Notes

[1] Volume 196 Parliamentary Debates, p.452.
An attempt by the Labour Member for Perth, the Hon. Thomas Burke, in the House of Representatives nine days later, to have the Speaker seek particulars from Mr. Menzies of whom he might have had in mind was gently rebuffed by the Speaker on the grounds that neither the Speaker nor any other member is entitled to question another member on "statements which he makes out of the house".

[2] The amount then paid to members and senators was £1500 a year. (A contribution of £156 was taken out. It is presently 11.5% of that which is paid to members; reducing to 5.75% after 18 years in parliament). If a member chose to resign their seat, 12 years' service was necessary in order then to receive a pension: section 18 (3) of the Parliamentary Retiring Allowances Act 1948.

[3] The bill received the assent of the Governor-General on the 21st December 1948.

[4] Volume 200 Parl. Debates (Reps.) p.4280.
The Bill was opposed primarily on the aspect of its generosity, not on any principle behind it. The view expressed in 1948 by the member for Flinders as to the undue generosity of the proposed benefits is today echoed by a former Minister for Industrial Relations, the Member for Kingsford-Smith, who, in The Australian of the 22nd March 1999, was reported to have said that, when measured against the community standard available to workers, "Parliamentary superannuation is outrageously generous...".

[5] The Leader of the Opposition travelled overseas from June 1948 to January 1949 and it was the Leader of the Country Party, Arthur Fadden, an accountant and eventual long-term Treasurer in the succeeding Menzies Government, who lead the debate in opposition to the measure. He informed the House that he had examined not only the schemes mentioned by the Prime Minister but also ones in Queensland and New Zealand and "None is as beneficial as the scheme now before us..."

[6] "The Limitations, if Any, on the Powers of Parliament to Delegate the Power to Legislate"; The Hon. Mr. Justice David Malcolm (1992) ALJR 247 at p.252. Also, Boodram and Others v Baptiste and Others, (PC) The Times, June 1, 1999.

[7] Malcolm C.J., op cit, 252.

[8] Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73, per Evatt J. at 120. An example of this is to be found in NSW v The Commonwealth [1990] ALJR 157 where, by a 6-1 majority, the High Court determined that sections of the Commonwealth Corporations Act 1989 that purported to furnish it with legislative power for the incorporation of trading and financial corporations were ultra vires and therefore invalid because, although section 51 (xx) of the Constitution confers power to legislate as to: "Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth", it was not intended to confer power on the Commonwealth to enable a company to be actually brought into life through a law of the Commonwealth. The Court determined that the legislative power of the Commonwealth is limited to corporations already "formed". Incorporation had to be left to the States.

[9] The only mention therein of payment to a person is in s.51 (xxiii), which equips the Parliament with power to make laws with respect to: "Invalid and old-age pensions:"

However, the placitum of s.51 to which particular reference will later be made is (xxxvi):

"The Parliament shall, subject to this Constitution, have power to make laws for peace, order and good government of the Commonwealth with respect to: - ...
(xxxvi) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides:"

[10] The Acts Interpretation Act 1901 of the Commonwealth says as to "marginal notes" that they do not form part of an Act: Section 13(3). Similar provisions apply in the States. This is apparently based on a policy arising from the fact that because Bills debated in the Parliament in days-gone-by contained no such notes (being put there afterwards by the printer), their wording was therefore not a possible subject for debate and should not be part of the Act. However, the Acts Interpretation Act 1901 cannot affect the Constitution. Moreover, the marginal notes of what became the Constitution were inserted in the first draft finalised in 1891 and remained as part of the document debated during the following four Conventions; and also as part of the final draft which went to the people. And, a move to amend a marginal note in the Constitution (however absurd the idea) would need to be through a referendum. As to the area generally: Wacando v Commonwealth of Australia [1981] 56 ALJR 16, that marginal notes cannot cut down the plain meaning of a statute (at 21 per Gibbs CJ); and also Statutory Interpretation in Australia (4th ed.) DC Pearce and RS Geddes at paragraph 4.40, where it is concluded that marginal-notes should not, however, be entirely rejected as a guide to the scope of a particular section.

