Opinion Number. 247

Subject

HOUSE OF REPRESENTATIVES ELECTIONS WHETHER PROPOSALS FOR DISTRIBUTION TABLED BUT NOT ADOPTED MAY BE REVIVED : LEGALITY OF ALTERATION OF NUMBER OF MEMBERS BY EXECUTIVE AUTHORITY

Key Legislation

COMMONWEALTH ELECTORAL ACTS 1902-1905, s. 21 : REPRESENTATION ACT 1905

Date
Client
The Minister for Home Affairs

The Minister for Home Affairs asks to be advised on the questions raised in the following minute by the Chief Electoral Officer:

In August last the following question was submitted for the opinion of the Attorney-General:

'If the report of a Commissioner, under Part III of the Electoral Act, be laid upon the table under section 20 and be neither affirmed or rejected does the report lapse?' Mr Isaacs advised as follows in regard to the matter(1)

'Until such Parliamentary action as is mentioned in section 21 of the Commonwealth Electoral Act 1902 is taken, the proposed distribution remains ineffective; it does not lapse in the sense of becoming a nullity and might at any time as far as legality is concerned be made operative by resolution of both Houses. But from the nature of the case it is intended that if approved it should be approved speedily because circumstances of population, etc. are always in process of change.'

I shall be glad to be advised whether the reports and maps showing the proposed re-distribution of the States of New South Wales, Victoria, Queensland and Western Australia, as proposed by the respective Commissioners in 1905, which were duly laid on the table of both Houses of Parliament, but were neither approved nor disapproved, may be revived, having regard to the following conditions:

  1. the Commissions issued to the Commissioners who made the distribution in question have been withdrawn by action of the Governor-General in Council;
  2. fresh Commissions have been issued;
  3. complete action has been taken in respect to the provisions of the Representation Act 1905;
  4. the proceedings outlined in the Commonwealth Electoral Acts 1902-1905 have been commenced de novo, i.e. fresh distribution has been proposed in respect to the States named, and reports and maps of the Commissioners have been laid on the table of both Houses of Parliament.

The material facts appear to be that since the old proposals were laid before Parliament:

  1. the Electoral Act has in some respects been amended as regards redistribution;
  2. the Representation Act 1905 has been passed;
  3. a prorogation has intervened;
  4. under the Representation Act, quotas have been ascertained and certificates given;
  5. the old Commissions have been revoked;
  6. new Commissioners have been appointed, and have proposed distributions which have been laid before Parliament.

I am unable to advise that any of these circumstances, or all of them taken together, make it impossible, as a matter of law, for the proceedings on the old distribution to be revived.

But I think that for all practical purposes the old proposals may, under all the circumstances, be taken to be superseded by the new.

And in view of the facts that in two States the old distributions were based on alterations, prescribed by mere executive authority, in the number of members to be elected-that the legality of that alteration was, to say the least, open to question-and that Parliament has since provided a legal basis for reapportionment of members, and the new proposals are founded upon an apportionment made under that Act-the revival of the old proposals would be contrary to the declared intention of Parliament, and should not be proposed.

[Vol. 5, p. 275]

(1) Opinion No. 221.