The Secretary, Department of Home Affairs, forwards for opinion the following memorandum by the Chief Electoral Officer:

Polling places for the purposes of Senate elections are appointed by the State Execu-tive under the provisions of The Election of Senators Act 1903 (Tasmania), which pro-vides that:

'The Governor shall by Proclamation to be published in the Hobart Gazette not less than seven days before the issue of the writ for any Election of Senators for the State of Tasmania fix:

1. The Places at which such Election shall be held:

2. The date for the Nomination:

3. The date for the Polling:

4. The date for the Declaration of the Poll:

and so far as any of such times and places may be mentioned in the writ for the Elec-tion they shall be in accordance with the times and places fixed by such Proclamation'.

The State Governor fixed the polling places for the forthcoming Senate election by proclamation dated the 16th of April (vide accompanying list) and I am informed by the Commonwealth Electoral Officer for Tasmania that the State authorities cannot see their way under the law to appoint any additional polling places.

The Minister for Home Affairs appoints Commonwealth polling places by notice in the Gazette, under the provisions of section 25 of the Commonwealth Electoral Act 1902-1911, and has under date 19th instant approved of the appointment of a polling place at Hampshire, in the Subdivision of Bell Bay, Division of Darwin, and has directed the gazettal of this polling place.

The following questions arise:

1. Can the poll for the Senate election be legally taken at Hampshire as a Com-monwealth polling place, or may the poll for the House of Representatives and referendums only be taken at that place?

2. If the poll for the Senate may not be taken at Hampshire, should the fact be advertised by the Divisional Returning Officer when notifying for public infor-mation the appointment of Hampshire as a polling booth, in order that electors attending at that place may not be under a wrong impression and so have a ground of complaint if they are refused Senate ballot-papers?

A further question arises as to whether the authorities are correct in their interpret-ation of the provisions of The Election of Senators Act 1903.

In my opinion, the Commonwealth Parliament has power, under section 9 of the Constitution, to make laws for the appointment of polling places, which are not 'places of elections' within the meaning of the second paragraph of that section.

I enclose a copy of a carefully considered opinion by Mr Attorney-General Deakin on this point, dated 30 December 1902.⁽¹⁾

A perusal of the Senate Elections Acts of 1903 of the several States does not make it clear that they agree with this view. The Queensland Act purports to empower the Governor in Council to appoint polling places. The New South Wales and Victorian Acts purport to adopt the polling places fixed under Commonwealth law. The South Australian, Western Australian and Tasmanian Acts provide for the Governor fixing 'the places at which such elections shall be held'; but do not specifically mention polling places.

In my opinion, the power under the Commonwealth Electoral Act to fix polling places is not affected by the provisions of the State Acts.

At the same time, I would point out that the question has not been the subject of ju-dicial decision, and therefore that it is advisable, so far as reasonably practicable, to conduct the election in such a way that the point cannot be raised.

In any case, I think it would be most inadvisable to appoint any polling place 'for the House of Representatives and referendums only'-a course which would clearly be unauthorised by the Commonwealth Electoral Act except on the assumption that the provisions of that Act relating to fixing polling places are ultra vires so far as they extend to Senate elections.

[Vol. 11, p. 211]

(1)Opinion No. 122.