The following questions were asked by Mr Thomas Brown in the House of Representatives:

1. Is the Minister aware that Divisional Returning Officers hold appointments and discharge the duties appertaining thereto in Divisions for which they are not qualified electors, and cannot become so qualified by reason of residence in other Divisions.
2. What would be the position of such Divisions in the event of such Divisional Returning Officer being called upon to exercise a casting vote.
3. In view of the specified voting limitations of section 30 of the Commonwealth Constitution, is it possible to arm such officers with the right to exercise more than one vote at a Commonwealth General Election, and, if not, what steps have been taken to ensure the observation of this section under the circumstances indicated.
4. Has legal opinion been taken as to the right of Divisional Returning Officers to exercise more than one vote, or to hold the positions under the conditions set out; and if so, will the Minister have same made available for the information of the House.

The Minister for Home Affairs has submitted the questions to me for an opinion on the points of law raised therein.

The points of law raised in the questions appear to me to be as follows:

1. What is the position of a Divisional Returning Officer, who is not an elector for the Division for which he acts, in the event of his being called upon to give a casting vote in an election of a member for that Division.
2. Would a casting vote given by a Divisional Returning Officer under the circumstances mentioned in point (1) be a valid casting vote.
3. Does section 30 of the Constitution preclude a Divisional Returning Officer from voting more than once at a general election.
4. Can a person who is not an elector for a Division lawfully hold the position of Divisional Returning Officer for that Division.

With regard to point (1), I am clearly of opinion that a Divisional Returning Officer is bound to exercise a casting vote whenever an equality of votes arises at an election for a member for his Division, whether he is an elector for the Division or not. If a Divisional Returning Officer is an elector for his Division he is not entitled to vote as ah elector for that Division at an election therein, and if he did so vote he would be guilty of an offence against the Electoral Act and his vote as an elector would be invalid, as being contrary to law.

As regards point (2), I am clearly of opinion that a casting vote given by a Divisional Returning Officer at an election in his Division would be valid, notwithstanding that he had voted as an elector in that or any other Division. As shown in the previous answer, his vote as an elector in his own Division would be invalid.

As regards point (3), section 30 of the Constitution, which provides that in the choosing of members of the House of Representatives each elector shall vote only once, clearly prevents an elector from voting more than once at an election. But there

appears to be a clear distinction between a vote by an elector and a casting vote by a Divisional Returning Officer, because a vote by an elector is given in exercise of a personal right, whereas the casting vote is given as a matter of official duty. The Constitution contains no specific provision in relation to a casting vote, but, pending the passing of a Commonwealth law, it applied the existing State electoral laws to Federal elections. Some at least of these laws provided for a casting vote by an officer, and under two of them, viz. The Electoral Code 1896 of South Australia and the Electoral Act 1899 of Western Australia, it was not necessary that the officer should be an elector at all. I think therefore that section 30 of the Constitution refers only to the vote of an elector, and has no application to the casting vote of an officer. Further it is difficult to see how the provision could be applied to the casting vote of an officer given as a matter of duty. The right of an elector to vote can only be taken away by a clear provision. Now the Constitution does not purport to take away any right to vote, it only says an elector shall not vote more than once at the same election. The Electoral Act only takes away the right, if any, of a Divisional Returning Officer to vote in his own Division. Therefore the right of a Divisional Returning Officer to vote for any other Division is not taken away; and a vote given by him in pursuance of that right would be good if it complied with the proper formalities. The fact that he had already voted in his private character as an elector could not affect the validity of his casting vote given as a matter of official duty. As I have already advised that the casting vote would be good, it follows in my opinion that both votes would be good. I am of opinion therefore that section 30 of the Constitution does not preclude a Divisional Returning Officer from voting as an elector and from giving a casting vote as an officer.

With regard to point (4), I am of opinion that a person who is not an elector for a Division can lawfully hold the position of Divisional Returning Officer for the Division. No particular qualification for the office is required by the Act, and in the absence of any qualification the Governor-General can appoint any person he thinks fit to the office. If it were a necessary condition that a Divisional Returning Officer should live in his Division, very serious complications might arise. A Divisional Returning Officer is bound so long as he holds office to carry out his duties, and if he fails to do so is guilty of a serious offence for which he is liable to be punished by fine or imprisonment. He cannot escape his obligations by resignation unless the Crown sees fit to accept his resignation. But if his office were conditional on his living in the Division he could, on the eve of an election, escape his obligations by going to live outside the Division. Also if he went to live outside the Division and continued to carry on his duties every act of his as Returning Officer would be void and the fact that the Department knew nothing of the change and believed he was acting legally would make no difference.

[Vol. 7, p. 253]