In Section 48, the marginal-note refers to the same subject matter as the Section itself. If this is of any significance, it is that the marginal-note confirms the subject matter of the Section.

In the recent case of Sue v Hill [1999] HCA 30, the High Court went beyond that which might otherwise have been predicted about a marginal-note's absorption into a Section of the Constitution. Section 44 was the legislation at the heart of the matter.

"Any person who .. is a subject or a citizen ... of a foreign power ... shall be incapable of being chosen .. as a senator.." (emphasis added)

The one-word marginal note to the Section is: Disqualification. During the course of the Justices' lengthy reasons for decision, the phrase "incapable of being chosen" is raised almost as if en passant - and, even then, but some 8 times (apart from repeating words contained in the actual Petition or in giving formal findings, and the like). But, on a total of some 30 occasions, members of the Court posed the problem as being in relation to "constitutional disqualification", or to a person being "constitutionally disqualified", or to the "disqualification contained in Section 44". The word "disqualification" is, however, not contained in Section 44.

[11] "It is permissible to have regard to the history of constitutional provisions in order to establish their object and the draft bills considered by Constitutional Conventions have long been considered a legitimate aid to interpretation." Svikart v Stewart (1995) ALJR 35 at 37 per Mason CJ, Deane, Dawson and McHugh JJ.

[12] Firstly the word-order was changed.
There was then a reduction of £100 in the amount of the allowance and the insertion of the words directing that the allowance be "reckoned from the day on which he takes his seat".
Lastly, by a hand unknown, the words "for his services" were simply deleted.

[13] If so, at least two of the early Minsters of State considered this less than adequate. Isaac Isaacs, who, as one of the nine Ministers, as Attorney-General, in the second Alfred Deakin Ministry, continued to carry on a large private practice (until going onto the High Court in July 1906). The sole criticism directed at him for continuing to practice, from a few members of the Parliament, was due to one of his clients being the State of South Australia (holding a retainer for it in relation to use of the waters of the Murray River for irrigation, navigation etc.). He was, thereby, said to be in conflict with his duties as Attorney-General for the whole of the country. However, as Deakin noted in his support of him in the House of Representatives, Isaacs' predecessor as Attorney-General in the Reid administration, Josiah Symon, had likewise been retained by South Australia - and no objection had then been taken. Isaac Isaacs, Zelman Cowen (OUP, 1967) 98-99.

[14] "... with powers ... for the execution and maintenance... of the provisions of this Constitution relating to trade and commerce, and of all the laws made thereunder.": section 101. Legislation has twice been enacted to bring it into being: in 1912 and 1975. Those interested in the history of this "fourth arm of government" will find most of it in an article by a former member, Michael Coper, in [1989] 63 ALJ 731.

[15] Lansell v Lansell [1964] 38 ALJR 99 at 104 per Taylor J. His Honour added: "... but it is beyond question that, although the meaning of these terms does not change, their denotation must extend as new concepts develop." Hence, the Court decided that section 51(xxii) - "Divorce and matrimonial causes" - had, within it, the capacity to provide for the enactment, in 1959, of a law of the Commonwealth which, back in 1900, would not have been recognised anywhere in Australia as a "matrimonial cause": to wit, a suit for a property settlement in favour of a wife against a "guilty" husband - only the reverse being known at the turn of the last century.

The form of the wording used by Taylor J was earlier put forward in Ex parte Professional Engineers' Association (1959) 107 CLR 208, by Windeyer J in terms which, on first-reading, can be a bit mind-numbing:

"We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900. The denotation of words becomes enlarged as new things falling within their connotations come into existence or become known. But in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes." (p.267)

His Honour's formula uses two particular words - "denotation" and "connotation" - in a specialised manner: that used by John Stuart Mill in System of Logic, Ratiocination and Inductive in 1843. Denotation is the naming of a thing to which a generalised word applies. Connotation is not only that which may denote a subject but, at the same time, (and this is the important part) implies its attributes.

