House of Representatives Practice, 6th edition – HTML version

3 - Elections and the electoral system

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The election process

The following table illustrates the constitutional and statutory requirements for the conduct of an election and the particular time limitations imposed between dissolution and the meeting of the new Parliament.[105]

Table 3.2 Timetable for a general election

Stage

Limitation (a)

Constitutional or statutory provision

Dissolution

Constitution, ss. 5, 28

Issue of writs (at 6 p.m.)

Within 10 days of dissolution

Constitution, s. 32; Commonwealth Electoral Act, ss. 152, 154

Close of electoral rolls (at 8 p.m.)

7 days after date of writ

Commonwealth Electoral Act, s. 155

Nominations close (at 12 noon)

Not less than 10 days nor more than 27 days after date of writ

Commonwealth Electoral Act, ss. 156, 175

Date of polling (a Saturday)

Not less than 23 days nor more than 31 days from date of nomination (b)

Commonwealth Electoral Act, ss. 157, 158

Return of writs

Not more than 100 days after issue

Commonwealth Electoral Act, s. 159

Meeting of new Parliament

Not later than 30 days after the day appointed for the return of writs

Constitution, s. 5

  1. Advice from the Attorney-General’s Department, dated 15 March 1904, states that the dates fixed are reckoned exclusive of the day from which the time is reckoned; and see Acts Interpretation Act 1901, s. 36(1).
  2. A general election (or by-election) must therefore take place not less than 33 nor more than 58 days after the issue of writ(s).

Issue of writs

The authority for holding an election is in the form of a writ issued by the Governor-General,[106] or in the case of a by-election by the Speaker (see page 92), directed to the Electoral Commissioner commanding the Commissioner to conduct an election in accordance with the prescribed procedures.[107]

The writs for general elections of the House of Representatives are issued by the Governor-General (acting with the advice of the Executive Council) and specify the date by which nominations must be lodged, the date for the close of the electoral rolls, the date on which the poll is to be taken and the date for the return of the writ. The writ is deemed to have been issued at 6 p.m. on the day of issue.[108] Eight writs are issued for a general election, one for each of the six States and the two Territories. The issue of writs is notified in the Gazette.[109]

In the case of dissolution or expiry of the House of Representatives the writs must be issued within 10 days,[110] so that there cannot be undue delay before an election is held to elect a new House of Representatives.

Close of electoral rolls

The electoral rolls close at 8 p.m. seven days after the date of the writ. This cut-off applies both to alterations and new enrolments. Amendments to the Commonwealth Electoral Act were made in 2006 closing the electoral rolls three working days after the date of the writ and stopping the processing of new enrolments at 8 p.m. on the day of the writ.[111] These provisions operated for the 2007 general election but in 2010 were declared by the High Court to be invalid.[112]

Nomination of candidates

To contest an election to the House of Representatives a person must be nominated by at least 50 electors in the division he or she is to contest, or by the registered officer of the party endorsing him or her as a candidate. A candidate who is a ‘sitting independent’ Member needs nomination by only one elector.[113] Nominations are made to the Divisional Returning Officer and can be made at any time between the issue of the writ and the close of nominations. Candidates of registered political parties[114] may also be nominated in bulk for divisions of a State or Territory by the registered officer of the party. Bulk nominations must be made to the Australian Electoral Officer for the State or Territory no later than 48 hours prior to the close of nominations. For a nomination to be valid, it must have the candidate’s consent and be accompanied by a declaration by the candidate that he or she is qualified under the Constitution and the laws of the Commonwealth to be elected as a Member of the House of Representatives. The declaration must also state that he or she will not be a candidate for any other election held on the same day, and give details of his or her Australian citizenship.[115]

A person who at the hour of nomination is a Member of a State Parliament or Territory Assembly may not be nominated.[116] Likewise a Member of the Senate or the House is required to resign to contest an election for the House of which he or she is not a Member.[117] There are constitutional prohibitions (outlined in the Chapter on ‘Members’) concerning persons who hold any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth. If unsuccessful, an Australian Public Service or Parliamentary Service employee who has resigned to contest an election must be reappointed to the service.[118] Officers of the Electoral Commission are not eligible for nomination.[119]

A deposit of $500 is required to be lodged with the nomination. The deposit is returned if the candidate is elected or polls at least four per cent of the total first preference votes polled in the division.[120] Candidates may withdraw their nominations up to the close of nominations but cannot do so after nominations have closed.[121] If one candidate only is nominated then he or she is declared duly elected without an election being necessary.[122]

Should a candidate die during the nomination period the hour of nomination is extended by 24 hours to allow time for the nomination of an alternative candidate.[123] If any candidate dies between the close of nominations and polling day, the election is deemed to have failed and a new writ for a supplementary election[124] is issued forthwith. These provisions are based on the principle that no political party should be disadvantaged at an election because of the death of its candidate. In the division of Hume for the 1972 general election an independent candidate died after the close of nominations and a new writ was issued setting a new date for nominations. The dates of the original writ for polling and the return of the writ were retained.[125] During the 1993 general election in the division of Dickson an independent candidate died shortly before the poll. A new writ was issued for a supplementary election, setting later dates for nominations, polling and the return of the writ.[126] Similarly, a supplementary election was held in 1998 for the division of Newcastle because of the death of a candidate prior to polling day.

