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§ 129. “He.”

The personal pronoun “he” here used in introducing the qualification of members, being in the masculine gender, naturally suggests the query whether women are disqualified by the Constitution. This cannot be answered without considering some of the other qualifications required. Thus, a member must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become an elector. Are persons having the right to vote and otherwise constitutionally qualified, entitled to be nominated for election irrespective of sex? If the pronoun “he” had not been made the subject of an express interpretation by an Imperial Act, there would be little doubt that males only would be qualified. By the Interpretation Act (1889), 52 and 53 Vic. c. 63, re-enacting 13 and 14 Vic. c. 21, commonly known as Lord Brougham's Act, it is declared (sec. 1) that “In this Act and in every Act passed after the year 1850, whether before or after the commencement of this Act, unless the contrary intention appears, words importing the masculine gender shall include females.” The Constitution of the Commonwealth being embodied in an Imperial Act may be fairly considered as capable of interpretation by the anterior Imperial Act. (See Note, § 330, infra.) If this be the true construction then “he” includes “she” unless the contrary intention appears.

The use of the Interpretation Act in the construction of an electoral law was considered in England in the case of Beresford Hope v. Lady Sandhurst (1889), 23 Q.B.D. 79. In this case the question was whether a woman was capable of being elected a member of the London County Council. It depended on the meaning of several Acts of Parliament connected by references to them in the Local Government Act of 1888. By sec. 2 of that Act it was provided, that a County Council should be constituted in like manner to the Council of a Borough divided into wards. Reference had, consequently, to be made to the Municipal Corporations Acts in order to ascertain who were qualified to vote for and to become members of the County Council. By the Municipal Corporations Act (1835), 5 and 6 Wm. IV. c. 76, s. 9, the municipal franchise was confined to “male persons of full age.” In 1869 that section was repealed by the Act 32 and 33 Vic. c. 55, sec. 1, which re-enacted it with the word “male” omitted. Sec. 9 of that Act declared that wherever therein “words occur which import the masculine gender the same shall be held to include females for all purposes connected with and having reference to the right to vote on the election of councillors, auditors, and assessors.” The qualifications


  ― 476 ―
of burgesses and councillors were further dealt with in the Consolidating Municipal Corporation Act, 1892; (45 and 46 Vic. c. 50), sec. 11, sub-sec. 2, which enacted that “a person shall not be qualified to be elected or to be a councillor unless he is enrolled and entitled to be a burgess;” whilst sec. 63 enacted that “for all purposes connected with and having reference to the right to vote at Municipal elections words in this Act importing the masculine gender include women.” In this state of the law Lady Sandhurst was elected a member of the County Council. An application was made to the High Court to remove her from the office. On her behalf it was argued that the true effect of the Act of 1892 was to give a right to women to sit in the Municipal Councils, and therefore in the County Council: that as there was nothing to restrain the generality of the words, the provisions of Lord Brougham's Act should be applied, and as a woman was qualified to vote she was qualified to be elected.

The majority of the Court of Appeal (Coleridge, C.J., Cotton, Lindley, Fry, and Lopes, L.JJ.) were of opinion that, if the argument stood there, it could not be denied that there was a very strong case in support of Lady Sandhurst's claim; that there was much to be said in favour of applying the language of Lord Brougham's Act, and holding that as a woman was qualified to elect, although the masculine gender was used, she would be qualified also to be elected. Unfortunately for that argument, which by itself would be very strong, there was the 63rd section which appeared to exclude the operation of Lord Brougham's Act, by limiting the right of women to the right to vote and thus excluding the right to be elected. Lady Sandhurst was accordingly held to be unqualified. Lord Esher, M.R., entertained a stronger view than his learned colleagues, and said, that, but for sec. 9 of the Act of 1869, succeeded by sec. 63 in the Act of 1882, he would have come to the conclusion that women were not intended to be either electors or councillors, and that those sections clearly limited this qualification of women to that of electors.

In the Constitution of the Commonwealth there is no such section as that held to be fatal to Lady Sandhurst's claim. Consequently, it is quite possible that the Imperial Interpretation Act may be held to apply to the interpretation of the pronoun “he.” If that be so, a woman qualified as an elector in South Australia, or in Western Australia, would be qualified to be elected a member of the Federal Parliament, not only in her own State, but in any other State. The question of qualification, whenever legally raised, will have to be determined by the Senate or by the House of Representatives respectively, as the case may arise in connection with the elections of members of those Houses (sec 47).

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