Chapter 3 References

[1]Constitution, s. 5.

[2]New South Wales, Victoria, Western Australia and Tasmania on 29 March 1901, and Queensland and South Australia on 30 March 1901.

[3]Quick and Garran, p. 409.

[4]Constitution, s. 29; South Australia and Tasmania each voted as one electorate.

[5]Constitution, s. 30.

[6]Constitution, s. 31.

[7]At that time the only States where women were entitled to vote were South Australia and Western Australia.

[8]Constitution, s. 26.

[9]Commonwealth Electoral Act 1902; Commonwealth Franchise Act 1902.

[10]Comprehensive details of electoral procedures and election statistics are available from the Australian Electoral Commission and on the Commission’s web site Historical coverage of election results is also contained in the Parliamentary Handbook.

[11]Constitution, ss. 30, 41.

[12]Originally excluding Aboriginal people (other than those already enrolled in a State in 1902). The passage of the 1902 Act made Australia the first country to give women (with the exception of Aboriginal women in some States) both the right to vote and the right to stand for election in the national Parliament. New Zealand had given women the right to vote, but not stand for election, in 1893. In some Australian States at Federation women already had the vote (South Australia from 1895, Western Australia from 1899), and were thus able to vote in the first federal election in 1901.

[13]The main innovation of the type of secret ballot which originated in Australia in the 1850s (and is still in some jurisdictions referred to as the ‘Australian ballot’) was the government printed ballot paper listing all eligible candidates, combined with the marking of the paper in private. Earlier ‘secret’ systems, where used (notably in France and some States of the United States), had involved ballot papers, perhaps supplied by candidates or interested parties, being brought to the poll by the voter.

[14]Plural voting is precluded by the Constitution, s. 30.

[15]Commonwealth Electoral Act 1918, ss. 82, 101.

[16]Commonwealth Electoral Act 1918, s. 240.

[17]Commonwealth Electoral Act 1924.

[18]Commonwealth Electoral Act 1918, s. 245. Failure to vote at an election is an offence. An elector who fails to vote can avoid the matter going to court by providing ‘a valid and sufficient reason’ or paying a $20 penalty to the Electoral Commission.

[19]Those entitled to State enrolment, or members or former members of the Defence Force. Commonwealth Electoral Act 1949.

[20]Amending legislation passed in 1962 in response to recommendations by the Select Committee on Voting Rights of Aborigines, H of R 1 (1961).

[21]Commonwealth Electoral Act 1918, s. 93. Change effective for 1973 Parramatta by-election and 1974 general election (previously age 21).

[22]Commonwealth Electoral Act 1918, ss. 93, 100.

[23]Commonwealth Electoral Act 1918, s. 99A.

[24]Commonwealth Electoral Act 1918, s. 93. The High Court has ruled that amendments to the Act to exclude all persons serving a sentence of imprisonment were invalid, being inconsistent with the system of representative democracy established by the Constitution, Roach v. Electoral Commissioner [2007] HCA 43.

[25]Commonwealth Electoral Act 1918, ss. 108, 109.

[26]Commonwealth Electoral Act 1918, s. 94.

[27]Commonwealth Electoral Act 1918, s. 96.

[28]Commonwealth Electoral Act 1918, s. 96A.

[29]Commonwealth Electoral Act 1918, s. 99(4).

[30]Constitution, s. 24; Representation Act 1905 (repealed). The provisions are now in the Commonwealth Electoral Act—see ‘Determination of divisions’ at p. 89.

[31]Constitution, s. 121.

[32]Constitution, s. 122.

[33]For a description of former provisions for the representation of the Australian Capital Territory and the Northern Territory and limitations on Members representing the Territories in earlier years see pages 168–9 of the second edition.

[34]Commonwealth Electoral Act 1918, s. 56A (currently Lingiari).

[35]Commonwealth Electoral Act 1918, s. 56AA (currently Canberra, proposed to change to the new ACT electorate after the 2017 redistribution). The Territory of Jervis Bay is also included in an ACT electorate (currently Fenner).

