Opinion Number. 271



Key Legislation


The Secretary, Department of Home Affairs

The Secretary, Department of Home Affairs asks to be advised on the question raised in the following memo by the Chief Electoral Officer:

It is highly probable that several candidates who have been nominated for the forthcoming election and whose names will appear upon the ballot-papers will publicly withdraw prior to polling day, and intimate the fact to the Returning Officer concerned.

In view of the fact that the Commonwealth Electoral Act does not provide for the withdrawal of a nomination after the date of nomination, the Returning Officer presumably cannot take any official cognizance of such an intimation and must continue to regard these persons as candidates and retain their names on the ballot-papers.

The British Electoral Act appears to differ essentially from the Commonwealth Act in this matter in that it permits the withdrawal of a nomination up to the date fixed for the election, but in view of the decision in the case of Wilson v. Ingham (1895) 64 L.J.Q.B. 775; 72 L.T. 796, in which it was held that the name of a candidate who had withdrawn after nomination having been printed in the ballot-papers and votes consequently wasted, the election was void, I think it might be well to bring the matter under the notice of the Attorney-General's Department with a view to an opinion being obtained as to whether the interpretation placed upon the Commonwealth Electoral Act in this memorandum is the correct one.

In my opinion, a candidate cannot withdraw from his candidature after the hour of nomination (Electoral Act, section 105A).

There is no substantial difference in this respect between the British Act (The Ballot Act 1872) and the Commonwealth Act. Under the British Act, a candidate for Parliament must be nominated 'during the time appointed for the election', and may withdraw 'during the time appointed for the election, but not afterwards'. The 'time appointed for the election' does not extend to polling day, but ends with what is equivalent to our 'hour of nomination'. If a poll is required, the election is adjourned to a later day.

The case of Wilson v. Ingham, cited above, arose out of an election of urban district councillors; and the facts were that, by the mistake of a clerk, the name of a candidate who had been duly nominated, but who had on the same day, and within the time prescribed, withdrawn his name, was inadvertently printed on the ballot-papers. It was held that the election was void.

[Vol. 5, p. 474]