§ 76. “Each Elector shall Vote only Once.”

By this provision a federal elector is forbidden to vote more than once at any senatorial election. Without such an inhibition it might have been possible for an elector to record his vote in every electoral division throughout a State, in which his name was registered in the State rolls, and to which he could journey on the day of polling. The possibility of plural voting at a senatorial election would not, owing to the magnitude of the constituency, be so great as at a general election of members of the House of Representatives in which the constituencies would necessarily be smaller and more numerous. The application of the restriction to the election of members of both Federal Chambers is a strong proof of the liberal policy which guided and influenced the deliberations of the Federal Convention.

The mode of enforcing the inhibition formed the subject of some debate in the Convention. At the Adelaide session a provision was added to the effect that if an elector voted more than once at the same election he should be guilty of a misdemeanour. At the Sydney session a recommendation was received from both Houses of the Tasmanian Legislature that the penalizing words should be omitted, as being foreign to a Constitution, although no objection was raised to another section (46) which created an offence and provided a penalty. In supporting the omission of the words, Sir P. O. Fysh urged, at the Sydney Convention, that the bill should not embrace anything except what was necessary for the framing of the Constitution, and that any matters which belonged to the criminal law, or the electoral laws of the States, had better be left as they were. As far as the criminal law was concerned, it should not be part of the Constitution. (Conv. Deb., Syd., p. 417.)

“There seemed to be a considerable number of members at Adelaide who wished to have this provision about a misdemeanour inserted, and it was inserted in accordance with the wish of the majority. I am, myself, of opinion that so far as you can you should leave the Constitution to deal simply with matters of necessary machinery. I am not, myself, strongly in favour of a provision of this kind, and I think it can otherwise be provided for; but I am entirely in the hands of the Committee. If there is such a desire on the part of the Committee, I shall not object to the retention of these words, although I admit the force of the argument that the Constitution Act is not the place for making offences against the criminal law, or for prescribing penalties. That is perfectly true; but the object in the first instance seemed to be to obtain a statement of this kind in the Constitution. The object seemed to make it plain on the face of the Constitution that whoever offended against the law of one man one vote should be in danger of the police. I think I pointed out in Adelaide, and hon members mostly agreed with me, that where a man does wilfully and deliberately what is against the express provisions of an Act, it is a misdemeanour, and there is no necessity to place that in an Act of Parliament.” (Mr. Edmund Barton, id. p. 417.)

  ― 425 ―

On a division the words declaring plural voting at a senatorial election to be a misdemeanour were struck out. A breach of a direct statutory prohibition, however, is a misdemeanour. (See Note, § 123, infra.)

Method of election of senators. Times and places.

9. The Parliament of the Commonwealth may make laws prescribing the method of choosing senators77, but so that the method shall be uniform for all the States78. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State.

The Parliament of a State may make laws for determining the times and places of elections of senators79 for the State.

UNITED STATES.—The times, places, and manner of holding elections for senators and representatives, shall be prescribed in each State by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the place of choosing senators.—Const., Art. 1, Sec. iv., subs. 1.

HISTORICAL NOTE.—Clause 10, Chap. 1., of the Commonwealth Bill of 1891 was as follows:—

“The Parliament of the Commonwealth may make laws prescribing a uniform manner of choosing the senators. Subject to such laws, if any, the Parliament of each State may determine the time, place, and manner of choosing the senators for that State by the Houses of Parliament thereof.” (Conv. Deb., Syd. [1891], p. 599.)

At the Adelaide session, 1897, the same clause was adopted with the omission of the words “by the Houses of Parliament thereof.” In Committee, Mr. Deakin suggested “method” as preferable to “manner,” but no amendment was moved. (Conv. Deb., Adel., pp. 672-4.)

At the Sydney session, a suggestion by both the Houses of the Parliament of Tasmania, to leave the manner of choosing senators to the States altogether, was negatived. A suggestion by the Legislative Assembly of Victoria, to insert “the times, places, and” before “a uniform manner,” in order to enable the Federal Parliament to legislate as to the times and places of elections, was agreed to. (Conv. Deb., Syd. [1897], pp. 987-8.)

At the Melbourne session, after the fourth report, the clause was altered to its present shape, the determination of times and places being again left to the States. In Committee, Mr. Symon pointed out that this was an alteration in substance; but no amendment was moved. (Conv. Deb., Melb., pp. 2445-7.)