Nominations are declared (publicly announced) at the office of the respective Divisional Returning Officer at 12 noon on the day following the day of the close of nominations,[127] and the order of candidates’ names on the ballot paper then determined by lot.[128]

Electoral offences

In order to help ensure fair elections, the Commonwealth Electoral Act prohibits bribery, undue influence and a number of other practices, and provides for penalties for these offences.[129] On 16 February 1976 a case against a former Minister (Hon. R. V. Garland) and a former Senator (Mr G. H. Branson) was brought by the Attorney-General alleging a breach of the bribery provisions of the Commonwealth Electoral Act.[130] As a result of the proposed action Mr Garland had resigned his commission as a Minister on 6 February 1976.[131] The magistrate dismissed the charge, ruling that although a prima facie case had been established, a jury, properly directed, would not convict the defendants.[132]

Polling day

Each voter is required to mark the ballot paper preferentially (see page 95) and secrecy of voting is assisted by the provision of private voting compartments. Since the introduction of compulsory voting in 1925, over 91 per cent of enrolled voters have cast a vote at general elections.[133]

Scrutineers

Scrutineers may be appointed by candidates to represent them at polling places during the election,[134] and at pre-poll voting offices,[135] in order to observe the proceedings of the poll and satisfy the candidate that the poll is conducted strictly in accordance with the law. Each candidate may also appoint scrutineers at each place where votes are being counted.[136]

Counting

Counting commences in the presence of the scrutineers as soon as practicable after the poll closes.[137] An initial count of first preference votes and a two candidate preferred count is carried out. The purpose of the two candidate preferred count is to provide on election night an indication of the candidate most likely to be elected. After polling day a fresh count is made and preferences are distributed see page 95). Informal (i.e. invalid) ballot papers are not included in the count.[138] In recent years the number of informal votes cast at general elections has varied between 2.1 and 6.3 per cent of the total votes cast.[139] In 2010 this figure was 5.6 per cent.

Recount

At any time before the declaration of the result of an election, the officer conducting the election may, at the written request of a candidate, or of his or her own volition, recount some or all of the ballot papers.[140] A recount is generally undertaken only where the final result is close and specific grounds for a recount can be identified. If a recount confirms a tied election, the officer must advise the Electoral Commissioner that the election cannot be decided.[141] In such circumstances the Electoral Commission must file a petition disputing the election with the Court of Disputed Returns, which must within three months declare either a candidate elected or the election void.[142]

Declaration of the poll

The result of the election is declared as soon as practicable after it has been ascertained that a candidate has been elected—in some divisions this may be a week or more after the election. In a House of Representatives election the declaration of the poll is generally made at the office of the respective Divisional Returning Officer.[143] Because the time for counting will vary from division to division, declarations of the various polls do not necessarily occur on the same day. The poll may be declared, notwithstanding that all ballot papers have not been received or inquiries completed, if the Returning Officer is satisfied that the votes recorded on the ballot papers concerned could not possibly affect the result.[144]

Return of writs

A writ is both the authority for an election to be held and the authority by which the successful candidate is declared elected. When all polls in a State or Territory have been declared at a general election or when the poll has been declared for a division subject to a by-election, the Electoral Commissioner certifies the name of the successful candidate for each division or the division, and forwards the writ to the Governor-General or Speaker, as the case may be.[145] Writs are returnable on or before the date fixed for their return. The date on which a writ is returned is the date on which the endorsed writ comes into the actual physical possession of the person authorised to act upon it (that is, the Governor-General or the Speaker).[146] All writs for a general election are returnable by the same day and all writs are forwarded together by the Governor-General’s Official Secretary to the Clerk of the House. The issuing authority may extend the time for holding an election or for returning the writs.[147] An error in a writ may be remedied by proclamation.[148]

Meeting of a new Parliament

After a general election the House must meet not later than 30 days after the day fixed for the return of the writs.[149] However, the House may meet as soon as the writs are returned and in recent Parliaments it has not been unusual for the House to meet before the date fixed for the return of writs.[150]

On the first meeting of a new Parliament, returns to the eight writs for the general election are presented to the House by the Clerk and the Members are then sworn.[151]


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 S210 (17.10.2007); Gazette S139 (20.7.2010) (issued by Administrator).
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 59.4%.
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 1980 to 2010 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 (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’.

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