If an extension of the application of a word arises (ie., something with similar attributes to that which is already included within the connotation), it can be connoted within the original word.

When such an extension occurs to words which name a subject-matter in the Constitution, that extension can be encompassed without any alteration to those words. Such words simply do some additional work. But, should an attempt be made to include within a word or words something which has different attributes, this cannot properly be done.

It equally follows that, if to include a possible extension you need to alter the connotation of a word from that which it had in 1900, you are going to the extent of attempting to put a new word into the Constitution and, therefore, this is surely the basis behind the principle which precludes a change in the connotation.

The application of the formula may not necessarily produce results as precise as P1 V1 = P2 V2; but it strikes the author as being nonetheless useful. The only troublesome part may be in working out "the attributes".

A further deficiency may be in a continued use of "denote" and "connote". They are two of the imported, Latinate words which did not achieve full currency. However, most words coined to describe the function of words fail to attain popular usage. And, if they do, the precision of their specialised usage may be blunted.

Twenty years after Windeyer J came up with the formula, Barwick CJ echoed it in Attorney-General for Victoria v Commonwealth [1981] 55 ALJR 155 by saying that "the denotation of the words may expand, whilst their connotation remains fixed" and that the meaning to be assigned is that:

"... in which the words of the text were understood in the day of their expression. ... the then current meaning of the words used in the text is the meaning, the connotation, they must thereafter bear..." (p. 157);

[16] Shorter Oxford English Dictionary on Historical Principles {SOED}, Third Edition (1970) p.1781.

[17] SOED, p. 1702.

[18] Precise usage of the word, from around that era, is found in section 100 of the Canadian Constitution Act 1867:

"The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are for the time being paid by Salary, shall be fixed and provided by the Parliament of Canada." (emphasis added)

[19] SOED, p. 47.
Mutual Acceptance Company Limited v. Federal Commissioner of Taxation (1944) 69 CLR 389 dealt with the use of the word as part of a constrained statutory definition under the Pay-roll Tax Assessment Act 1941-1942. The reasons for decision of Latham C.J. and Dixon J., in particular, are, nonetheless, pertinent to this present context.

See also the reasons for decision of Hungerford J. in Alliance Management Pty Ltd v Caputo (1996) 82 IR 370 commenting on those of Latham C.J.

[20] Or as, for instance, in the case of Victoria, by section 126 of the Constitution Act Amendment Act 1890, it was that:

"Every member of the Legislative Assembly shall be entitled to receive reimbursement of his expenses in relation to his attendance in the discharge of his Parliamentary duties at the rate of Three hundred pounds per annum...."

For the amounts of the other allowances, see J. Quick and R. Garran: The Annotated Constitution of the Australian Commonwealth, Angus & Robertson: 1901 at p.499. (The authors are, of course, known to most readers. It was John Quick who put forward a plan at Cowara, in July 1893, at a meeting between the Australian Natives Association and the border leagues - and after the Federal Movement had come to somewhat of a stand-still - that the colonial parliaments be asked to pass identical enabling Acts providing for the election by the people of delegates to a convention to draft a constitution and for the submission of the draft to popular ratification; which plan "has come to be regarded as the starting point of a new Federal Movement, one more popularly based than that associated with Sir Henry Parkes." A Constitutional History of Australia, W.G. McMinn (OUP, 1979) p. 108. He was a delegate at the Conference at Adelaide in 1897, and the one at Melbourne in 1898. As a young man, Quick had been the first student to be awarded a Doctorate of Laws from Melbourne University, on his merits. Robert Garran had been secretary to the 1897 Drafting Committee and was the first permanent under-secretary in the Attorney General's Department.)

[21] "Mr. (afterwards Sir Henry) Wrixon ... one of the most upright and honourable of men.": Alfred Deakin, by W Murdoch (1923) Constable & Co. Ltd. at p 75.
William Marmion was "A successful Fremantl merchant, he was known as a fluent speaker and a keen debater, and one of the most popular members of the Legislative Council.": Forrest 1847-1918 Vol 1 by F K Crowley, UQP, 1971 at 272.

