Opinion Number. 460



Key Legislation

COMMONWEALTH ELECTORAL ACT 1902-1911, ss. 21. 26

The Secretary, Department of Home Affairs

The following memorandum by the Chief Electoral Officer has been submitted by the Secretary to the Department of Home Affairs to me for advice:

Section 21 of the Commonwealth Electoral Act reads as follows:

if both Houses of Parliament pass a resolution approving of any proposed distri-bution the Governor-General may by proclamation declare the names and boundaries of the Divisions, and such Divisions shall until altered be the Elec-toral Divisions for the State in which they are situated.

Provided that, until the then next ensuing dissolution or expiration of the House of Representatives, the redistribution shall not affect the election of a new member to fill a vacancy happening in the House of Representatives; but for the purposes of any such election the Electoral Divisions as theretofore existing, and the Rolls in respect of those Divisions, shall continue to have full force and effect, notwithstanding that new Rolls for the new Divisions have been prepared.'

It is probable that a considerable interval will occur between the adoption by Parlia-ment of the proposals of the Commissioners and the consequent proclamation of the new Divisions, and the next general election.

By-elections may become necessary before the next dissolution of Parliament.

Legal advice is desired-

  1. as to whether in the event of a by-election becoming necessary after action has been taken under the provisions of section 26 of the Act and electors have be-come changed from the old to the new Divisions, the old Rolls as existing at the time of the change should be used for the by-election; or
  2. whether the old Rolls (as well as the Rolls for the new Divisions) are required to be maintained and kept up to date in respect of additions and alterations until a general election brings the new Divisions into action.

If the law contemplates the course indicated in (b), may a new name which has been added to the Rolls for a new Division as the result of a claim, be placed by direction of the Divisional Returning Officer on the Roll for that part of the old Division for which the claimant would have been enrolled had there been no redistribution; and may a name which has been removed under the law from the Roll for a new Division be also removed by direction from the Roll for the old Division if the ground of removal would have been sufficient in the absence of a redistribution.

If in the opinion of the Attorney-General's Department the Roll for a by-election held prior to the next dissolution of Parliament should be brought up to date for the by-election may this action be deferred until the occasion arises, i.e. up to the date of the issue of the writ, with a view to avoiding the great expense and labour involved in maintaining Rolls for old Divisions throughout the Commonwealth to meet a possible contingency which may not arise and, if it did arise, might affect one Division only.

I think that the effect of section 21 is to keep in existence, for the purposes of by-elections, the Divisions as existing at the time when the redistribution was proclaimed and the Rolls for those Divisions. It may happen in a redistribution that a Division is blotted out entirely as regards the next general election, but for the purposes of any by-election, the Division, and the Roll for the Division, must necessarily be continued in existence.

As regards question (a), I am of opinion that the answer is yes.

As regards question (b), I am of opinion that the answer is yes, as regards cases in which the new Divisions and the old Divisions differ, but no as regards cases in which the new Divisions and the old Divisions are identical.

As regards the two incidental questions arising out of the answer to question (b), I am of opinion that the Divisional Returning Officer and the Commonwealth Electoral Officer for the State have the same powers with respect to the old Rolls as they have with respect to the new Rolls.

It appears to me that, after a redistribution has been proclaimed, applications for enrolment, transfer, or change will probably only have relation to the new Rolls, and that the only practicable method of keeping up the old Rolls will be by the exercise of the powers of the Divisional Returning Officer and the Commonwealth Electoral Officer for the State.

But, of course, if any application for enrolment, transfer, orchange clearly has re-lation to the old Rolls, it should be given effect to.

Except as regards the case of applications for enrolment or change clearly having relation to the old Rolls, I see no reason why action should not be deferred until the necessity for it arises, viz. until a by-election becomes a certainty.

[Vol. 10, p. 234]