Opinion Number. 297

Subject

SENATE ELECTIONS ROLE OF STATE GOVERNOR IN ISSUING WRIT

Key Legislation

CONSTITUTION, s. 12

Date
Client
The Secretary, Department of External Affairs:

Under the Constitution, section 12, the Governor of a State is empowered to cause writs to be issued for the election of senators for the State.

The High Court in the case of R. v. Governor of South Australia(1) decided that a mandamus would not lie to compel the Governor of a State to do an act in his capacity as Governor, and refused to issue a mandamus to compel him to issue a writ under the section referred to.

The language of the judgment shows that in the opinion of the Court the Governor of a State in the exercise of the powers conferred upon him by section 12 of the Constitution is acting as the Constitutional Head of the State and would act or refrain TrOfh acting on the advice of the Executive Council of the State.

Under a State Act, The Election of Senators Act 1903, the Governor of South Australia acting with the advice of the Executive Council of the State has already issued a proclamation fixing times and places for the election of one senator and stating that a writ shall be issued on 13 January 1908.

I think that in view of the judgment referred to, the issue and form of the writ is a matter for the Governor of the State acting with the advice of his responsible Ministers.

Mr Bavin(2) concurs in this view.

[Vol. 6, p. 225]

(1) 4C.L.R.1497.

(2) Thomas Rainsford Bavin, barrister-at-law, junior counsel for the Commonwealth of Australia in R. v.Governor of South Australia.