The Chief Electoral Officer has forwarded the following memorandum for advice:

The only direction issued by the Chief Electoral Officer under the provisions of regulation 21 has reference to the amount of the penalty to be imposed for a first offence, viz. 2s 6d. The maximum penalty for a first offence under section 42 of the Commonwealth Electoral Act 1918-1919 is 10s.

It seems an extraordinary act on the part of a Western Australian official to instruct a court which has been called upon to act in its Commonwealth jurisdiction as to the constitutionality of Commonwealth legislation.

No question has been raised in any other State as to the legality of the procedure prescribed by the Regulations in regard to the imposition of penalties by the Commonwealth Electoral Officer, or to the recovery of the penalties by process of the court of summary jurisdiction where that course is necessary.

The reasons for the refusal of the Clerk of Courts, Geraldton, to register the order [made under regulation 21 of the Electoral and Referendum Regulations] are supplied by the Under Secretary for Law, Perth, and are:

1. that the Act does not authorise the Governor-General to make regulations empowering the Commonwealth Electoral Officer to impose penalties for breaches of the law;
2. that the power purported to be exercised by the Electoral Officer is judicial in its nature, and should by virtue of sections 71 and 72 of the Constitution have been conferred upon a court.

Section 219 of the Act authorises the Governor-General to make regulations prescribing inter alia the procedure in relation to the imposition and recovery of penalties for offences against the compulsory enrolment provisions of the Act.

This provision is in my opinion adequate authority for the making of regulations 17 to 23 of the Electoral and Referendum Regulations.

Those regulations provide means whereby contraventions of the enrolment provisions of the Act may be dealt with by the Commonwealth Electoral Officer for the State in which the contravention is committed.

A condition precedent to the exercise of this power by a Commonwealth Electoral Officer is the written consent of the offender. Such consent was duly given in the case under consideration.

In cases where consent is not given the matter is dealt with by a court of summary jurisdiction.

Where an offender consents to his case being dealt with by the Commonwealth Electoral Officer the consequent action cannot in my opinion be described as an exercise of judicial power within the meaning of Chapter III of the Constitution.

It is suggested that this is a case in which action should be taken to enforce the observance of the laws of the Commonwealth.

[Vol. 18, p. 236]