Opinion Number. 1452

Subject

Elections elections: polling adjourned due to flooding: whether electors may vote as absent voters at adjourned polling

Key Legislation

Commonwealth Electoral Act 1918 ss 113, 121, 126, 127: Electoral and Referendum Regulations 1928 reg 46

Date
Client
The Chief Electoral Officer

The Chief Electoral Officer has forwarded to me the following message for advice:

Polling adjourned at eight polling places pursuant section 126 Commonwealth Electoral Act owing floods. Pleased receive urgent advice whether electors may vote as absent voters at adjourned polling. Please refer section 113 of Act, Electoral Regulation 46 and section 127 of Act also to case Mirach versus Phillips.

Section 113 of the Commonwealth Electoral Act 1918–1928 provides that on polling day an elector shall be entitled to vote at any prescribed polling place for the subdivision for which he is enrolled or he shall be permitted to vote at any other polling place within the State for which he is enrolled at which a polling booth is open, under and subject to the regulations relating to absent voting.

Regulation 46 of the Electoral and Referendum Regulations declares that the privilege of voting at a polling place as an absent voter is dependent upon the arrangements of the polling place at which the elector claims to vote as an absent voter, being such as to enable the vote to be recorded.

In the cases under consideration the polling at certain polling places has been adjourned in pursuance of section 126 of the Act.

Section 127 of the Act provides that where the polling is adjourned at any polling place those electors only who are enrolled for the subdivision for which the polling place is prescribed; or who are by virtue of section 121 of the Act entitled to vote as electors of that subdivision, and who have not already voted, shall be entitled to vote at the adjourned polling at the polling place.

In the case of Mirach v. Phillips 1 C.L.R. 132, it was decided that an elector who is absent from the polling place for which he is enrolled might vote as an absent voter at a polling place at which an adjourned poll was taken.

There are material differences between the law as it stood at the time that decision was given and the present law. In the judgment of the court the following appears:

The test, therefore, as to these persons is, whether on the original polling day they were absent from the polling place for which they were enrolled. If they were, they were and remained entitled to vote at another place. There are no words to take that right away from them.(1)

The right conferred by section 113 is one which may be exercised only on polling day. The date of the adjourned polling is not a polling day within the meaning of section 113.

Further, the right is made subject to the regulations relating to absent voting. Those regulations (Regulation 46) provide that the right shall only be exercisable where arrangements are made for the taking of absent votes. If no such arrangement is made apparently the right to vote as an absent voter cannot be exercised.

An over-riding objection to allowing absent voters to vote at an adjourned poll appears, however, in section 127 which specifically limits the electors who may vote at an adjourned polling to those of certain classes. The limitation in my opinion over-rides the generality of the language of section 113 and I do not think it is competent for the Chief Electoral Officer to make arrangements at an adjourned poll for the taking of votes of electors other than those specified in section 127.

[Vol. 24, p. 317]

(1) Hirsch v Phillips (1904) 1 CLR 132 at 140, Griffith CJ.