It appears that Mr W. H. L. Smith, a candidate nominated for the Division of Denison, Tasmania, was at the time of nomination and up to polling day an officer in the Tasmanian Railway Service, but was on leave of absence without pay for two months from 4 March.

Mr Smith received the greatest number of votes at the election, and was returned as elected.

The Secretary, Department of Home Affairs forwards the papers for advice-

1. as to Mr Smith's eligibility for nomination in view of the provisions of section 44 of the Constitution and section 95 of the Commonwealth Electoral Act 1902-1909; and
2. as to the responsibility of the Divisional Returning Officer in relation to the receipt of nominations, having regard to the fact that he cannot constitute himself a Court for the purpose of enquiring into and determining the eligibility of candidates.

Question (a) can only arise now upon a petition to the Court of Disputed Returns, and can only be decided by that Court. No useful purpose can be served by my advising upon it.

As to question (b), it is the duty of a Returning Officer to accept all valid nominations made to him. If he wrongly rejects any nomination, he does so at his own risk; and it would not be prudent on the part of a Returning Officer to reject a nomination on the ground of the ineligibility of the candidate, unless the ineligibility was beyond all doubt.

[Vol. 7, p. 442]

(1)* See also Opinion No. 505.