It would seem that the words of the Constitution do not justify this view. The power of the Parliament to deal with the qualification is derived from the provision in sec. 30 that "until the Parliament otherwise provides" the qualification of Federal electors in each State shall be that prescribed by the State for the electors of the Legislative Assembly of the State. By virtue of that provision, the Parliament has power (sec. 51-xxxvi.) to make laws for the peace, welfare, and good government of the Commonwealth with respect to the qualification of federal electors. The Constitution does not speak of a “uniform qualification" (except incidentally in sec. 128), and does not restrict the Parliament to prescribing a complete franchise or none.

It was even suggested by Mr. Higgins and Mr. O'Connor (Conv. Deb., Melb., pp. 1846-7) that, as a matter of strict law, the Parliament may prescribe different franchises in different States. This proposition seems much too broad; it would seem (see Note § 161, "Peace, Order and Good Government," infra) that a federal law cannot discriminate between one State and another. But here a diversity of franchise in the different States is recognized by the Constitution itself, and it may be fairly argued that any federal law of uniform application, purporting to define in part or in whole the federal qualification, would-subject to the rights reserved by this section-be good and valid, notwithstanding that it did not wholly remove this diversity. This contention may be best explained by two illustrations. It seems clear that the Federal Parliament might lawfully pass a prohibitive law (somewhat in the manner of the Fifteenth Amendment of the Constitution of the United States) in such terms as these :

Notwithstanding the qualification which may be prescribed by the law of a State as the qualification of electors for the more numerous House of the Parliament of the State, no person otherwise qualified by the law of the State shall be prevented from voting at elections for either House of the Parliament of the Commonwealth by reason only that such person does not possess a property qualification or a qualification based on income or earnings."

There would be no want of uniformity in such a law; on the contrary, it would remove a discrimination which at present exists. True, the whole franchise would not be uniform, but it would be more nearly uniform than at present, and the diversity would be due, not to the Federal Parliament, but to the Constitution itself. (Burgess, Political Sc. II. p. 42.) Again, it is conceived that it would also be competent for the Parliament to prescribe a franchise affirmatively by such a law as the following :—

"Every male adult subject of the Queen, who has been resident for one year within the Commonwealth and for three months in any federal electorate or electoral division shall, unless disqualified by this Act, be entitled to vote in such division at the election of members of either House of the Parliament. Persons of unsound mind, or in receipt of eleemosynary aid, or under sentence for any offence, are disqualified. Provided that this Act shall not be deemed to disqualify any adult person who under section 41 of the Constitution of the Commonwealth has a right to vote at such election.”

In such a law, again, there would be no want of uniformity; it would be distinctly in the direction of uniformity; and the diversity which still remained would be due, not to the Federal Parliament, but to the particular individual rights reserved by the Constitution itself.

To hold that such laws as these were unconstitutional, because they fell short of establishing a uniform franchise throughout the Commonwealth, would be to hold that the Federal Parliament is powerless to move a single step in the direction of uniformity unless it is prepared to adopt full manhood and womanhood suffrage. This section, it is contended, imposes no such prohibition. It does not forbid the Parliament to pass franchise laws which do not fulfil certain conditions, but preserves the right of certain persons, described in the section, to vote notwithstanding such laws.

The word "has" apparently refers to rights in existence at the establishment of the Commonwealth; the word "acquires" to rights acquired after that time. At Adelaide (Conv. Deb., pp. 1191-7) Mr. Barton endeavoured to secure the limitation of

the clause to rights existing at the establishment of the Commonwealth, but was defeated. At Melbourne (Conv. Deb., pp. 1840-53) he endeavoured to limit it to rights acquired, before or after the establishment of the Commonwealth, under a State law in force at the establishment of the Commonwealth. This he ultimately withdrew on the

insertion of the word "adult."

It is clear that a right under this section to vote at federal elections can be acquired after the establishment of the Commonwealth, but it is not so clear that such a right can be acquired after the passing of a federal franchise law, or under State laws passed after the passing of such federal law. Three possible interpretations may be suggested:

(1.) That the right may be acquired at any time, under a State law passed at any time.

(2.) That the right may be acquired at any time, but only under a State law passed before a federal franchise is fixed.

(3.) That the right must be acquired by the "adult person " concerned before the federal franchise is fixed.