[36]Commonwealth Electoral Act 1918, s. 48A, inserted by the Commonwealth Electoral Amendment (Representation in the House of Representatives) Act 2004.

[37]Commonwealth Electoral Act 1918, s. 48.

[38]Representation Act 1948.

[39]Attorney-General (NSW); Ex rel. McKellar v. Commonwealth (1977) 139 CLR 527. The invalidated formula, introduced by the Representation Act 1964, had involved rounding up, instead of rounding to the nearest integer. In this ruling the High Court also upheld the validity of provisions of the Representation Act 1973 which provided that the four Territory Senate places created in 1974 could not be included for the purpose of calculating the number of Members of the House under the ‘nexus’ provision of the Constitution.

[40]Representation Act 1983.

[41]Constitution, s. 24; see also Ch. on ‘Members’.

[42]Commonwealth Electoral Act 1918, s. 48.

[43]Constitution, s. 24.

[44]Commonwealth Electoral Act 1918, s. 48(2B). In addition, sections 48(2E) and (2F) prescribe a mechanism for taking account of the possible effects of estimation error on population figures, in such a way as to make it less likely that the Northern Territory or Australian Capital Territory will lose a Member as a result of a determination.

[45]Commonwealth Electoral Act 1918, ss. 56, 57. The means of determining the number of Members is laid down in s. 48; and see Ch. on ‘Members’.

[46]Except at the first election when both South Australia and Tasmania each voted as one division.

[47]Commonwealth Electoral Act 1918, s. 65.

[48]Commonwealth Electoral Act 1918, s. 59. The States having been distributed into divisions once are thereafter redistributed. The words ‘distributed’ and ‘redistributed’ are commonly used synonymously.

[49]Commonwealth Electoral Act 1918, s. 46.

[50]The first redistribution of the Northern Territory to provide for two Members occurred in 2000.

[51]Commonwealth Electoral Act 1918, s. 60.

[52]Commonwealth Electoral Act 1918, s. 65.

[53]Commonwealth Electoral Act 1918, s. 63A.

[54]Commonwealth Electoral Act 1918, s. 66.

[55]Commonwealth Electoral Act 1918, s. 64.

[56]Commonwealth Electoral Act 1918, s. 68.

[57]Commonwealth Electoral Act 1918, s. 67.

[58]Commonwealth Electoral Act 1918, s. 69.

[59]Commonwealth Electoral Act 1918, s. 70.

[60]Commonwealth Electoral Act 1918, s. 72.

[61]Commonwealth Electoral Act 1918, s. 71(6).

[62]Commonwealth Electoral Act 1918, s. 77. The enrolment of new electors and changes to existing enrolments are implemented immediately following the determination of new boundaries. However, for the purpose of electing Members, the new boundaries do not come into effect until the next federal election.

[63]Commonwealth Electoral Act 1918, s. 75.

[64]Before 1984, redistributions were subject to the approval, by resolution, of each House of the Parliament. The former provisions are described in early editions (4th edn, p. 88).

[65]Commonwealth Electoral Act 1918, s. 76. While the Northern Territory is treated as a State under these provisions, now that it has two Members (in accordance with s. 55A), s. 76A provides special arrangements.

[66]Commonwealth Electoral Act 1918, ss. 76(10) and (12).

[67]Commonwealth Electoral Act 1918, s. 78.

[68]‘Matters in relation to electoral redistribution, Queensland 1977’, Report of the Royal Commission of Inquiry, PP 263 (1978). The case is described in more detail in early editions (4th edn, p. 89).

[69]Constitution, s. 5.

[70]Constitution, s. 28.

[71]Constitution, s. 32.

[72]Constitution, s. 5.

[73]See Ch. on ‘The Parliament and the role of the House’.

[74]For a list of federal elections see Appendix 12.

[75]For further discussion see Ch. on ‘Double dissolutions and joint sittings’.

[76]However, in practice this power is exercised with the advice of the Federal Executive Council; see Quick and Garran, pp. 404–6. For further discussion see Ch. on ‘The Parliament and the role of the House’.

