citation 5 (Para 9)

…authority to which duties and emoluments are attached[7]. [6](1992) 176 CLR 77 at 95-98, 108, 130, 132. Cf Sue v Hill (1999) 199 CLR 462 at 499 [87]; [1999] HCA 30. [7]Cf Sykes v Cleary (1992) 176 CLR 77 at 95; R v Boston (1923) 33 CLR 386 at 402; [1923] HCA 59. Issues and parties' submissions…
Reid v Sydney City Council [1994] HCATrans 136
Citation 6 (Para 17)

…19 at 233; [1992] HCA 6, citing The Municipal Council of Sydney v The Commonwealth (1904) 1 CLR 208; [1904] HCA 50. [50]Cf Sydney City Council v Reid (1994) 34 NSWLR 506 at 519-520.…
Sykes v Cleary [1992] HCA 60
Citation 7 (Para 8)

…ition of a part-time member of the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 (Cth)[5]. [3](1992) 176 CLR 77; [1992] HCA 60. [4](1992) 176 CLR 77 at 97. [5](2017) 92 ALJR 23 at 26 [9]; 350 ALR 204 at 207.…
Deputy Commissioner of Taxation v State Bank (NSW) [1992] HCA 6
Citation 8 (Para 17)

…councillor form part of the executive government of Tasmania[50]. [49] Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219 at 233; [1992] HCA 6, citing The Municipal Council of Sydney v The Commonwealth (1904) 1 CLR 208; [1904] HCA 50. [50]Cf Sydney City Council v Reid (1994) 34 NSWLR 506 at…
Brown v West [1990] HCA 7
Citation 9 (Para 6)

…to its members in virtue of their office and which are not mere facilities for the functioning of the Parliament"[33]. [33](1990) 169 CLR 195 at 201; [1990] HCA 7. Interpretation of office of profit "under" the Crown…
R v Boston [1923] HCA 59
Citation 10 (Para 9)

…132. Cf Sue v Hill (1999) 199 CLR 462 at 499 [87]; [1999] HCA 30. [7]Cf Sykes v Cleary (1992) 176 CLR 77 at 95; R v Boston (1923) 33 CLR 386 at 402; [1923] HCA 59. Issues and parties' submissions…
Carey v The Commonwealth [1921] HCA 54
Citation 11 (Para 5)

…ish Civil Service 1780–1939 , (1941) at 19. [125] Dunn v The Queen [1896] 1 QB 116 at 119, 120; Carey v The Commonwealth (1921) 30 CLR 132 at 135; [1921] HCA 54; Holdsworth, A History of English Law , (1964), vol 14 at 131. [126] Shenton v Smith [1895] AC 229 at 234-235. [127]Zafarullah, Colonial Bureaucracies:…
Horne v Barber [1920] HCA 33
Citation 12 (Para 24)

…(to say the least of it) his sense of obligation of due watchfulness, criticism, and censure of the Administration." [27](1920) 27 CLR 494 at 500; [1920] HCA 33. See also R v Boston (1923) 33 CLR 386 at 401-402.…
The Municipal Council of Sydney v The Commonwealth [1904] HCA 50
Citation 13 (Para 17)

…r of Taxation v State Bank (NSW) (1992) 174 CLR 219 at 233; [1992] HCA 6, citing The Municipal Council of Sydney v The Commonwealth (1904) 1 CLR 208; [1904] HCA 50. [50]Cf Sydney City Council v Reid (1994) 34 NSWLR 506 at 519-520.…
Clydesdale v Hughes [1934] HCA 38
Citation 14 (Para 13)

…t 10, 44; United Kingdom, House of Commons, Report from the Select Committee on Offices or Places of Profit under the Crown , (1941) at xiii [17]. Cf Clydesdale v Hughes (1934) 36 WALR 73 at 85.…
[1896] 1 QB 116 [1896] 1 QB 116
Citation 15 (Para 5)

…ws of England , (1909), vol 7 at 80-81, §139. [124]Cohen, The Growth of the British Civil Service 1780–1939 , (1941) at 19. [125] Dunn v The Queen [1896] 1 QB 116 at 119, 120; Carey v The Commonwealth (1921) 30 CLR 132 at 135; [1921] HCA 54; Holdsworth, A History of English Law , (1964), vol 14 at 131. [126] Shent…
[1895] AC 229 [1895] AC 229
Citation 16 (Para 5)

…ey v The Commonwealth (1921) 30 CLR 132 at 135; [1921] HCA 54; Holdsworth, A History of English Law , (1964), vol 14 at 131. [126] Shenton v Smith [1895] AC 229 at 234-235. [127]Zafarullah, Colonial Bureaucracies: Politics of Administrative Reform in Nineteenth Century Australia , (2014) at 216-217. [128] Birmin…
[2001] 1 AC 617 [2001] 1 AC 617
Citation 17 (Para 5)

…onial Bureaucracies: Politics of Administrative Reform in Nineteenth Century Australia , (2014) at 216-217. [128] Birmingham City Council v Oakley [2001] 1 AC 617 at 631.…

Legislation Cited

Local Government Act 1993 (TAS) 214E, 214O(1)(a), 215(5), 226, 27A, 28AA...
9 mentions (from Para 3)
Constitutional Act 1854 (Tas) 27, 32
3 mentions (from Para 13)
Acts Interpretation Act 1931 (TAS) 47(4)
2 mentions (from Para 3)
Commonwealth Electoral Act 1918 (Cth) 376
2 mentions (from Para 1)
Constitution Act 1867 (Qld) 20
2 mentions (from Para 13)
Administrative Appeals Tribunal Act 1975 (Cth)
1 mention (from Para 8)
Constitution Act 1855 (SA)
1 mention (from Para 13)
Crown Act 1707 (UK)
1 mention (from Para 13)
Independent Commission Against Corruption Act 1988 (NSW) 64A
1 mention (from Para 10)
Judiciary Act 1903 (Cth)
1 mention (from Para 4)
Local Government (General) Regulations 2015 (Expired) (TAS)
1 mention (from Para 16)
New South Wales Constitution Act 1855 (Imp)
1 mention (from Para 13)
Ombudsman Act 1974 (NSW) 31BA
1 mention (from Para 10)
Public Finance and Audit Act 1983 (NSW) 57A
1 mention (from Para 10)
Public Service Act 1958 (Cth)
1 mention (from Para 14)
Subordinate Legislation Act 1992 (TAS)
1 mention (from Para 3)
Teaching Service Act 1981 (Vic)
1 mention (from Para 8)
Victoria Constitution Act 1855 (Imp)
1 mention (from Para 13)
Western Australia Constitution Act 1890 (Imp)
1 mention (from Para 13)