[22] Official Report of the National Australasian Convention Debates, Sydney [1891], p.653.

[23] J.Quick and R.R.Garran, op cit, 499.

[24] Convention Debates, Sydney [1891], p.653-4.

[25] J.Quick and R.R. Garran, op cit, 498.

[26] Convention Debates, Adelaide [1897] p. 1031-2

[27] The power of a William Trenwith in debate in a parliamentary setting is not usually found today (and his capacity as such was even then recognised by commentators, such as Alfred Deakin in his book dealing with the Conventions). The joust between he and Sir William is, on paper at least, both lively and quite entertaining, with much of it going on to deal with allegations of how certain Victorians and Tasmanians received their "benefit" from being in Parliament from foreknowledge of the arrival on the market of river-front land; and appearing to end in somewhat of a rout for the otherwise redoubtable Sir William. But, finally, the motion was put that the amount of the allowance stay at £400, rather than be £500. This was contrary to William Trenwith's proposal. It was, however, carried by 26 votes to 9.

[28] He was later elected to the Senate in 1903.

[29] He was at that time Secretary of the Victorian Operatives Bootmaking Union; and paid a salary of £300 per annum.

[30] In the Colonial Parliaments, ways had been found to get around this. During debate in the newly opened Federal Parliament in 1902 on the piece of legislation which got rid of the effect of this phrase (by way of the very first Parliamentary Allowances Bill), the member for the electorate of Tasmania, the remarkable King O'Malley (born in North America and there the founder - somewhere in Texas - of the Waterlily Rock-Bound Church) reflected how: "In the olden times, after an election, the Ministry called Parliament together so that the honourable members could draw their allowances; but if a man was unfortunate enough to be elected and not to be sworn in before the close of a session, he had to wait six or seven months..." Similar experiences were noted by other honourable members. Parliamentary Debates, 1st Session p. 16059.

[31] Page 499.
The last aspect - of attendance in Parliament itself - is less time-consuming here than for any other comparable country. An examination of the sitting days between 1985 and 1993 for the following Westminster-style parliaments showed that the United Kingdom averaged 164 days, the United States 143 days, Canada 139 days, New Zealand 93 days and Australia 62 days. This amount of sitting-days, for Australia, is about the same as in the decade following 1901. Institute of Public Affairs Review Vol. 46 No.4, Anthony D. Smith.

[32] The inclusion of "Minister of State" was abandoned by the Act of 1952 and has not been re-included in any subsequent similar legislation.

[33] A number of words such as "emoluments" which were subsequently used will be referred to in this paper as needs be. However, this word "emoluments" lasted only until a repeal and re-enactment of the Section in 1952. It has never since reappeared in this Act - or in the three other Acts which were eventually to deal with this area: the Remuneration Tribunal Act 1973, the Remuneration and Allowances Act 1990, and the Parliamentary Entitlements Act 1990.

[34] Saving, of course, the office of Minster of State; which may involve additional time in work.

Of the other four offices, the first two, the office of President of the Senate and Speaker of the House of Representatives, are prescribed by Sections 17 and 35 of the Constitution. No provision, however, is made in these Sections for a salary, remuneration or additional allowance to accompany the office. Nor is reference made therein to the position of Chairman of any of the committees of the Parliament (the future existence of which committees is recognised by section 49).

[35] There was no discussion in the Parliament as to the basis on which the legislation was being made.

The additional question as to whether these particular payments constitute the recipient as holding an "office of profit under the Crown" in accordance with placitum (iv) of s.44 of the Constitution is an interesting one - but outside the scope of this present paper. However, interested readers will find the possible applications of s. 44(iv) discussed by three Justices of the High Court in Sykes v Cleary [No.2] [1992] 67 ALJR 59, at pp.61-63.

[36] This phrase, "until the parliament otherwise provides", occurs 19 times in the Constitution.

[37] And (iii) has been earlier dealt with.

