The Lord Mayor of Sydney, Clover Moore, is also the member for Bligh in the NSW Legislative Assembly. The Lord Mayor defends her holding both positions but increasingly she is being challenged in political and media circles.
Now Dr Anne Twomey, a leading authority on constitutional law, has asked whether a mayor can also be a member of the State Parliament.
The NSW constitution provides that a person holding an ‘office of profit under the Crown’ shall not be capable of sitting and voting as a MP.
Dr Toomey says there were two reasons for the enactment of this provision in 1855.
“First, it was intended to ensure the independence of members of Parliament by preventing them from being bribed by lucrative offices that were in the gift of the government.”
“Second, it was intended to avoid conflicts of interest where people hold two offices. It is supported by the common law doctrine of ‘incompatibility of office’, which provides that where an office-holder accepts a second office that potentially gives rise to conflicts of interest, the first-held office is vacated and only the later office continues to be held.”
…constitution and common law..
She says that both the constitutional provision and the common law doctrine exist to ensure that public office-holders act in the full interests of their office and are not hampered by conflicting duties and interests.
“That is why members of one house are prohibited by the NSW constitution from simultaneously being a member of the other house, or from being a member of another parliament.”
Asking how this applies to the issue of a person who is both a member of Parliament and a mayor she points out concludes that the first rationale – bribery – is irrelevant, as the office of local councillor or mayor is not within the gift of the government.
However, the second rationale remains highly relevant. Clearly there will be occasions when there seems to be a conflict of interest between acting as a councillor and mayor and acting as an MP.
“A local councillor is obliged to act in the interests of his or her council, whereas a member of State Parliament is obliged to act in the interests of the state as a whole, which may be quite different from the interests of his or her local government area.”
The crucial question is of course is whether a person is legally disqualified from holding both offices.
Dr Twomey points out that the courts have held that an elected position may still be an ‘office’.
“They have also held that even though an office-holder does not accept the fee or salary attached to an office, it is still an 'office of profit' – so giving away one's local government remuneration does not avoid the constitutional problem.”
“ The constitution does contain an exception, however, where the office-holder is entitled only to attendance fees and the payment of reasonable expenses incurred in the course of carrying out the duties of the office. But mayors of large cities clearly receive remuneration beyond sitting fees and expenses, so they would not be protected by such an exemption.”
“The critical issue is whether the office of local councillor or mayor is an office of profit ‘under the Crown’. Arguably, this means that the office must be subject to some form of direction or supervision by the government, and that the office of local government is not ‘under the Crown’' in this sense.“
"The fact that the NSW constitution regards the holding of an office as a member of another parliament as being an ‘office of profit under the Crown’ might lead a court also to regard the office of a local councillor as falling within the same category, at least in NSW. "
"The only precedent is a Queensland decision, but it was based upon the acceptance by both parties in the test case that the office of local councillor was not an office of profit under the Crown, so it is not authoritative.”
"This question has not been tested in the courts, and as Dr Twomey says, it is likely that the parties have turned a blind on the practice."
She argues that it is now time for the question to be clarified. Can you be both a mayor and an MP?