Opinion Number. 1407

Subject

ELECTIONS NOMINATION FOR ELECTION: QUALIFICation: officer of the Commonwealth Public Service: REQUIREMENT THAT NOMINEE DECLARE ELIGIBILITY TO HOLD OFFICE IF ELECTED: EFFECT OF FALSE STATEMENT IN DECLARATION: ACCEPTANCE OF NOMINATION: DISQUALIFICATION

Key Legislation

CONSTITUTION s 44: COMMONWEALTH ELECTORAL ACT 1902 s 95: COMMONWEALTH ELECTORAL ACT 1918 ss 69, 73, 170

Date
Client
The Chief Electoral Officer

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

  • Dalley By Election to be held on 26th. February, 1927.
  • Nominations due 17th. February, 1927, at 12 noon.
  • Telephone message from the Commonwealth Electoral Officer for New South Wales, Sydney. 10 a.m. 15th. February, 1927.
  • Mr. D. produced to the Divisional Returning Officer for Dalley a form of nomination duly completed together with his deposit. The Divisional Returning Officer questioned Mr. D. as to whether he was an officer of the Commonwealth Public Service. Upon his reply in the affirmative, the Divisional Returning Officer showed Mr. D. the opinion on page 40 of the Opinion Book, and mentioned section 44, sub-section (4), of the Constitution, and advised Mr. D. to seek advice as to the position.
  • Mr. D. afterwards saw Mr. Allars (the Commonwealth Electoral Officer for New South Wales), and, on his advice, he (D.) saw the Crown Solicitor. Both Mr. Allars and the Crown Solicitor told Mr. D. that under section 44 of the Constitution he was not eligible to be a candidate.
  • Mr. Allars understands that D. afterwards made application to the Deputy Director, Posts and Telegraphs, for leave of absence without pay, and Mr. Allars states he has reason to believe that the application will not be approved.
  • A copy of the Opinion referred to in paragraph 1 is attached.
  • Advice is desired as to whether the Divisional Returning Officer was right in not accepting the nomination of Mr. D.

The opinion referred to is an Opinion given by Mr. Attorney-General Hughes in 1909 in respect of section 95 of the Commonwealth Electoral Act 1902–1905.1 Section 95 provided that a person was not entitled to be nominated for election unless he was qualified under the Constitution to be elected. Mr. Attorney-General Hughes advised that, as section 44 of the Constitution disqualified officers of the Public Service of the Commonwealth from being chosen or sitting as members, a nomination from a public servant could not be received, in view of the provisions of section 95 of the Commonwealth Electoral Act 1902–1905, above referred to.

The Commonwealth Electoral Act 1902–1905 has been repealed, and the provisions relating to nomination have been altered, and in view of the alterations referred to hereunder, the opinion of Mr. Attorney-General Hughes cannot be regarded as applying to nominations under the present law.

The provisions of the Commonwealth Electoral Act 1918–1925 in regard to the matter are as follows:

    1. The qualifications of a member of the House of Representatives shall be as follows:
      1. He must be of the full age of twenty-one years;
      2. He must be a subject of the King, either natural born or for at least five years naturalized under a law of the United Kingdom or of the Commonwealth;
      3. He must have been for three years at least a resident within the limits of the Commonwealth as existing at the time when he is chosen; and
      4. He must be either—
        1. an elector entitled to vote at the election of members of the House of Representatives;
        2. a person qualified to become such elector; or
        3. a person who lives in the Territory for the Seat of Government, and has so lived for a period of one month.
    2. To entitle a person to be nominated as a Senator or a Member of the House of Representatives he must have the qualifications specified in the last preceding sub-section.
  1. No nomination shall be valid unless—
    1. the person nominated consents to act if elected, and declares that he is qualified under the Constitution and the laws of the Commonwealth to be elected as a Senator or a Member of the House of Representatives, as the case may be;
    2. the nomination paper is received after the issue of the writ and before the hour of nomination; and
    3. at the time of the delivery of the nomination paper the person nominated or some person on his behalf deposits with the Commonwealth Electoral Officer or Divisional Returning Officer, as the case requires, the sum of Twenty-five pounds in money or in Australian notes or in a banker’s cheque.

It would appear that if Mr. D. has complied with the requirements of sub-section (1.) of section 69, and has signed the declaration in the form of nomination that he is qualified under the Constitution to be elected, the Divisional Returning Officer cannot refuse to accept the nomination.

In the circumstances, however, I am of opinion that, if Mr. D. made such a declaration, he could be charged under section 170 of the Act with knowingly making a false statement in a declaration, an offence punishable by imprisonment for two years, and, unless he resigned from the Public Service prior to the date of the election, and his resignation were accepted prior to that date, he would be disqualified for election by section 44 of the Constitution.

[Vol. 22, p. 959]