[38] The amount thereof may be fixed for the sake of convenience, after making a global assessment; and particularly in the case of a relatively large number of people who may indeed incur varying but, on average, not dissimilar amounts of loss. This would thereby remove the difficulty otherwise attendant upon having to make distinction between the group. Or, as predicated by Quick & Garran (supra), the allowance may be apportioned: "...providing that each member shall be paid according to the distance which he travels or the attendance which he gives at the sittings of his House."

[39] Power to thus extend the capacity to legislate does not reside within the so-called "incidental power" of section 51 (xxxix).
"This power [Section 51 (xxxix)] is concerned with matters incidental to the execution of a power, not with matters incidental to its subject matter. It cannot be used to expand the subject-matter of any of the enumerated legislative powers. Illustrations of the operation of paragraph (xxxix) are not numerous ..." Gazzo v. Comptroller of Stamps (Vic.) 56 ALJR 143, Aickin J. at 158.

[40] Section 5.

[41] Section 9.

[42] Sub-section (6) provided that if the Trust was of the opinion that a woman had married a member "principally for the purpose of becoming entitled to a benefit under this Act", the Trust could determine that "no such pension or benefit shall be paid". No provisions of this ilk remain in the present Act; which also now provides for a remaining husband.

Also, both the surviving husband or wife can now remarry without loss of the moneys being paid to them by the Commonwealth (and which moneys are now called an "annuity", not, as previously, a "pension").

However, until quite recently, a residue of an earlier provision against an adventuress remained and which barred from receipt of this pension anyone, male or female, who married an ex-member entitled to one, if, at marriage, the ex-member was 60 or over and died within the next 5 years: Parliamentary Retiring Allowances Act 1948-1973, s.19(7).

[43] The amounts payable under this scale are increased if the member has been a Minister of State or "an office holder": see Section 18(9).

[44] The husband or the wife of a member who dies (or of a retired member who is receiving a pension who dies) is to receive, for the remainder of their life, five-sixth of the pension which their spouse would have received (or was indeed receiving).

No matter when a member may die after first being elected, the member is, for the purposes of the "annuity" to be paid to their husband or to their wife, deemed to have served at least 8 years.

[45] As to the phrase "retiring allowance", there remained, at the time of Federation, in at least two of the Colonies, a one-off payment made to some civil servants on departure. In South Australia, for those who retired having "attained the age of sixty years, or have been twenty years in the Civil Service", it was a sum equal to one month's salary for every year served: Civil Service Act, 1874 s. 32. This was known as a retiring allowance and, although the concept was sui generis, it was somewhat akin to the original long-service leave; being to provide the means to go "home". (Indeed, the Section dealing with such "leave of absence on half salary" after 10 years service - and on full salary after 20 years - was s. 30 of the same Civil Service Act, 1874).

During the course of the Debates, a Section of the Constitution gradually evolved to accommodate those officers of the various departments from the Colonies which were to be taken over by the Commonwealth.

"84. Any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing rights and shall be entitled to retire from office at the time, and on the pension or retiring allowance, which would be permitted by the law of the State..." (emphasis added)

Section 84 also provides that a State and the Commonwealth share responsibility for payment. During the Adelaide Conference in April 1897, Richard O'Connor, from New South Wales, was asked by the South Australian Premier, Charles Kingston QC, what this might mean, in money terms, for the Commonwealth.

"O'CONNOR: I have no actual idea, but it would not mean a great deal, because there are not many colonies in which the system of pensions and gratuities exists.
Mr. Kingston: We have retiring allowances.
Mr. Barton: Have they not almost died out?
Mr. Kingston: Oh, no."
(Official Record of the Debates of the National Australasian Convention, Adelaide [1897] Page 864.)

A pension and a retiring allowance were quite distinct. So much is made clear by Mr. F. W. Holder MP and Mr. J. H. Gordon MLC during debate on the same section ten months later in Melbourne.

Mr. Gordon: "We have not got one pension in South Australia". (Official Record of the Debates of the Australasian Federal Convention [1898] p. 993)
....
Mr. Holder: "Though we have no pension list in South Australia, we have a retiring allowance, which is to be paid to certain officers on their retirement from the service;..." (Ibid. at p.995)
....
Mr. Holder: "We have managed to get rid of the pension system in South Australia ..." (Ibid. at p.996)

And, eighteen years later, that State also got rid of the retirement allowance: via the Public Service Act 1916, which did not re-enact the Section of the Civil Service Act, 1874 dealing with retirement allowances. (The 1916 Act also cut the long-service leave to a third of what it had been.)