[77]Constitution, s. 32; and see s. 62.

[78]Occasionally reasons for dissolving the House have been published, see Table 1.1 ‘Early Dissolutions of the House of Representatives’ in Ch. on ‘The Parliament and the role of the House’.

[79]For discussion see Ch. on ‘Members’.

[80]Constitution, s. 33. A by-election is conducted on existing boundaries not redistributed boundaries.

[81]For a list of by-elections see Parliamentary Handbook.

[82]Commonwealth Electoral Act 1918, s. 158.

[83]E.g. Gazette C2014G00014 (6/1/2014).

[84]Constitution, s. 33.

[85]S.O. 18; and see Ch. on ‘The Speaker, Deputy Speakers and officers’.

[86]VP 1920–21/575 (14.6.1921) (Chairman of Committees as Deputy Speaker). There is some doubt as to the constitutional validity of this action.

[87]E.g. VP 1956–57/63 (20.3.1956) (Chairman of Committees as Deputy Speaker); but see Ch. on ‘The Speaker, Deputy Speakers and officers’.

[88]The time between vacancy and polling day has ranged between 17 and 82 days (1901–2016 figures). The minimum period now under the Commonwealth Electoral Act 1918 must allow 33 days after the issue of the writ.

[89]VP 1926–28/649 (12.9.1928); VP 1964–66/621 (18.8.1966); H.R. Deb. (18.8.1966)157; VP 1990–92/1941 (16.12.1992).

[90]VP 1929–31/950 (26.11.1931), Gazette 97 (27.11.1931); VP 1932–34/899 (5.7.1934), Gazette 40 (5.7.1934).

[91]Statement issued outside the House. Members of State Parliaments previously had to resign 14 days before nomination.

[92]Constitution, s. 33; VP 1983–84/6 (21.4.1983).

[93]VP 1964–66/3–5 (25.2.1964) (before), VP 1917/4 (14.6.1917) (after).

[94]E.g. VP 1904/26 (15.3.1904), 44 (19.4.1904); VP 1907–8/4 (3.7.1907); VP 1920–21/190 (1.7.1920); VP 1996–98/428–30 (11.9.1996), 489 (16.9.1996).

[95]VP 1904/85 (17.6.1904); and see VP 1912/15 (25.6.1912) and Chs on ‘The Parliament and the role of the House’ and ‘Documents’.

[96]E.g. Gazette S338 (17.9.1996).

[97]Although the Constitution empowers the Parliament to prescribe a Senate electoral system based on divisions within a State or Territory, that has not been done.

[98]Constitution, s. 13. The term of service normally starts on 1 July following the election. After a dissolution of the Senate it starts on 1 July preceding the election.

[99]Constitution, s. 15; Commonwealth Electoral Act 1918, s. 44. Prior to 1980 NT and ACT casual Senate vacancies would have been filled by a by-election, but none occurred. Subsequently, NT vacancies were to be determined by the NT Legislative Assembly but, until the establishment of the ACT Legislative Assembly in 1989, the Senate and the House of Representatives, at a joint sitting, chose the person to fill a casual Senate vacancy in the ACT. Joint sittings for this purpose were held on 5 May 1981 (J 1980–81/227) and 16 February 1988 (J 1987–90/477–8)—for rules adopted for this sitting see Rules for joint sittings. The mechanism of filling a casual Senate vacancy by means of a joint sitting of the Commonwealth Parliament is retained in the case of a vacancy in a Territory other than the ACT or NT (should any gain Senate representation), Commonwealth Electoral Act 1918, s. 44(2A).

[100]That is, the party for which the vacating Senator was elected, Constitution, s. 15.

[101]Commonwealth Electoral Act 1918, s. 274.

[102]Commonwealth Electoral Act 1918, ss. 240, 268.

[103]Commonwealth Electoral Act 1918, s. 274.

[104]Commonwealth Electoral Act 1918, s. 239. For a more detailed account of this system see Odgers, and Electoral Commission publications.

