Puttin’ on the writs

Last week we talked about when the Legislative Council would first sit in 2019. This week we continue our series on election-related issues with a look at the election writs – what they are and why they matter.

A writ is a written command issued by someone with legal authority, such as a court or a Head of State, requiring a specific action. In NSW, all elections are held according to writs. An election writ is the official document that orders that an election be conducted and records the results. If you’ve ever wondered how an election really begins – the writs are the answer.

An election writ is the formal way of ensuring that elections are conducted under the right authority and in the correct way. It’s important that something as fundamental to our democracy as an election be managed by a process that is public, consistent, and apolitical. Writs, as the official documents that regulate this process, ensure this is the case. Election writs may not be very exciting but they are very important.

The NSW Constitution states that all elections must be held according to writs issued by the Governor (s 11A). While the Constitution provides legal authority for the election writs it doesn’t tell us everything. The Electoral Act 2017 (which replaced the repealed Parliamentary Electorates and Elections Act 1912) is the legislation that defines what details must be included in the writs and the procedures relating to them.

The Governor issues the writs to the Electoral Commissioner, instructing the Commissioner to hold an election and the Electoral Commissioner returns the writs to the Governor when the election is over.

An election writ is issued for each electorate. This means that while 93 separate writs are issued for the Legislative Assembly, only one writ is issued for the 21 available seats in the Legislative Council as members of the upper House are elected to represent NSW as a single electorate.

The election writ also includes the due date for candidate nominations, the date on which the election will be held and the due date for the writ to be returned. Writs trigger different parts of the election process and determine what the Houses can do during that process. For instance, the NSW Constitution prevents the Legislative Council from conducting any business until the writs are returned.

So how does it all happen?

On the completion of a 4 year term, the Legislative Assembly expires. On the Monday after the expiration of the Assembly, the Governor must issue the writs. This year, the Legislative Assembly will expire on Friday 1 March and so the writs will be issued on Monday 4 March. The writs for both Houses must be issued on the same day and must specify the same election date so that all available seats in all electorates are elected on the same day. The Electoral Commissioner has 60 days from the date the writs are issued to return them.

After the election is held and the votes have been counted, the writs must be returned to the Governor with the names of the elected candidates. The Electoral Commissioner certifies the name of each elected candidate on each Legislative Assembly writ and the names of all 21 elected candidates to the upper House on the back of the Legislative Council writ. Once delivered to the Governor, the election is concluded and the Legislative Council must meet no later than the 7th day after the date for the return of the writs.

This is the Legislative Council election writ that instigated the election of the Legislative Council in 2015. It includes the date of election and the due date for candidate nominations.