The Chief Electoral Officer has forwarded for advice the following memorandum from the Commonwealth Electoral Officer for the State of Western Australia.

There have been numerous inquiries in regard to the precise effect upon State members of the amendment of section 70 of the Commonwealth Electoral Act.

In view of opinions on pages 42 and 43 of the Opinions Book⁽¹⁾, I shall be glad to know if I, or a Divisional Returning Officer of this State, would be justified in accepting the nomination of a candidate who is known to have been a member of the State legislature and resigned fourteen days prior to the day of nomination, if that candidate, after having been shown the amendment to section 70 still persists in tendering his nomination, which in other respects may be in order.

It seems to me that in the absence of the actual proof as mentioned in Opinions Nos 42 and 43 the question of acceptance or rejection of nomination may be in doubt.

Section 2 of the Electoral Act Amendment Act 1921 of the State of Western Australia is as follows:

1. Notwithstanding anything to the contrary in the principal Act contained, whenever any vacancy occurs in the Council or the Assembly by reason of any member resigning his seat for the purpose of seeking election for the Parliament of the Commonwealth of Australia, if such member tenders his resignation within twenty-one days prior to the date of the issue of the writ for the said election, and notifies in writing to the President or the Speaker his intention to seek such election, and his intention in the event of his failing to secure such election to become again a candidate for the vacancy aforesaid, then the issue of the writ for the election of a member to fill such vacancy shall be delayed until the result of such Commonwealth election shall have been first officially declared by the returning officer.
2. If the member so resigning his seat and notifying the President or the Speaker as aforesaid-
   
   1. fails to secure election for the Parliament of the Commonwealth; and
   2. is nominated as a candidate for the vacancy occurring through his own resignation as aforesaid,

   the returning officer to whom the writ is directed shall forthwith, without holding a poll, publicly declare him to be duly elected, and the writ shall be so returned notwithstanding anything to the contrary contained in the principal Act.

Section 70 of the Commonwealth Electoral Act 1918-1922 is as follows: No person who-

1. is at the date of nomination a Member of the Parliament of a State; or
2. was at any time within fourteen days prior to the date of nomination a member of the Parliament of a State; or
3. has resigned from the Parliament of a State and has the right, under the law of the State, if not elected to the Parliament of the Commonwealth, to be re-elected to the Parliament of the State without the holding of a poll,shall be capable of being nominated as a Senator, or as a Member of the House of Representatives.

I understand that one member of the Parliament of the State of Western Australia resigned from the State Parliament within twenty-one days before the issue of the writ for the Commonwealth elections, with a view to contesting a seat thereat.

Under the Western Australian Act a person who tenders his resignation from the Parliament of the State within twenty-one days before the issue of the writ for the election, and notifies in writing to the President or Speaker his intention to seek election to the Commonwealth Parliament, and his intention, if he fails to secure such election, to become again a candidate for the vacancy caused by his resignation from the State Parliament, has, within the meaning of section 70 of the Commonwealth Electoral Act, the right, under the law of the State, if not elected to the Parliament of the Commonwealth, to be re-elected to the Parliament of the State without the holding of a poll.

If, however, though the person tenders his resignation from the State Parliament, he does not give to the President or Speaker of the State Parliament the notification provided for in section 2(1) of the Western Australian Act, he has not, in my opinion, the right to re-election to the Parliament of the State without the holding of a poll.

The Western Australian Act does not, in my opinion, require that the notification to the President or Speaker be given at the same time as the resignation is tendered, or that it be given within the twenty-one days before the nomination day for the Commonwealth election. A notification after the nomination day would appear to be within the section. In such an event, the person would be eligible, on nomination day to nominate for the Commonwealth election, though he would not have been so eligible had he given the notification before the hour of nomination.

As regards the duty of the Commonwealth Electoral officer, he should, in my opinion, endeavour to ascertain whether the nomination is valid or not, in other words, whether at the hour of nomination a notification has been given under the State Act by the candidate. He has no power to compel answers to his questions, and would not be justified in rejecting any nomination in the absence of information showing that the candidate had a right, under the State Act, to re-election to the State Parliament without the holding of a poll.

[Vol. 19, p. 105]

(1) Presumably a collection of opinions kept by the Chief Electoral Officer