Minister for Home Affairs asks for my advice on the constitutional questions raised in the following memorandum:

Section 12 of the Constitution Act provides that: 'The Governor of any State may cause writs to be issued for elections of senators for the State . . .'

Hitherto the dates fixed for House of Representatives elections by the Governor-General have been accepted without question by the Governors of the several States as the dates for Senate elections. There is, however, no provision in the Constitution Act under which the Governors of States can4)e required to take a House of Representatives election into consideration when fixing the date of a Senate election, and therefore in the event of a dissolution of the House of Representatives, say in July next, they might, in the exercise of their discretion, decline to issue writs for Senate elections at that time, or possibly might not act in unison.

Section 13 of the Constitution Act as amended in 1906 reads as follows:

As soon as may be after the Senate first meets, and after each first meeting of the Senate following a dissolution thereof, the Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practicable; and the places of the senators of the first class shall become vacant at the expiration of three years, and the places of those of the second class at the expiration of six years, from the beginning of their term of service; and afterwards the places of senators shall become vacant at the expiration of six years from the beginning of their term of service.

The election to fill vacant places shall be made within one year before the places are to become vacant.

For the purposes of this section the term of service of a senator shall be taken to begin on the first day of July following the day of his election, except in the cases of the first election and of the election next after any dissolution of the Senate, when it shall be taken to begin on the first day of July preceding the day of his election.

[Section 3 of the Constitution Alteration (Senate Elections) 1906 reads as follows:]

1. The terms of service of the senators whose places would, but for this Act, become vacant at the expiration of the year One thousand nine hundred and nine are extended until the thirtieth day of June One thousand nine hundred and ten.
2. The terms of service of the senators whose places would, but for this Act, become vacant at the expiration of the year One thousand nine hundred and twelve are extended until the thirtieth day of June One thousand nine hundred and thirteen.

[Section 4 of the Constitution Alteration (Senate Elections) 1906 reads as follows:]

This Act shall not be taken to alter the time of beginning of the term of service of any senator elected in the year One thousand nine hundred and six.

There would seem to be no constitutional reason why a Senate election should not be held in conjunction with a House of Representatives election during July next, but the persons then declared to have been elected would of course not enter upon their term of service until 1 July 1910.

The first question is-Can the Governor of a State be required to take a House of Representatives election into consideration when fixing the date of a Senate election?

I am of opinion that, legally, he cannot be so required. In all cases where a Senate election and a general election for the House of Representatives in the same State can be legally held on the same day, the advantages arising from holding the two elections on the same day are so great that it naturally follows that the same day is adopted for both. The matter is one for arrangement between the Commonwealth Government and the State Governments.

The next question is-Is there any constitutional reason why a Senate election should not be held in conjunction with a House of Representatives election during July next?

Under the Constitution the election of Senators to fill vacant places has to be made within one year before the places are to become vacant. The next vacancies in the Senate arising from effluxion of time will take place on the 1st day of July 1910 (see Act 1907, No. l⁽¹⁾, section 3). The election of Senators to fill the vacancies so arising can therefore take place at any time within one year before 1 July 1910, or in other words at any time after 30 June 1909 and before 1 July 1910.

I am of opinion, therefore, that there is no constitutional reason why a Senate election should not be held in conjunction with a House of Representatives election during July next.

[Vol. 7, p. 111]

(1) Constitution Alteration (Senate Elections) 1906.