timing of resignation of senator in order to stand for election to house of representatives: resignation prior to declaration as to qualification for election and nomination: mode of resignation and delivery to president
Commonwealth Electoral Act 1918 ss 68, 72, 73: Constitution ss 19, 43
I have received from Senator Badman(1) a letter in which he seeks advice as to the latest date upon which he may resign from the Senate before contesting an election for the House of Representatives.
A copy of Senator Badman’s letter is attached.
I have advised him that the matter is one within your province as the Minister administering the Electoral Act but I undertook to discuss the question with you with a view to your replying to him direct.
The following are the sections of the Constitution which affect the question:
43. A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House.
19. A senator may, by writing addressed to the President, or to the Governor-General if there is no President or if the President is absent from the Commonwealth, resign his place, which thereupon shall become vacant.
Sections 68, 72 and 73 of the Commonwealth Electoral Act 1918–1934 must also be considered. These sections are as follows:
68. No person shall be capable of being elected as a Senator or a Member of the House of Representatives unless duly nominated.
- Nominations may be made at any time after the issue of the writ and before the hour of nomination.
73. No nomination shall be valid unless–
- 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;
- the nomination paper is received after the issue of the writ and before the hour of nomination;
It is clear that Senator Badman must, prior to the hour of nomination, be in a position to declare that he is qualified under the Constitution and the laws of the Commonwealth to be elected as a Member of the House of Representatives.
It follows that when he makes that declaration he must have resigned his place as a Senator.
His resignation, in order to be effective, should be in writing addressed to the President and should have been delivered to the President.
A purported resignation by telegram is not in order. It will be seen, therefore, that Senator Badman can determine the date of his resignation as the latest date on which it can be effected in order to enable him to lodge a nomination, supported by the required declaration, before the hour of nomination.
[Vol. 30, p. 284]
(1) Albert Oliver Badman (1885–1977). Senator for South Australia (Country Party) 1932–1937. Federal Member for Grey (Country Party, United Australia Party from 1940) 1937–1943.