House of Representatives Practice, 6th edition – HTML version

3 - Elections and the electoral system

Right click over the text to activate a context menu for House of Representatives Practice and Procedures. (Note: on iPad Safari this function is activated by a finger press and holding down for several seconds.)


By-elections

Whenever a vacancy occurs in the House because of the death, resignation, absence without leave, expulsion or disqualification or ineligibility of a Member,[80] a writ may be issued by the Speaker for the election of a new Member.[81] Since Federation there have been, on average, three or four by-elections per Parliament.[82] A by-election may be held on a date to be determined by the Speaker or, in his or her absence from Australia, by the Governor-General in Council. The polling must take place on a Saturday.[83]

If there is no Speaker or if the Speaker is absent from the Commonwealth, the Governor-General in Council may issue the writ.[84] A by-election writ may be issued by the Acting Speaker performing the duties of the Speaker during the Speaker’s absence within the Commonwealth.[85] A writ has been issued by the Deputy Speaker during the Speaker’s absence within the Commonwealth[86] and the Deputy Speaker has informed the House of the Speaker’s intention to issue a writ.[87]

There are no constitutional or statutory requirements that writs be issued for by-elections within any prescribed period.[88] The following cases have occurred:

  • with a general election pending, the Speaker has declined to issue a writ in order to avoid the need for two elections within a short period of time;[89] and
  • writs have been issued and then withdrawn by the Speaker when dissolution of the House has intervened.[90]

In so far as it concerns the sequence of events following the issuing of a writ, the Commonwealth Electoral Act makes very little distinction between by-elections and ordinary (general) elections—for indicative timetable details see page 96.

Notwithstanding that Speakers have decided not to issue writs pending general elections, a suggestion that the Speaker should withhold issue for other purposes has been rejected. In January 1946 the Speaker issued the following statement:

The guiding principle in fixing the date of a by-election has always been to hold the election as early as possible so that the electors are not left without representation any longer than is necessary. With that principle before me I submitted the dates I proposed to the Chief Electoral Officer; he suggested a minor alteration regarding the return of the writ, which I accepted, and the writ was accordingly issued early today. Representations were later made to me that sufficient time was not allowed for a particular State Member to resign. In reply to that I would point out that Mr Wilson’s appointment to an office under the Crown had been announced early in December and was published later in December in the Gazette. Individuals and parties thus had ample notice of the pending vacancy in the House. I would also point out that in the last by-election (Fremantle) an exactly similar number of days was allowed between the issue of the writ and nominations. It has been represented to me that the writ should be withdrawn and a new writ issued. If I were to do this I would be considering the wishes of one particular individual, which should not enter into the matter and which would raise a justifiable protest from other candidates and parties. Moreover, the Chief Electoral Officer advises that the dates have already been notified to the commanders of service units outside Australia, and confusion and inconvenience would be likely if the writ were withdrawn and another issued.[91]

A writ has been issued by the Governor-General between a general election and the meeting of a new Parliament consequent upon the death of an elected Member and when a Member has resigned to the Governor-General before the House has met and chosen a Speaker.[92] Based on this procedure new elections have been held before the meeting of Parliament and after the meeting of Parliament.[93]

When the Court of Disputed Returns (see page 103) declares an election absolutely void, a writ may be issued by the Speaker for the purposes of a new election.[94]

The Clerk of the House was subpoenaed by the Supreme Court of Victoria to appear on 20 June 1904 and produce the original writ issued by the Speaker on 15 March 1904 for an election for the division of Melbourne.[95]

In issuing a writ for a by-election Speakers normally follow the procedure set out below:

  • the vacancy and cause of vacancy is notified to the House at the earliest opportunity;
  • convenient dates are selected and the Electoral Commission is consulted as to their suitability for electoral arrangements;
  • proposed dates are forwarded to party leaders for comment;
  • dates determined by the Speaker are notified by a press release;
  • a writ addressed to the Electoral Commissioner is prepared, signed by the Speaker and embossed with the House of Representatives seal;
  • the House is advised;
  • the writ is delivered to the Electoral Commissioner;
  • the Australian Broadcasting Authority is advised; and
  • notification of the by-election is published in the Gazette.[96]

80. For discussion see Ch. on ‘Members’.
81. Constitution, s. 33. A by-election is conducted on existing boundaries not redistributed boundaries.
82. For a list of by-elections see Parliamentary Handbook.
83. Commonwealth Electoral Act 1918, s. 158.
84. Constitution, s. 33.
85. S.O. 18; and see Ch. on ‘The Speaker, Deputy Speakers and officers’.
86. VP 1920–21/575 (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 (Chairman of Committees as Deputy Speaker); but see Ch. on ‘The Speaker, Deputy Speakers and officers’.
88. The average time between vacancy and polling day has been 47 days—minimum 17, maximum 82 (1901–2009 figures).
89. VP 1926–28/649; VP 1964–66/621; H.R. Deb. (18.8.1966)157; VP 1990–92/1941.
90. VP 1929–31/950, Gazette 97 (27.11.1931); VP 1932–34/899, 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.
93. VP 1964–66/3–5 (before), VP 1917/4 (after).
94. E.g. VP 1904/26, 44; VP 1907–8/4; VP 1920–21/190; VP 1996–98/428–30, 489.
95. VP 1904/85; and see VP 1912/15 and Chs on ‘The Parliament and the role of the House’ and ‘Documents’.
96. E.g. Gazette S338 (17.9.1996).

Top