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Disputed elections.

47. Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election155 to either House, shall be determined by the House in which the question arises.

UNITED STATES.—Each House shall be the judge of the elections, returns, and qualifications of its own members.—Const. Art. I. sec. 5, sub-sec. 1. CANADA.—Until the Parliament of Canada otherwise provides, all laws in force in the several Provinces at the Union relative to…the trial of controverted elections and proceedings incident thereto, the vacating of seats of members…shall respectively apply to elections of members to serve in the House of Commons for the same several Provinces.—B.N.A. Act, sec. 41.

HISTORICAL NOTE.—The Commonwealth Bill of 1891, clause 21, Chap. I., provided that “If any question arises respecting the qualification of a senator or a vacancy in the Senate, the same shall be determined by the Senate.” Clause 44 made a similar provision in the case of the House of Representatives.

At the Adelaide session, 1897, the provision was that “Until the Parliament otherwise provides, any question respecting the qualification of a member, or a vacancy in the Senate, or a disputed return, shall be determined by the Senate;” and similarly for


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the House of Representatives. In Committee, Sir Edward Braddon proposed to substitute “High Court” for “Senate.” Mr. Wise, however, argued that questions of qualifications and vacancies ought to be decided by the House, though disputed returns ought to be decided by the High Court. Sir Edward Braddon withdrew his amendment, and on Mr. Wise's motion the words “or a disputed return” were omitted, with a view to dealing with the matter in another clause. (Conv. Deb., Adel., pp. 680–2.) Subsequently Mr. Barton proposed a new clause (48 A):—

“Until the Parliament otherwise provides, all questions of disputed elections arising in the Senate or the House of Representatives shall be determined by a federal court or a court exercising federal jurisdiction.” This was agreed to. (Conv. Deb., Adel., p. 1150.)

At the Sydney session, 1897, a suggestion by the Legislature of Tasmania, to omit the new clause and restore “disputed elections” to the “qualifications and vacancies” clauses, was considered. It was pointed out that there might be a difficulty as to the first election, before the Parliament could make suitable provision. The whole question was ultimately left to the Drafting Committee. (Conv. Deb., Syd., 1897, pp. 464–6, 993, 1034–5.) The Drafting Committee struck out all three clauses and substituted a clause substantially in the form of this section. At the Melbourne session, drafting amendments were made before the first report and after the fourth report.

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