It seems clear from the following extracts that the first of these interpretations was not intended by Mr. Holder, the author of the clause :

:

"There is a stage up to which the franchise is purely a State question, and the regulation of the franchise is within the power and authority of the State. The moment that ends is when the Federal Parliament passes a law fixing the franchise. What I want is that so long as the State is free to fix the franchise, any franchise they give shall be protected afterwards. The right of the State to alter the franchise continues, not up to the time of the formation of the Constitution, but up to the time that the Federal Parliament frames a franchise, and I want all the rights granted up to that time preserved in the future. [Mr. Peacock: If the Federal Legislature has legislated?] No. I want the States to have their rights with regard to the franchise unimpaired up to the day when the federal franchise is indicated, and that whatever the franchise shall be at that date it shall be preserved, and so that no person having a right up to that date shall have it taken from him, and that this shall apply not only to South Australia, but also to other colonies who may widen their franchise before the federal franchise is provided." (Mr. Holder, Conv. Deb., Adel., p. 1195.)

"I want the right of the State Parliament to be protected up to the moment when the Federal Parliament moves." (Mr. Holder, Conv. Deb., Melb., p. 1843.)

These quotations make it clear that Mr. Holder did not contemplate the first interpretation, but his expressions seem to waver between the second and the third. In one passage he speaks of persons having a right when the federal franchise is framed-words which seem to contemplate the third interpretation; whilst elsewhere he speaks of protecting the State franchise as it existed at that date-words which involve the second interpretation. The latter seems to accord better with his general object of securing the federal franchise to women in those States where adult suffrage might exist when the federal franchise was framed.

Let us illustrate these distinctions. Suppose that the Federal Parliament fixes a federal franchise, such as suggested above, for male adults; and that afterwards Victoria passes a law extending the Victorian franchise to women. In South Australia the franchise was extended to women before the federal franchise was fixed. Then the three questions are :—

(1.) Are Victorian women entitled to vote at federal elections?

(2.) Is a South Australian woman, who has come of age since the federal franchise was fixed, entitled to vote at federal elections; or

(3.) Are only those South Australian women who were qualified voters at the date of the federal law entitled to vote at federal elections?

Mr. Holder's intention was that Victorian women, under those circumstances, should not be so entitled; though if the Victorian law had been passed before the federal franchise, it would have been otherwise. But he probably intended that South Austra

lian women should be entitled to vote, whether actually qualified before or after the federal law, because the franchise under which they claim was in existence before the federal law.

That being the apparent intention, as collected from the debates, it remains to consider the real intention as expressed by the section itself. "No adult person who has or acquires a right" to vote at State elections" shall, while the right continues, be prevented by any law of the Commonwealth " from voting at federal elections. The Federal Parliament being empowered to deal with the qualification, it is not to be presumed that it was intended that the State Parliament should be able, after the Federal Parliament had legislated, to confer by fresh legislation any further right of voting at federal elections. Apparently the only logical way to gather this interpretation from the section, is either (1) to construe acquires as meaning "acquires before the framing the federal franchise ; " or (2) to construe the word "prevented" as descriptive of a deprivation taking effect at the time of passing of the federal law-not a continuous deprivation enuring under the federal law. The effect of both these readings is the same; and it is submitted that this is the true construction-though it may certainly be argued that "acquires " is not expressly limited in point of time, and that a law which restricts the franchise to certain persons "prevents" all other persons from voting so long as it remains in force.

66

If this be granted, it becomes necessary to consider when a person "acquires" a right to vote; at the time when he or she-individually becomes qualified, or at the time when the franchise under which he claims is enacted. Apart from the context, there could be hardly any doubt that no person can be said to have a right to vote until his qualification is complete. The other construction can only be argued on the assumption that a law giving the franchise to a certain class of persons confers a potential or inchoate right on all persons of that class-born or unborn-from the date of the passing of the law; or else that the section refers to the right of the person, not as an individual, but as one of a class. Either construction is very forced. A right would seem to mean a complete right; and the words "no adult person" make no allusion to a class, but single out the case of each individual person to be dealt with on its merits. No mention is made of the law under which such person claims the right, and it would seem that, if the date when the right was acquired is material, we must look to the date when it was actually acquired by the person in question, not the date when it was conferred by law upon all persons of a certain class.

Oath or affirmation of allegiance.

42. Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution.

140

CANADA. Every member of the Senate or House of Commons of Canada shall, before taking his seat therein, subscribe before the Governor-General or some person authorized by him the oath of allegiance contained in the fifth Schedule to this Act.-B.N.A. Act, 1867, sec. 128.

HISTORICAL NOTE.-Clause 5, Chap. I., of the Commonwealth Bill of 1891 was in almost identical words, and was adopted at the Adelaide session, 1897. At the Melbourne session, verbal amendments were made before the first report and after the fourth report. In the Bill as introduced into the Imperial Parliament (when the Constitution was placed as a schedule to the Act), the words "to this Constitution" were added after "schedule" in this section.

