§ 80. “Laws in Force in Each State … Relating to Elections.”

This section provides that in the election of senators for a State the laws for the time being in force in such State relating to elections for the more numerous House of Parliament of the State shall, so far as practicable, be applied. To this general enactment there are two limitations; one being that such electoral machinery laws are to be applicable to senatorial elections only until the Parliament otherwise provides; and the second being that the operation of the section is to be “subject to this Constitution.” The latter phrase seems to cover two cases; (1) express provisions in the Constitution relating to elections—such as the prohibition against plural voting, and the provision that until the Parliament otherwise provides, each State shall be one electorate; and (2) laws passed by the States under the authority of the Constitution—such as laws determining the time and places of elections and provisional laws prescribing the method of choosing senators. Accordingly the section is merely provisional and temporary. It may be superseded in part by State legislation, under sec. 9, and superseded altogether by federal legislation.

The words “until the Parliament otherwise provides,” seem, by virtue of sec. 51—xxxvi., to give the Federal Parliament (subject of course to the express limitations imposed by the Constitution) a general power to legislate as to “laws relating to elections” for the Senate—words which have a wider scope than the words “laws prescribing the method of choosing senators.” The executive conduct of the elections, however, will remain with the States. (See Note, § 74, supra.)

Section 31 of the Constitution, making preliminary application of State election laws to the choice of members of the House of Representatives, is the same in substance as the section now under review. Both sections, as originally framed, enumerated in detail the particular branches of the electoral law, to which they were intended to apply (see Historical Note, supra); but at the Melbourne session of the Convention this enumeration was replaced by general words.

The omission of the particular words, instead of weakening, rather strengthens the section by rendering it more general, and less restricted than the original one. The section, as it stands, is most comprehensive, and applies, to senatorial elections in a State, all State laws relating to the conduct of and proceedings at elections of members of the popular Chamber in that State; the appointment of returning officers, their deputies and assistants, and their respective powers and duties; the publication of the mandate contained in the senatorial writs; the preparation of voters' rolls; the preparation of ballot papers; the nomination of candidates; the conditions of nomination—such as the signature of nomination papers by a certain number of electors, and the lodging of a deposit with each nomination paper as a guarantee of bona fides; the withdrawal of nominations; the notification of the time and places of polling as fixed by State laws under section 9; the recording of votes by secret ballot on the day of polling; the proof of qualification and proof of identity of voters; questions to be answered or oaths taken by persons seeking to vote whose qualification or identity may be challenged; the maintenance of order at the polling places; the time of opening and closing thereof; the counting of votes, the certification of returns, and the declaration of the poll.

Failure to choose senators81.

11. The Senate may proceed to the despatch of business, notwithstanding the failure of any State to provide for its representation in the Senate.

HISTORICAL NOTE.—Clause 11, chap. I., of the Commonwealth Bill of 1891 was as follows:—

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“The failure of any State to provide for its representation in the Senate shall not affect the power of the Senate to proceed to the despatch of business.”

At the Adelaide session, 1897, the clause was adopted in the same words; and at the Melbourne session, after the fourth report, it was altered to its present form.