[46] Sections 5 (1) and 5 (2) made similar provisions as to members of the House of Representatives.
A member is not required to account for how the "electorate allowance" is spent.

[47] The "electorate allowance" is apparently treated by the Australian Tax Office simply as income. "The electorate allowance is taxable unless it can be shown that the expenditure was tax deductible. Any balance not accounted for is liable to income tax." Background Paper 7, 1997-98 (17 November 1997); Remuneration of Members of the Parliament of Australia.

[48] Sec. 4(1) and 4(2).

[49] Section 12 of the Act, entitled "Fees and allowances", provides: "A member ... shall be paid such fees and allowances as are prescribed."
The annual "fees" are presently $52,000 for the President and $25,000 for each member:
Regulation 4 of Remuneration Tribunal (Members' Fees and Allowances) Amendment Regulations 1998 (No.1). The "allowances" are those "payable to an officer of the Australian Public Service at the level of Departmental Secretary": Regulation 5 of Remuneration Tribunal (Members' Fees and Allowances) Regulations.

[50] The sub-sections of this Section appear to hand over the whole of a legislative subject-matter of the Constitution to a body outside Parliament. It is, however, beyond the scope of this paper to comment on the possibility that, as a result, the Section might therefore not be a law made pursuant to an actual head of legislative power and, if so, therefore be beyond the legislative power of the Commonwealth Parliament. Readers interested in this aspect are again referred to the article by Malcolm C.J., op cit.

[51] The inclusion into Section 7(1) of the words "(including allowances in accordance with section 48 of the Constitution)" would seem to be quite unnecessary, unless these words have been used for a purpose similar to the use of word "allowance" in the 1948 Act which initiated pensions; ie., to endeavour to provide an ostensible validity to the scope of the legislation.

[52] The genesis of the Remuneration and Allowances Act 1990 is to be found at 170 Deb. Parl. (H. of R.) pp. 1015-18. Schedule 3 of the Remuneration and Allowances Act 1990 was amended in 1994 by Schedule 2 of the Industrial Relations Legislation Amendment (No. 2) 1994. Clause 2 of Schedule 2 provides that "The Members of Parliament annual salary is equal to the minimum SES Band 2 annual salary."

[53] Section 5(2) is a remarkable provision - and it is easy to imagine the reasoning behind its inclusion. But it is not easy to envisage how it was ever expected to operate, in the real world. In any event, there was, apparently, within the department responsible for drafting the Act still a vestige of a foreboding about such matters even as late as 1990.

[54] It was not then said that this particular ticket was for travel on First Class or, at the least, Business Class; however, this is implied by what followed in Clause 9(2):
"The class of travel entitlement of the member may be downgraded to offset the cost of the fare of an accompanying spouse or to enable the travel to be extended."

[55] The need to summarise these arises because the "benefits" cover 19 A4 pages, single-spaced. Not all benefits are included. (The summary retains the clause-numbering of the Determination.)

[56] An examination of the legislation which enables payments to be made to the other branches of government - for instance, payment of pensions to the Justices of the Courts referred to in Section 71 of the Constitution - would extend this article beyond acceptable lengths. Nonetheless, a number of the observations made as to the allowance payable under section 48 may be made pro tanto as to the remuneration to be paid pursuant to Section 72(iii).

And, it is at least interesting to note the unusual circumstances which produced the first such pension: to Sir Samuel Griffith, via the Chief Justice's Pension Act 1918. As was said at the time, the legislation was being made for one man. It was simply so Sir Samuel should then resign: he was showing increasing signs of senility. But, appointments were then for life and he was resolved to remain in office unless he received a pension. The Chief Justice's Pension Act - of only three Sections - occupies but half a page. By s. 2:

"The First Chief Justice of Australia shall be entitled upon resigning his office to demand a pension..."

