Opinion No. 165
WHETHER COMMONWEALTH HAS POWER TO RESTRICT COMMONWEALTH ELECTORAL OFFICER TO CASTING VOTE
CONSTITUTION, ss. 8, 41 . COMMONWEALTH ELECTORAL ACT 1902, ss. 161. 174
12 December 1903
The Secretary, Department of Home Affairs
The Secretary, Department of Home Affairs:
Mr F. L. Outtrim, the Commonwealth Electoral Officer for the State of Victoria, has written to the Chief Electoral Officer directing his attention to section 161 of the Commonwealth Electoral Act 1902, which purports to prevent him, as the Commonwealth Electoral Officer for the State, from voting at the election for the Senate except in the case of an equality of votes.
He contends that this provision, as it limits his right of voting to a most unlikely contingency, appears to be in direct violation of section 41 of the Constitution; and he intimates that he intends as an elector of the Legislative Assembly of Victoria to apply for a ballot-paper for the Senate in the ordinary way on the day of election and to exercise his right to vote.
The Secretary, Department of Home Affairs asks for my advice on the question raised.
In my opinion section 161 of the Electoral Act is not in conflict with section 41 of the Constitution.
Attention may be called to section 8 of the Constitution, which provides that 'in the choosing of senators each elector shall vote only once'. Mr Outtrim does not say whether, in the event of an equality, he would claim his casting vote in addition to the original vote.
Section 161 of the Electoral Act does not prevent Mr Outtrim, as an elector of the State of Victoria, from voting at the election; it provides that the Commonwealth Electoral Officer shall have a vote in the only case in which his vote can be of any value. In any other case his vote would be ineffective altogether, unless it operated to create a tie, and so render the whole election ineffective.
Mr Outtrim voluntarily accepted the position of Commonwealth Electoral Officer, a necessary incident of which office is the incapacity to vote except by way of a casting vote to decide the election in case of a tie. He was free to decline the office and exercise his vote; having accepted the office, he is bound by the condition only to exercise his vote for the purpose of deciding the election.
In my opinion, if Mr Outtrim, whilst holding the position of Commonwealth Electoral Officer, for the State, votes at the election in violation of section 161 of the Act, he will be guilty of 'Breach or neglect of official duty' under sub-section (iii) of section 174 of the Act, and will be liable to a penalty not exceeding £200, or to imprisonment not exceeding one year.
[Vol. 4, p. 87]