Opinion Number. 168

Subject

PARLIAMENT EXTENSION OF TIME FOR RETURN OF WRITS . WHETHER PERIOD FOR SUMMONING PARLIAMENT RUNS FROM ORIGINAL RETURN DATE OR EXTENDED DATE

Key Legislation

CONSTITUTION, s. 5 : COMMONWEALTH ELECTORAL ACT 1902, ss. 86, 89, 91, 168

Date
Client
The Prime Minister

The Prime Minister:

The Commonwealth Electoral Act 1902 gives power to extend the time named, in writs for the election of members of the House of Representatives, for the return of the writs.

The Prime Minister asks to be advised whether, if that power is exercised, the thirty days mentioned in section 5 of the Constitution as the time within which Parliament must be summoned to meet run from the expiry of the extended time or from the date originally fixed.

Section 5 of the Constitution provides that:

After any general election the Parliament shall be summoned to meet not later than thirty days after the day appointed for the return of the writs.

This means the writs for the House of Representatives (Quick & Garran, p. 410), and evidently contemplates that the same day will be appointed for the return of all the writs.

The Constitution does not fix any time within which the writs must be made returnable.

The Commonwealth Electoral Act 1902 contains the following provisions:

Section 86. Writs for the election of . . . Members of the House of Representatives . . . shall fix the dates for . . . the return of the writ.

Section 89. The date fixed for the return of the writ shall not be more than sixty days after the issue of the writ.

Section 91. In the case of a general election for the House of Representatives . . . all writs shall be made returnable on the same day.

Section 168. Within twenty days . . . after the day appointed for any election the person causing the writ to be issued may provide for extending the time ... for returning the writ, or meeting any difficulty which might otherwise interfere with the due course of the election; and any provision so made shall be valid and sufficient . . .

It therefore appears that the day appointed for the return of the writs for the House of Representatives is fixed under the Electoral Act, and may under that Act be extended.

In my opinion, if the time for returning all the writs for a general election of members of the House of Representatives is extended, under section 168, to a later date, the thirty days mentioned in section 5 of the Constitution run from that later date, and not from the original date of return mentioned in the writ itself.

[Vol. 4, p. 126]