The Australian Electoral Commission v Johnston and Ors; Wang v Johnston and Ors; Mead v Johnston and Ors

These three cases, heard together, concerned applications by the Australian Electoral Commission (AEC) and two individuals, Mr Wang and Ms Mead, seeking declarations that the respondents, Mr Johnston and others, were incapable of being chosen as a Senator for New South Wales. The core of the dispute revolved around whether the respondents, by holding certain offices and receiving remuneration, had contravened section 44(iv) of the Constitution, which disqualifies a person from being a member of Parliament if they hold an office or place of profit under the Crown, or receive any pension from the Crown, other than an office to which an annual salary has been legally assigned.

The primary legal issue before the High Court was whether the respondents held "an office or place of profit under the Crown" or received "any pension from the Crown" within the meaning of section 44(iv) of the Constitution. This required the Court to determine the nature of the offices held by the respondents, the source of their remuneration, and whether these circumstances fell within the constitutional prohibition, considering the exception for offices with legally assigned annual salaries.

Hayne J reasoned that the respondents held offices that were created by statute and were part of the executive government of the Commonwealth. The remuneration received by the respondents was not an annual salary legally assigned to their offices, but rather a payment for services rendered, which constituted a "profit" under the Crown. His Honour applied the established principle that section 44(iv) is intended to prevent members of Parliament from being subject to undue influence or patronage from the executive government. The Court found that the offices held by the respondents were not excepted from the prohibition by reason of having a legally assigned annual salary.

The Court declared that the respondents were incapable of being chosen as a Senator for New South Wales.