CHAPTER IX INAUGURATION OF THE NEW CONSTITUTION THE Act of 1842 provided that it should be proclaimed by the Governor within six weeks after his receipt of a copy, and that it should take effect within the colony from the day of the proclamation. The Governor received a copy of the statute on the 1st January 1843, and proclaimed the Act on the 5th.1 But much remained to be done before the scheme could be put into operation, and the Act itself obviously contemplated delay when it provided 2 that the powers of the existing Council should continue until the actual issue of the writs for the new body. Accordingly, on the 24th January 1843, the old Council met, for its last session, to make the necessary preparations for the inauguration of its successor.3 On the 23d February the governor gave his assent to an Electoral Act which regulated the preliminaries. On the same day the old Council adjourned sine die, and did not again meet.1 The Electoral Act (6 Vic. No. 16, N. S. W.) divided the colony of New South Wales into eighteen electoral districts, of which one was the District of Port Phillip,5 twelve were county constituencies in New South Wales proper, and five town constituencies, all, with the exception of Melbourne, within New South Wales proper. There were six singlecounty constituencies and six groups, three single town 1 Gov. Gazette (N. S. W.) 5th Jan. 1843. The Act had received the royal assent on the 30th July 1842. England and Australia were then a long way apart. 2 § 53. 3 Votes and Proceedings (N. S. W.), 1843, p. 1} (Part I.) 4 Do., p. 12. 5 § 1. constituencies (Sydney, Melbourne, and Parramatta) and two groups. The District of Port Phillip was to return five members, the county of Cumberland and the town of Sydney two each, all the other constituencies one each. The county constituencies comprised only land within the limits of location. The towns having special representation of their own were excluded from the county constituencies.5 The boundaries of certain counties had already been fixed; those of the others were to be settled, for the purposes of the Act, by proclamation." The Mayors of Sydney and Melbourne are to be returning officers for their own towns, unless they object, in other cases returning officers are to be appointed by the Governor from amongst the electors.9 There are to be four classes of polling-places, with their 1 § 2. 3 lbid. (Sydney and Melbourne only by recital.) 2 § 1. 4 Ibid. Ibid. The result of the Act is to group the constituencies thus District.-Port Phillip. 5 members. 6 Note the limitation. It leaves the precise constitutional position of the new counties somewhat doubtful. 8 We shall see that one of them, at any rate, did object. 7 § 3. 9 § 6: The returning officer must make a declaration before entering upon his duties (§ 60). CHAP. IX ELECTION MACHINERY 79 appropriate officials to draw up electoral lists, and decide upon questions arising therefrom, viz.— 1. In the towns of Sydney and Melbourne.-Each ward to be a polling-place, electoral rolls to be prepared by collectors appointed by the Mayor for each ward, and kept by the Town Clerks, Revision Courts of aldermen and assessors.1 2. In the town constituencies of the Cumberland and Northumberland Boroughs. Each borough to be a polling-place, electoral rolls to be prepared by the Chief Constables, and Revision Courts to be held in each place of Petty Sessions having a clerk of the bench by the police magistrates or the senior resident magistrate, with the other magistrates as assessors.2 The electoral lists to be sent to and kept by the returning officers.3 3. In other constituencies.-Each place for holding Petty Sessions, where there is a clerk of the bench, to be a polling-place, electoral rolls and Revision Courts as in the last instance.1 4. Where there are any deficiencies, not provided for in the first three instances, they are to be met by the appointment of the Governor.5 We may gather from these details what an important part the recently created corporations of Sydney and Melbourne would play in inaugurating the new constitution. We now come to the process of election, and it will be well. perhaps, for the sake of clearness, to trace the steps of the process in chronological order. They are as follow 1. The issue of the writs. For the first election this was required to be within twelve months from the proclamation of the Constitution Statute, in subsequent cases within twelve months from the dissolution of the last Council.7 The writs are directed to the various returning officers, they name in each case the occasion of the election, the day for nomination of candidates, and for holding a poll if necessary, and direct the officer to "return" the name of the person or persons duly elected. The writs are issued by the Governor.9 8 2. Notice of the election by the returning officer. This must be given within four days after receipt by him of the writ.10 3. The meeting for nomination. Held at the chief polling-place in the electoral district, under the presidency of the returning officer, on the day named in the writ. more candidates are nominated than there are vacancies, the returning officer declares the candidates nominated to be duly elected. If more are If no 1 §§ 7, 8, 13, 14: Note the intimate connection thus created between the municipal and parliamentary elections. + § 7. 