Re Lambie

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.