Opinion Number. 283

Subject

SENATE ELECTIONS WHETHER WRIT EXHAUSTED ON RETURN : WHETHER COMMONWEALTH HAS POWER TO ACT UPON PARTIAL FAILURE OF ELECTION . WHETHER VOIDING OF ELECTION OF SENATOR GROUNDS WRIT FOR SUPPLEMENTARY ELECTION

Key Legislation

CONSTITUTION, s. 13 : COMMONWEALTH ELECTORAL ACTS 1902-1906. ss. 108, 205

Date
Client
The Minister for Home Affairs

Mr Vardon, whose election to the Senate was declared void by the Court of Disputed Returns (see my opinion of 8 June 1907(1)) has sent a communication to the Commonwealth Electoral Officer for South Australia requiring him to hold a new election under section 205, paragraph (iii), of the Commonwealth Electoral Acts 1902-1906, 'to complete compliance with the original writ rendered incomplete by the judgment of the Court of Disputed Returns'.

The Commonwealth Electoral Officer has been instructed to formally acknowledge the receipt of Mr Vardon's communication.

The Minister for Home Affairs asks to be advised generally as to the action to be taken by his Department.

In my opinion, the Department of Home Affairs can take no action upon the original writ, as required by Mr Vardon.

The writ referred to was in the Form G of the Schedule to the Electoral Acts. It was issued by the Governor of the State of South Australia, and commanded the Commonwealth Electoral Officer for the State of South Australia to cause election to be made of three senators for the State of South Australia to serve in the Senate from and after the 1st day of January 1907. It appointed the 17th day of November 1906 at 12 noon, to be the day and time before which nominations of senators for the election were to be made; it appointed the 12th day of December 1906 to be the day on which the poll was to be taken in event of the election being contested; and it commanded the Commonwealth Electoral Officer to endorse on the writ the names of the senators elected and to return it so endorsed to the Governor of South Australia on or before the 7th day of January 1907.

By proclamation, dated 29 December 1906, under section 168 of the Electoral Acts, the Governor of South Australia extended the time for returning the writ to the 7th day of February 1907.

In pursuance of the writ, nominations were duly received, a poll was held, three candidates (Sir Josiah Symon, Mr Russell, and Mr Vardon) were declared to be elected, their names were endorsed on the writ, and on 8 January 1907 the writ was returned to the Governor.

On 31 May 1907 the Court of Disputed Returns declared the election to be absolutely void in respect of the return of Mr Vardon.

I have already advised that a new election at the polls could not now be held under section 13 of the Constitution; but it is now suggested by Mr Vardon that such an election should be held under the 'original' writ.

In my opinion, that is impossible. The 'original' writ is exhausted. The days of nomination, polling, and return have expired; the poll has been held, and the writ returned.

It may be that Mr Vardon's request is intended to mean, or include, a request for the issue of a new writ for a 'supplementary election' under section 108 of the Electoral Acts, on the ground that the election has 'partially failed'. That section declares that an election shall be deemed to have partially failed whenever one or more candidates is returned as elected, but not the full number required to be elected. That provision is in my opinion quite inapplicable as in this case the full number of candidates were 'returned as elected'. But in any case it is the Governor of the State who issues a writ, and the Department of Home Affairs can take no action in the matter.

[Vol. 6, p. 97]

(1) Opinion No. 281.