Opinion Number. 1505

Subject

Elections resignation of senator: method of filling vacancy: disputed election of senator by state houses of parliament: procedure for settlement of issue by court of disputed returns: inappropriateness of advising chief electoral officer

Key Legislation

SENATE ELECTIONS ACT 1903 s 9(1): Commonwealth Electoral Act 1918 ss 95, 183, 184, 185, 189, 195: CONSTITUTION ss 15, 44

Date
Client
The Chief Electoral Officer

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

Senate casual vacancy – Resignation of Senator Duncan.

Submitted for favor of advice:

A question has been raised as to whether the short casual vacancy in the Senate, arising out of the resignation of Senator Duncan (New South Wales) should be filled by the Houses of Parliament of the State of New South Wales (section 15 of the Constitution) or by the first candidate, not being a Senator candidate who was elected at the General Elections held on 19.12.31 to fill a periodical vacancy at the said Elections–(section 9(1) of the Senate Elections Act 1903–1922).

It is understood that the resignation of Senator Duncan was dated 1st December, 1931; that it reached the hands of the President of the Senate on 2nd December, 1931, and that the Governor of the State was notified by telegraph on December 3rd of the resignation with confirmation by letter of the same date: that the election on December 23rd by the State Houses of Mr. Mooney was certified by the State Governor to the Governor-General on December 28th, 1931, the certificate being received by the President of the Senate on January 5th 1932. These dates may be confirmed, if necessary, by reference to the Clerk of the Senate.

In the meantime, i.e. on November 28th 1931, the Governor of the State of New South Wales had issued a Writ for the election of three Senators to serve in the Parliament of the Commonwealth from and after July 1st 1932. The dates for the election were the same as those for the House of Representatives Elections, viz.

Issue of Writs–November 28th 1931.

Nominations–December 5th 1931.

Polling Day–December 19th 1931.

Return of Writ–On or before 30th January 1932.

In due course the Writ was returned to the State Governor endorsed with a certificate and return that Messrs. Cox, Greene, and Hardy had been duly elected in pursuance of the Writ (copy of Writ herewith).

Section 15 of the Constitution requires that in the event of the place of a Senator becoming vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen shall, inter alia, choose a person to hold the place until the expiration of the term or until the election of a successor, whichever first happens.

It is suggested for consideration that the election of a successor at the next General Elections is contingent upon the fulfilment of this requirement of the Constitution which clearly could not be observed in time for the purposes of the General Elections then in progress. A further suggestion is that the ‘ next General Election’ (section 15 of the Constitution) did not apply to the Election then in progress in pursuance of the Writs (Senate and House of Representatives) issued on November 28th 1931, or otherwise expressed, that ‘Election’ under the Constitution includes the whole proceeding by which the people choose representatives, from the issue of the Writ until the full number are validly elected–not merely the day of polling.

It is assumed any action to dispute the Election of Mr. Mooney would lie with a candidate or a person qualified to vote at the Election (section 185 of the Electoral Act) within the prescribed time. The Writ was returned to the State Governor on 13th January, 1932.

Section 183 of the Commonwealth Electoral Act 1918–1929 provides that:

    1. The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise.
    2. The choice of a person to hold the place of a Senator by the Houses of Parliament of a State or the appointment of a person to hold the place of a Senator by the Governor of a State under section fifteen of the Constitution shall be deemed to be an election within the meaning of this section.

Section 184 provides inter alia that the High Court shall be the Court of Disputed Returns, and shall have jurisdiction either to try the petition or to refer it for trial to the Supreme Court of the State in which the election was held or return made.

The jurisdiction of the Court may be exercised by a single Justice or Judge.

Section 195 provides that all decisions of the Court shall be final and conclusive and without appeal. and shall not be questioned in any way.

Section 185 specifies the requisites of a petition disputing an election or return. These include the following:

The petition shall

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote thereat; and

(e) be filed in the Principal Registry of the High Court or in the District Registry of that Court in the capital city of the State in which the election was held within forty days after the return of the Writ.

Among the powers conferred on the Court by section 189 are the following:

(iv) to declare that any person who was returned as elected was not duly elected;

(v) to declare any candidate duly elected who was not returned as elected; and

(vi) to declare any election absolutely void.

In 1910, after the return of the writs for the House of Representatives elections, this Department was asked for advice as to the eligibility for nomination of one candidate who at the time of nomination and polling was an officer of the Railway Service of a State, but was on leave of absence without pay.

My predecessor advised as follows:

Question (a)–i.e., as to the candidate’s eligibility for nomination in view of the provisions of section 44 of the Constitution and section 95 of the Commonwealth Electoral Act 1902–1909–can only arise now upon a petition to the Court of Disputed Returns, and can only be decided by that Court. No useful purpose can be served by my advising upon it.

In my opinion, the principle upon which that advice was based is applicable equally to questions concerning the validity of the choice of a person to hold the place of a Senator by the Houses of Parliament of a State acting, or purporting to act, under section 15 of the Constitution.

I think, therefore, that is undesirable that I should advise upon it.

[Vol. 25, p. 533]