Opinion Number. 483



Key Legislation


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:

Submitted for the Minister's approval that the Attorney-General's Department be asked to advise in relation to the following matters.

In each of the States, except New South Wales, there is a varying number of electors who have failed to return Electoral Claim Cards left at their residences by the Police or sent to them by the Registrars, and whose names have been included in the new Rolls pre-pared under the accompanying proclamations. In addition to action taken by the Police and the Registrars in endeavouring to obtain cards from these persons, the Com-monwealth Electoral Officers have addressed communications to them pointing out the requirements of Regulation 7 A and requesting that the cards be furnished. In certain cases these communications have been returned through the Dead Letter Office, and in other cases they have apparently been delivered but have met with no response.

It is practically impossible to make a personal visit of inquiry in each case owing to the area to be covered, without involving great expenditure and delay; and unless the return of communications through the Dead Letter Office or the neglect of electors to respond can be taken as prima facie evidence of non-residence, the names of the persons concerned must necessarily remain on the Rolls awaiting the receipt of cards, except in a limited number of cases where the Registrar can personally state that the persons concerned have beyond question left the Division.

Having regard to the necessity of securing the cleanest Rolls practicable, I shall be glad of legal advice whether, in the circumstances above-mentioned-

  1. the Returning Officers, or the Registrars acting on information supplied by the Commonwealth Electoral Officers, are entitled to object to the retention on the Rolls of the names of the persons referred to, on the ground of non-residence; and
  2. the Returning Officers are entitled to direct the removal of the names from the Rolls in the event of (1) the cards not being received as a result of the notifica-tions of objection, or (2) no answers being received.

I shall be glad to be further advised whether the Commonwealth Electoral Officer for New South Wales-in which State the Roll is not yet formally notified as having been prepared-is entitled to refuse to include in the new Roll still in course of preparation the names of persons said by the Police to be resident at the time of the canvass, but who have not lodged claims and to whom further communications have been sent with the same re-sult as that above indicated, i.e., where the communications have either been returned through the Dead Letter Office or ignored; and if so, what procedure should be adopted in order to legalise the action of the Commonwealth Electoral Officer.

The removal of names from a Roll and the placing of names on a new Roll involve somewhat different considerations. Where a person's name is on a Roll, prima facie it has a right to be there and it ought only to be removed on clear proof that the right to have it there no longer exists. Where a person's name is not on the Roll, it is his duty (more especially under the system of compulsory enrolment now in force) to send in a claim for enrolment and the officers are under no especial duty to place names on the Roll where claims are not sent in.

In the cases of questions (a) and (b), I am of opinion that both questions should be answered in the negative, because the facts mentioned would not amount to clear proof of any ground on which a name can be removed from a Roll.

As regards the inclusion of names on a new Roll in cases where no claims have been lodged, I am of opinion that the question is more one for the Commonwealth Electoral Officer for the State to decide than a question for a legal opinion. Under the procla-mation the Commonwealth Electoral Officer for the State is empowered (not-withstanding that no claim for enrolment has been received) to include on any new Roll the name of any person if he is satisfied that the name of such person ought to be included on that Roll. I do not think the proclamation imposed any legal duty upon the Officer to place any person on the Roll under this power. But where, by reason of his own knowledge or of information which has come to his hands, the Officer is satisfied that a person is entitled to be enrolled on a Roll and is not enrolled elsewhere he should, I think, exercise his power and cause the person to be enrolled. On the facts mentioned in the memorandum I do not think there would be sufficient to satisfy the Officer that the persons referred to are entitled to be enrolled, but that question is for the Officer and not for me. Probably the best way would be to consider each case and deal with it on its merits, as there might be known circumstances, such as temporary absence, ill-ness, or other like matters, which would differentiate one case from another.

[Vol. 10, p. 482]