find the latest legal job
Corporate Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Highly-respected, innovative and entrepreneurial Not-for-Profit · Competency based Board
View details
Chief Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Dynamic, high growth organisation · ASX listed market leader
View details
In-house Projects Lawyer | Renewables / Solar | 2-5 Years PQE
Category: Generalists - In House | Location: All Australia
· Help design the future · NASDAQ Listed
View details
Insurance Lawyer (3-5 PAE)
Category: Insurance and Superannuation Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Dynamic organisation ·
View details
Legal Counsel
Category: Corporate and Commercial Law | Location: North Sydney NSW 2060
· 18 month fixed term contract · 3-5 years PQE with TMT exposure
View details
Mayor’s dual role open to challenge

Mayor’s dual role open to challenge

The new mayor of Shoalhaven City Council could face a High Court challenge if she remains a member of Federal Parliament.

Joanna Gash, who was elected mayor in NSW council elections on Saturday (8 September), has announced plans to continue as the Liberal member for Gilmore until the next federal election. But her dual role could be deemed unconstitutional by the High Court, claimed George Williams (pictured), Professor of Law at the University of NSW.

“Gash is on uncertain ground,” he told Lawyers Weekly.

Under Section 44 of the Constitution, a person is disqualified from Federal Parliament if they hold an ‘office of profit’ under the Crown. This was applied by the High Court in 1992 to disqualify Phil Cleary, who had been elected as an independent member for the Victorian seat of Wills, because he was a state school teacher.

“This uncertainty has led political parties to exercise caution,” Williams said, referring to former Liberal senator Nick Minchin, who asked eight South Australian candidates to resign from their council positions and renominate in the 1993 federal election.

Williams argued that a dual role can give rise to a conflict of interest. Federal parliament is responsible for approving funding and enacting laws that affect local councils, he explained.

“The question that arises is whether Gash would vote in the national interest or on behalf of her local electorate,” he said.

There is also the question of capacity, Williams continued. “Being a mayor or parliamentarian is a demanding job ... it is hard to see how one person can do justice to both.”

Gash responded to critics in a statement in which she cited three precedents: Ben Chifley, who served on Abercrombie Shore Council during his time as treasurer and prime minister; Assistant Treasurer David Bradbury, who served as a local councillor for 12 months after his election, and Liberal Russell Matheson, who has served as an MP and local councillor for more than two years since coming to parliament in 2010.

But Williams warned that just because these politicians weren’t challenged does not mean Gash can predict how the High Court will rule on this matter. He added that Australia’s hung parliament gives Gash’s political opponents an incentive to challenge her tenure.

“This is an area that for some decades could have been challenged and it’s interesting that circumstances could give rise to a challenge on this occasion,” he said.

“[Political opponents] don’t have much to lose.”

They may, in fact, have much to gain, including cash. Williams explained that the Common Informers (Parliamentary Disqualifications) Act states that a parliamentarian who serves while disqualified is liable to pay $200, plus another $200 for every day they serve after the case is filed in court, to any person who sues for it.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Mayor’s dual role open to challenge
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
LCA president Fiona McLeod SC
Aug 17 2017
Where social fault lines meet the justice gap in Aus
After just returning from a tour of the Northern Territory, LCA president Fiona McLeod SC speaks wit...
Marriage equality flag
Aug 17 2017
ALHR backs High Court challenge to marriage equality postal vote
Australian Lawyers for Human Rights (ALHR) has voiced its support for a constitutional challenge to ...
Give advice
Aug 17 2017
A-G issues advice on judiciary’s public presence
Commonwealth Attorney-General George Brandis QC has offered his advice on the public presence of jud...
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...