3 5 If, when the time for sending in nominations has expired, the number of candidates nominated does not exceed the number of vacancies, the returning officer declares the nominated candidates duly elected.1 But if there is a contest, he prepares for a poll by hiring or appropriating booths, and appointing deputies. The poll is taken by ballot, with due precautions for secrecy.1 Each candidate may appoint a scrutineer to protect his interests, but, with this exception, no persons are allowed to be present during the polling except the returning officer or his deputy, the poll clerk appointed by him, and not more than six persons actually engaged in voting.6 The poll lasts from 8 A.M. to 5 P.M. of the same day, except in the metropolitan and suburban area, where, on a poll for the Assembly, the hours are from 8 A.M. to 7 P.M.7 Two classes of voters exist: those who have and those who have not "elector's rights." The former class must produce their "rights," and prove that their names are on the electoral roll of the division; for the latter the second condition is sufficient.9 Certain questions may be put to the claimants by the returning officer, with the object of ascertaining their identity, and the continuance of their qualification,1o and every voter may be called upon to make a declaration against bribery." No person may vote in respect of a residential qualification who has not resided in Victoria for at least six months of the twelve preceding the election.12 10 Each elector has as many votes as there are vacancies, but not more than one vote can be given by any elector for any one candidate.13 The ballot papers contain the names of all the candidates, and the electors strike out the names of those for whom they do not wish to vote. If more names are left than there are vacancies, the paper is altogether void.1 Duplicate votes, and votes the legality of which the returning officer suspects, are reserved for future examination.15 The 1 Constitution Act Amendment Act 1890, § 224. 2 § 228. The returning officer may appropriate, upon due notice, the use for the polling day of any schoolroom built or supported wholly or partially by public funds or perpetual endowment (§ 229). 3 §§ 231-234. 6 § 237. 4 § 230. 5 § 235. 8 § 241. 9 SS 241, 242. 10 § 244. 12 § 241. 13 § 254. 14 * § 253, 254. 7 § 240. 11 § 249. 15 §§ 255, 256. CHAP. XXVI DECLARATION OF THE POLL 243 returning officer votes, in accordance with their directions, for blind or illiterate electors.1 Immediately upon the close of the poll, the officer in charge of each polling-place counts the votes in the presence of the scrutineers and poll clerk, and then transmits votes, documents, and results in a sealed parcel to the returning officer of the division, who, adding in the results of the polling station at which he has personally presided, declares the state of the poll, giving his casting vote where necessary. He then forwards the return endorsed on the writ to the authority issuing it.3 He also forwards to the Clerk of the Council or Assembly (as the case may be) all the papers of the election, which are then kept intact for two years, unless required as evidence, when they are accepted as what they profess to be in any court of justice. All officials engaged in the conduct of elections are liable to substantial penalties for neglect or misconduct.5 On the other hand, they are remunerated for their services.6 The offences connected with the conduct of elections (other than the negligence or misconduct of the officials) are five :bribery, treating, undue influence, wearing of badges, wagers on results.7 These offences have different consequences. 1. Bribery. The following acts constitute bribery : i. Making, promising, or procuring a gift or loan to an elector or other person to influence or as a reward for a vote. ii. Disposing or promising to dispose of a place or office with a similar object or motive. iii. Accepting such inducement and endeavouring to act in iv. Paying money knowingly to be used for such purpose, or vi. Payment by a candidate or agent of the hire of any con- 1 § 257. The provision for illiterate voters only applies to persons claiming 7 In the earlier stages of the proceedings there are various other offences in connection with false declarations. (Cf. §§ 63, 66, 73, 103, 146, 149, 156, 246.) Any person committing bribery is guilty of and punishable for a misdemeanour, and is incapable of voting at the election in respect of which the offence was committed.1 2. Treating. This is the offence of providing "meat, drink, entertainment, or provisions" for the purpose of influencing an election, or the acceptance thereof with that view. The person who provides the means of corruption is guilty of a misdemeanour and is rendered incapable of voting at the election, the person accepting is disqualified from voting merely.2 3. Undue influence consists of the application of threats or duress for the purpose of influencing a vote. The person guilty of the offence has committed a misdemeanour, and is liable to fine and imprisonment.3 4. Wearing of badges. No candidate before, during, or after an election may wear badges or provide them for the inhabitants of his constituency, upon penalty of a fine of £10 for each offence.4 5. Wagers on results. Any person making a wager upon the result of a parliamentary election is guilty of an illegal act, and is liable to a penalty not exceeding £20.5 In addition to these penalties, any candidate declared by a parliamentary election committee to have been guilty of bribery, treating, or undue influence is rendered incapable of being elected for a province during the five years following the declaration of the election, or for a district till the next general election." The validity of elections is decided upon by the "Committee of Elections and Qualifications" of the House to which the election refers. This committee is appointed at the commencement of each session by the President or Speaker, subject to the approval of the House, and consists of seven members willing to serve. In ordinary circumstances the committee 1 Constitution Act Amendment Act 1890, §§ 275-277. It is also provided (§ 282) that no contracts for loans or work or goods for the carrying on of an election can be enforced. 