HOUSE OF REPRESENTATIVES ELECTIONS
ELECTION OF NEW MEMBER TO FILL VACANCY CAUSED BY COURT VOIDING ELECTION: ISSUE OF WRIT BY SPEAKER: WHETHER NEW ELECTION CONSTITUTES GENERAL ELECTION FOR PURPOSES OF WAR-TIME ELECTORAL LEGISLATION
CONSTITUTION, ss. 15, 33: COMMONWEALTH ELECTORAL (WAR-TIME) ACT 1917, s. 2
The Chief Electoral Officer forwards the following case for opinion:
The Commonwealth Electoral (War-time) Act 1917-1919 applies in relation to elections for the Senate and general elections for the House of Representatives held during the present war or within six months thereafter (see section 2).
The House of Representatives election for Ballarat, held with the general elections on 13 December last, was declared void by the Court of Disputed Returns on the 2nd instant, and a writ has been issued by the Speaker for a new election.
It is presumed that this new election is a by-election to which the War-time Electoral Act does not apply.
I shall be pleased if you will advise as to whether you concur in this view.
I think that, in the events which have happened, there is a 'vacancy ... in the House of Representatives' within the meaning of section 33 of the Constitution, and that the writ has rightly been issued by the Speaker.
The Commonwealth Electoral (War-time) Act 1917 is expressed to apply in relation to 'elections for the Senate and general elections for the House of Representatives, held during the present war or within six months thereafter'.
In my opinion, the election under the writ issued by the Speaker is not a 'general election', nor a part of a general election, within the meaning of that Act, and therefore the Electoral (War-time) Act does not apply to it.
I have considered the decision of the High Court in Vardon v. O'Loghlin 5 C.L.R. 201, where it was held that the vacancy existing, after Vardon's election had been declared void, was not a vacancy in the place of a senator within the meaning of section 15 of the Constitution, which applies where 'the place of a senator becomes vacant before the expiration of his term of service', and that therefore the provisions of the Constitution for the election by the Parliament of a 'successor' to 'hold the place' did not apply.
That decision, however, was a decision on the special provisions of section 15 of the Constitution, and in my opinion does not affect this case.
[Vol. 16, p. 463]