7 § 21. 2 § 17. § 19. 65 & 6 Vic. c. 76, § 22. 9 Ibid. 10 § 28. By § 20 the day for the election must be fixed not less than 10, nor more than 30 days from the date of the writ. nominated, the returning officer calls for a show of hands for each candidate, and declares the election thereupon "unless a poll be demanded by some one of the Candidates,1 or by not less than six electors on his behalf." If a poll be duly demanded, the polling takes place from 9 o'clock till 4 at the various polling-places in the district, on the day fixed by the writ.2 4. The Poll. By signed voting papers, stating the place of the voter's qualifying property, handed to the returning officer by the voter.3 If required by two electors, the returning officer must put any of the four following questions, or administer one or both of the two following oaths to a person claiming to vote :— Questions (i) Identifying signature upon voting paper. (ii) Identifying claimant with some person on the Electoral Rolls. (iii) Enquiring whether claimant has voted before at the election. (iv) Enquiring whether his property qualification described on the Roll still exists. Oaths (i) Affirming the answer to Question ii. 5. The Return. The deputies at the minor polling-places (where such exist) seal up the voting papers received by them and deliver them to the returning officer.5 The latter examines the votes, and at the place of nomination openly declares the result of the poll. In case of an equality the returning officer has a casting vote, but no officer or deputy may give an ordinary vote in his own polling district. The returning officer then endorses the names of the successful candidates on the writ, and sends it to the Governor.7 (This is the "return.") He also forwards, with the writ, the voting papers.8 6. The completion of title to a seat. elected member is required Before taking his seat each newly to take a rather stringent oath or affirmation of allegiance to the Crown. This concludes the proceedings at an ordinary election. But if the return is disputed, it becomes necessary to decide the dispute. The Electoral Act contains a rather remarkable scheme for such contingencies. Within three days of the first meeting of the Council, the Governor is to nominate two persons, not being members of the Council, the Council itself is to elect two of its members, and CHAP. IX THE ELECTORAL COURT 81 the Chief-Justice is to name a barrister or advocate of five years' standing.1 These five persons, when convened by the Governor,2 form a court for the trial of election disputes, the Chief-Justice's nominee acting as president.3 Their jurisdiction extends to all cases respecting disputed returns brought before them by the Governor, but they are bound by the statements of the electoral rolls.5 The parties bringing the complaint, who must be either a candidate or at least one-tenth of the voters on the roll of the district, present a petition to the Governor, who refers the matter to the Electoral Court, and sends a copy of the petition to the Council. The Court, which must deal with the merits of the case apart from technicalities, regulates its own proceedings, but must pronounce a decision within five sitting days, and such decision is final. The decision may reject the candidate returned, or seat a candidate not returned, or may declare the election void altogether, in which case a new writ is to be issued.10 Bribery proved against a candidate disqualifies him from sitting in the Council till the next general election,11 and the offences of bribery and personation are also made criminally punishable.12 This method of deciding election disputes was a striking improvement upon the corresponding scheme then at work in England. When the House of Commons in the seventeenth century finally wrested the right of deciding election questions from the Crown, they devolved its exercise upon committees of the whole House constituted ad hoc. With the development of the party system, these committees came to be elected on party lines, and the legal and political views of their members generally coincided in the most striking way. The defeat of a ministerial candidate on an election question, however weak his case, was the signal for the fall of his party in the House. Walpole resigned the reins of government, after having held them for thirty years, on the decision of the House upon the Chippenham election in 1742.13 In the year 1770 a statute,' 13 The Chippenham question was in form a dry point of law (cf. Hansard, 1st series, xii. 403). See also Mr. Bryce's account of a similar tendency in American politics in his American Commonwealth, i. 59, etc. 14 10 Geo. III. c. 16, amended by 11 Geo. III. c. 42 and 53 Geo. III. c. 71. G |