[105]Appendix 12 shows significant dates in relation to each general election since 1940.

[106]Constitution, s. 32.

[107]Commonwealth Electoral Act 1918, s. 154.

[108]Commonwealth Electoral Act 1918, s. 152. Form B of Schedule 1 to the Act prescribes the form in which writs are issued.

[109]E.g. Gazette S139 (20.7.2010) (issued by Administrator); Gazette C2013G01199 (6.8.2013).

[110]Constitution, s. 32.

[111]Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006.

[112]Rowe v. Electoral Commissioner [2010] HCA 46.

[113]Commonwealth Electoral Act 1918, s. 166(1C). For the purpose of this section the candidate is a ‘sitting independent’ if he or she was not endorsed by a political party at the previous election and is contesting the same seat, s. 166(1E).

[114]To be able to be registered, a party must have at least one member in Parliament or, if it has no parliamentary member, at least 500 party members. Commonwealth Electoral Act 1918, s.123.

[115]Commonwealth Electoral Act 1918, s. 170. Qualification and disqualification requirements are outlined in the Ch. on ‘Members’.

[116]Commonwealth Electoral Act 1918, s. 164.

[117]Constitution, s. 43 (the resignation needs to be made before nomination).

[118]Public Service Act 1999, s. 32.Parliamentary Service Act 1999, s. 32.

[119]Commonwealth Electoral Act 1918, s. 36.

[120]Commonwealth Electoral Act 1918, ss. 170, 173.

[121]Commonwealth Electoral Act 1918, s. 177.

[122]Commonwealth Electoral Act 1918, s. 179(2). The last occasion of an uncontested election was in respect of the Northern Territory at the 1963 general election. In the 1955 general election 11 divisions were uncontested.

[123]Commonwealth Electoral Act 1918, s. 156.

[124]Commonwealth Electoral Act 1918, ss. 180, 181.

[125]Gazette S112 (13.11.1972).

[126]Gazette S78 (9.3.1993).

[127]Commonwealth Electoral Act 1918, ss. 175, 176.

[128]Using a method of double randomisation in which an initial draw of numbered balls assigns a number to each candidate and a second draw determines the order in which candidates appear on the ballot paper, Commonwealth Electoral Act 1918, s. 213. Form F of Schedule 1 to the Act contains a sample ballot paper. (Before 1984 candidates were listed on the ballot paper in alphabetical order.)

[129]Commonwealth Electoral Act 1918, Part XXI.

[130]Commonwealth Electoral Act 1918, s. 326.

[131]Gazette S28 (9.2.1976).

[132]Case unreported; but see ‘Australia: Alleged breach of Electoral Act’, The Parliamentarian, LVII, 4, 1976, p. 253.

[133]Turnout at the general election which preceded the introduction of compulsory voting was just less than 60%.

[134]Commonwealth Electoral Act 1918, s. 217.

[135]Commonwealth Electoral Act 1918, s. 200DA.

[136]Commonwealth Electoral Act 1918, s. 264.

[137]Commonwealth Electoral Act 1918, s. 265.

[138]Commonwealth Electoral Act 1918, s. 268.

[139]Figures for elections from 1977 to 2016 inclusive.

[140]Commonwealth Electoral Act 1918, s. 279.

[141]Commonwealth Electoral Act 1918, s. 274(9C).

[142]Commonwealth Electoral Act 1918, ss. 357(1A), 367A.

[143]Commonwealth Electoral Act 1918, s. 284. It is possible for another place to be determined, s. 284(1).

[144]Commonwealth Electoral Act 1918, s. 284.

[145]Commonwealth Electoral Act 1918, s. 284.

[146]Letter from Electoral Commissioner to Clerk of House 17.3.94 (citing advice from the Attorney-General’s Department).

[147]Commonwealth Electoral Act 1918, s. 286. Gazette 26 (30.4.1910) 973.