There are two forms of oath known in modern legal and official proceedings; first the adjuration by invocation of the Deity, with uplifted hand, commonly called the Scotch oath; secondly, the ordinary oath on the Bible, ending with the words "So help me God." An affirmation is a solemn assertion or denial, omitting the invocation of the Deity.

Since the year 1534 it has been customary for members of both Houses of Parliament to take the oath of allegiance. (Anson, Law and Custom of the Constitution, 3rd ed. p. 6.)

An unsworn member is only debarred from sitting or voting; he is entitled to all the other rights, privileges, and immunities of a member. His seat, however, is liable to forfeiture if he fails to attend the House for a specified time. and 38.)

(See sections 20

By the English Parliamentary Oaths Act, 186€ (29 and 30 Vic. c. 19), one uniform oath, containing no reference to Christianity, was prescribed for members of the House of Commons. By the Promissory Oaths Act, 1868 (31 and 32 Vic. c. 72), the form of oath which appears in the schedule to this Constitution was adopted. In 1888, an Act was passed (51 and 52 Vic. c. 46) enabling members of the House of Commons, who objected to be sworn on the ground that the taking of an oath was contrary to their religious belief, to make a solemn affirmation in lieu of an oath. The affirmation prescribed begins with the words "I, A. B., do solemnly, sincerely, and truly declare and affirm," followed by the other words required by law, and omitting any imprecation. This Act was passed as a result of Mr. Bradlaugh's celebrated contest with the House of Commons. (Attorney-General v. Bradlaugh, 14 Q.B D. 667.)

Member of one House ineligible for other.

43. A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House141.

CANADA. A Senator shall not be capable of being elected or of sitting or voting as a member of the House of Commons -B.N.A. Act, 1867, sec. 39.

HISTORICAL NOTE.-Clause 33, Chap. I., of the Commonwealth Bill of 1891 provides that "A Senator shall not be capable of being elected or of sitting as a member of the House of Representatives," and the same clause was adopted at the Adelaide session, 1897. At the Sydney session, a suggestion of the Legislature of Tasmania, to omit the clause and substitute a provision applying to both Houses, was adopted. (Conv. Deb., Syd. [1897], pp. 459-60, 992-3, 1011.) At the Melbourne session, verbal amendments were made before the first report, and after the fourth report.

In Chap. V. of the Commonwealth Bill of 1891 there were two clauses (10 and 11) prohibiting a member of either House of the Federal Parliament from being chosen or sitting as a member of either House of a State Parliament, and providing that if a member of a State Parliament were elected to the Federal Parliament, his seat in the State Parliament should become vacant. (Conv. Deb., Syd. [1891], pp. 877-83.) In the Adelaide draft of 1897 these clauses were omitted, and in Committee, Sir Edward Braddon moved their insertion. It was thought, however, that it might be left to each State, if it thought fit, to disqualify members of the Federal Parliament from sitting in the State Parliament, and the clauses were negatived. (Conv. Deb., Adel., 1181-2.) At the Sydney session, a suggestion by the Legislature of Tasmania, that a member of a State Parliament should be incapable of sitting in either House of the Parliament of the Commonwealth, was negatived. (Conv. Deb., Syd. [1897], pp. 996-1011.)

§ 141. "A Member of the Other House."

"English peers are ineligible to the House of Commons, as having a seat in the Upper House; and Scotch peers, as being represented there by virtue of the Act of Union; but Irish peers, unless elected as one of the representative peers of Ireland, may sit for any place in Great Britain." (May's Parl. Prac. 10th ed. p. 229.)

A provision to this effect, founded on the constitutional practice of the Imperial Parliament, is common to the Constitutions of all the Australian colonies.

Disqualification1+2.

44. Any person who

(i.) Is under any acknowledgment of allegiance, obedience, or adherence143 to a foreign power,

or is a subject or a citizen1 or entitled to the
rights or privileges of a subject or a citizen
of a foreign power: or

(ii.) Is attainted of treason15, or has been convicted
and is under sentence, or subject to be
sentenced, for any offence1 punishable under
the law of the Commonwealth or of a State
by imprisonment for one year or longer or
(iii) Is an undischarged bankrupt or insolvent or
(iv.) Holds any office of profit under the Crown147, or
any pension1s payable during the pleasure of
the Crown out of any of the revenues of the
Commonwealth or

(v.) Has any direct or indirect pecuniary interest in
any agreement 149 with the Public Service of
the Commonwealth otherwise than as a
member and in common with the other
members of an incorporated company consist-
ing of more than twenty-five persons :

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

But sub-section iv. does not apply to the office of any of the Queen's Ministers of State for the Commonwealth150, or of any of the Queen's Ministers for a State, or to the receipt of pay, half pay, or a pension by any person as an officer or member of the Queen's navy or army152, or to the receipt of pay as an officer or member of the naval or military forces of