Every male subject of Her Majesty of the full age of twenty-one years and absolutely free being natural born or who being a naturalized subject shall have resided in this Colony for five years shall be qualified to be elected a Member of the Assembly for any Electoral District unless disqualified by section seventeen or eighteen of the Constitution Act or unless under section eleven or twelve of this Act he would be disqualified or incapacitated as an Elector.
Any person holding any Office of Profit under the Crown, or having a Pension from the Crown during Pleasure or for Term of Years, shall be incapable of being elected, or of sitting or voting as a Member of the Legislative Assembly, unless he be One of the following official Members of the Government, that is to say, the Colonial Secretary, Colonial Treasurer, Auditor General, Attorney General, and Solicitor General, or One of such additional Officers, not being more than Five, as the Governor, with the advice of the Executive Council, may from Time to Time, by a notice in the Government Gazette, declare capable of being elected a Member of the said Assembly.
Dean had been born in the United States of America and his naturalisation in South Australia had previously been held to be invalid as based on forged documents.
In the committee Windeyer moved that the election of Dean was void because he was an alien and the seat should be awarded to Smith, however this was defeated by 4 votes to 3.
The committee then resolved, by 6 to 1,[b] that the seat be declared vacant because Dean held an office of profit under the crown at the time of his nomination.