[148]Commonwealth Electoral Act 1918, s. 285. VP 1998–2001/3 (10.11.1998) (Governor-General’s proclamation rectifying errors in certificates on writs presented). Other kinds of error in the election process may also be remedied under this provision—in the 2004 general election the times for the return of postal votes in Queensland were extended by proclamation after it had been found that a number of electors had not received postal voting materials.

[149]Constitution, s. 5.

[150]See Appendix 12.

[151]S.O. 4; and see Ch. on ‘The parliamentary calendar’.

[152]Public funding was introduced by the Commonwealth Electoral Legislation Amendment Act 1983 (effective 1984).

[153]The Joint Standing Committee on Electoral Matters has recommended that successful candidates below the threshold also receive funding. Report on the funding of political parties and election campaigns, Nov. 2011.

[154]Commonwealth Electoral Act 1918, ss. 294–302, 321.

[155]Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017.

[156]Most candidates in fact submit ‘nil returns’, as in practice donations are received and electoral expenditure is incurred by political parties and the details shown in the relevant periodic returns.

[157]E.g. payments over the disclosure threshold to advertising, market research or polling organisations, Commonwealth Electoral Act 1918, s. 311A.

[158]Commonwealth Electoral Act 1918, ss. 306, 306A.

[159]Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017.

[160]Commonwealth Electoral Act 1918, ss. 315.

[161]Commonwealth Electoral Act 1918, ss. 316.

[162]Commonwealth Electoral Act 1918, s. 319.

[163]Constitution, s. 47.

[164]VP 1901–02/59 (13.6.1901), 83 (5.7.1901), 419 (22.4.1902). See Appendix 13.

[165]Until 1987, the Senate at the commencement of each Parliament appointed a Committee of Disputed Returns and Qualifications but it did not function from 1907.

[166]VP 1901–02/61 (14.6.1901), 87 (10.7.1901), 441 (29.5.1902).

[167]Commonwealth Electoral Act 1902, ss.192–206. (This legislation did not apply to the election of a Member to fill a vacancy in the House of Representatives during the 1st Parliament.)

[168]Disputed Elections and Qualifications Act 1907, s. 6 (later repealed and its provisions incorporated in the Commonwealth Electoral Act 1918).

[169]Commonwealth Electoral Act 1918, s. 353.

[170]Commonwealth Electoral Act 1918, ss. 355–6.

[171]Commonwealth Electoral Act 1918, s. 357(1A). see Gazette C2013G01703 (18.12.2013) for Electoral Commissioner’s petition disputing election of Senators for Western Australia.

[172]Commonwealth Electoral Act 1918, s. 354.

[173]Commonwealth Electoral Act 1918, s. 363.

[174]Commonwealth Electoral Act 1918, s. 369; VP 1929–31/91–2 (12.3.1930).

[175]E.g. VP 2010–13/174 (15.11.2010).

[176]E.g. VP 2008–10/133 (11.3.2008).

[177]Commonwealth Electoral Act 1918, s. 368.

[178]Commonwealth Electoral Act 1918, s. 374.

[179]See Appendix 13—(figures to end 2016).

[180]VP 1904/25–6 (15.3.1904), 43–4 (19.4.1904); VP 1907–8/3–4 (3.7.1907); VP 1920–21/189–90 (1.7.1920); VP 1990–92/1907 (25.11.1992), 1921–3 (26.11.1992) (by-election not held due to general elections in March 1993); VP 1996–98/428–30 (11.9.1996), 489 (16.9.1996).

[181]VP 1993–96/176–7 (19.8.1993), 1106 (27.6.1994).

[182]VP 1920–21/468 (25.11.1920).

[183]Commonwealth Electoral Act 1918, s. 376.

[184]Commonwealth Electoral Act 1918, s. 377.

[185]Commonwealth Electoral Act 1918, s. 380.

[186]To December 2017: VP 2016–18/ 958 (14.8.2017), 1274–5 (6.12.2017). These cases and unsuccessful motions to refer matters are covered under ‘Challenges to membership’ in Ch. on ‘Members’.

[187]See Odgers, 6th edn, pp. 172–4; 14th edn, p. 172.