The only constitutional basis seemingly put forward in the Parliament to support the legislation was not that it was "remuneration" in accord with Section 72(iii) but that Section 84 of the Constitution (see endnote 45 above) might provide for it: in that Sir Samuel, in coming from the Queensland Supreme Court, may have been one of those officers who had transferred to the Commonwealth from a State and, in his former position there, having entitlement to a pension.

So much comes through from the objections of Senator Lt-Colonel O'Loghlin: "By no stretch of the imagination can the present Chief Justice be called a transferred officer. The position was not in existence when the Commonwealth was inaugurated." Parliamentary Debates (1918), p. 9894. In the Senate, the debate was fiery. Opposition members called the Bill "unfair", "a damnable proposal", "worse than an outrage" and "a crime against the people of the country". His pension of £1,750 would, it was said, pay that of seventy pensioners who received 12s.6d. a week; he had already been "the highest paid official in the Commonwealth for 15 years on a salary of £3,500". The vote was carried on party lines, 14-8. No provision was made for the puisne Judges: Barton, Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ. A year after the Chief Justice's Pension Act 1918, Sir Edmund Barton died, having been in ill health for some time. He had been a Justice of the Court for 16 years, and, throughout, serving without the prospect of a pension. (Richard O'Connor, the other original appointment to the Court, had died in 1912, having likewise served 8 years). The remaining five Justices of 1918 had either been appointed in 1912 or in 1913; and all then taking the position without there being any prospect of a pension. Indeed, during debate on the Chief Justice's Pension Act 1918, mention was made of the fact that, when, in 1903, the First Parliament had been setting the remuneration to be paid to the Justices of the Court by the Judiciary Act, it had been emphasised that it was setting this at a rate commensurately higher than it otherwise might have been on the basis that no pension was being paid - or was thereafter to be paid.

[57] The wording of the entitlement actually excludes members from travelling at government expense on "party business". However, it goes on to say that "party business" which consists of:
"meetings of a parliamentary political party, or of its executive, or of its committees, and the national conference of a political party of which he or she is a member"
is not excluded from the entitlement. It is therefore not easy to see how such an exclusion would, in effect, be an exclusion at all.

The granting of a entitlement coupled with a seeming constraint, or vice versa, is not infrequently to be met with in the text of the Determination.

[58] "nominee" means a parent, offspring over the age of 16, a brother or sister, or, "in special circumstances" one other person from time-to-time nominated by the member and approved at the discretion of the Minister: Clause 2.7. Each of the children of a member who is a "dependent child" has his or her own, separate travel entitlements. These are referred to later. (A "dependent child" is one who is under 16; or a person who is under 25 and substantially dependent on the member.)

[59] None of them need go to Canberra under this entitlement. They may convert any of the trips to intrastate travel instead: Clause 2.14.

[60] This Determination does not have a requirement that the member has been invited; or that the member go to the function. An invitation to the member's spouse or nominee is seemingly sufficient. No limit is placed on the number or such functions. Nor, in theory, are these functions limited to those of the Commonwealth government; and can, apparently, be anywhere in Australia.

[61] Determination 24 of 1990 first made provision for this. A deduction of $6,000 a year was required, from the electorate allowance. According to the citation below, this is now between $500 and $700 a year; being the same as for the Senior Executive Service of the Public Service. (Remuneration of Members of the Parliament of Australia; op. cit.)

[62] Sub-clauses 5.5 and 5.6 are mentioned because (apart from the $500-$700 contribution for use of a car referred to in Clause 5.1) they are the only provisions of the Determination where the "electorate allowance" can be reduced by payment of a member's electorate expenses. (Should this reduction be relatively large, it might justify an actual electorate allowance for such members - if only for payment of this particular expense.)

[63] The author does not know what these are (apart from the contribution of $500-$700 a year mentioned in the earlier footnote).

[64] "Charter transport" includes aircraft and such other reasonable modes of transport within and for the service of the electorate: clause 6.1.

[65] These entitlements are additional to the travel entitlements set out in Clause 2.1.