2 §§ 278, 279. 3 § 280. Moreover the mere carrying of an offensive weapon at election time by a person not duly authorised creates a liability to a penalty not exceeding £20. The offender may be apprehended and imprisoned till he can be brought before a justice (§ 285). § 281. 5 § 284. The punishment for election offences in Victoria does not appear to err on the side of severity. 4 6 § 283. A candidate is responsible for the acts of his authorised agents, unless it be proved that they were committed “without his knowledge, power, or assent" (§ 302). For election offences see also Crimes Act 1890, §§ 294-296. 7 §§ 291, 292. Four members must be present at each sitting of the committee (§ 296). CHAP. XXVI LEGISLATIVE POWERS 245 continues till the end of the session, and matters come before it by petition presented by an elector or candidate of the constituency to the President or Speaker within a limited period, and by them referred to the committee. The committee may confirm or alter a return, and deal with any matter touching the conduct of elections or the qualification of candidates, but it must not inquire into the correctness of any electoral roll.3 It may report any resolution to the House, and the House may thereupon take such action as it sees fit.* Costs may be awarded to and against the petitioners, and security for them must be given by the petitioners. The committee sits as an open court, unless it desires, for special reasons, to deliberate in private." 6 With regard to the publication of parliamentary reports, an important rule has been in force ever since the year 1850.8 It is sufficient for a defendant in any proceeding brought on account of matter published in any such report to produce a verified certificate from the President or Speaker or Clerk of either House to the effect that the report was published under the authority of Parliament or a committee thereof, and thereupon the defendant is entitled to a stay of proceedings." Moreover, in any proceeding caused by the publication of an extract from or abstract of such report, the defendant may produce the report and prove that he published bona fide and without malice, and he is thereupon entitled to a verdict of not guilty.10 Having examined the constitution of Parliament and the privileges of its members, we have to see what are its legislative powers and duties as a body. "Her The general power of legislation is conferred upon Majesty, by and with the Advice and Consent of the said Council and Assembly," by the first section of the Constitution Act.The power is given in very wide terms-" to make Laws in and " 11 1 Constitution Act Amendment Act 1890, § 293. 3 §§ 297, 299. 4 § 300. 8 11 2 §§ 301, 302. 7 § 296. 9 § 343. 10 § 345. § 13 Vic. No. 16 (N. S. W.) It will be remembered that by the former constitutions (5 & 6 Vic. c. 76, § 29, and 13 & 14 Vic. c. 59, § 14) the power of legislation was conferred on the Governor, not the Crown. It would seem that the new formula, while accentuating the delegatory character of the Governor, really creates much wider powers of legislation, by enabling the full scope of the prerogative to be exercised in conjunction with the colonial legislature. for Victoria, in all Cases whatsoever." Sweeping, however, as is the grant, and apparently simple its terms, it is not entirely free from ambiguity. It is unlikely that the legislature of Victoria should attempt to make laws elsewhere than in Victoria (though as a matter of fact the Crown's assent to Victorian legislation is often given in England). But what are laws for Victoria? That is a question which may arise at any moment, the decision being virtually left to the Crown, by the fact of its being made an essential party to all legislation. Besides this general power, however, certain special powers are expressly conferred on the Victorian legislature. They may be enumerated thus: 1. To alter or repeal the provisions of the Constitution Act, subject, however, to the conditions imposed by the next power until these have been repealed by the legislature itself. (18 & 19 Vic. c. 55, § 4.) 2. To repeal, alter, or vary the provisions of the Constitution Act. But a bill to alter the constitution of the Council or Assembly or the provisions of Schedule D (salaries, pensions, and grants) must not be presented to the Governor unless the second and third readings have been passed by an absolute majority of the members of the Council and Assembly respectively. (Constitution Act, § 60.) 3. To alter the qualifications of electors and members of the legislature, and to establish and vary electoral provinces or districts, to appoint, alter, or increase the members for any constituency, to increase the whole numbers of the Houses, to alter and regulate the appointment of returning officers, and to make provision for the holding of elections. (Constitution Act, § 61.) 4. To impose any customs duties, except that differential rates may not be levied. (Constitution Act, § 43.)1 5. To make laws for regulating the sale, letting, disposal, and occupation of the waste lands of the Crown in the colony, and of all mines and minerals therein. (Constitution Act, § 54.) 2 The power of amending the constitution has been freely exercised, but the somewhat inconsistent provisions of § 4 of the Constitution Statute and SS 60 and 61 of the Constitution Act have given rise, as might have been expected, to some little difficulty. The two points upon which doubts have arisen are the necessity of reserving amending bills for 1 This power has been slightly modified by the 36 Vic. c. 32. (Cf. ante, p. 232.) 2 Two other powers are expressly conferred upon the legislature by § 2 of the 18 & 19 Vic. c. 55 and § 55 of the Constitution Act respectively, but these are really executive not legislative powers. |