§ 138. “No Adult Person.”

The intention of the section is that when the Federal Parliament adopts a federal franchise it may not deprive any adult person of the right to vote at Federal elections, who, at that time, has a right to vote at elections for the more numerous House of the Parliament of his or her State. The interpretation of the section, however, is a matter of considerable difficulty. The chief question is whether it merely preserves to individual persons a right to vote at Federal elections, notwithstanding that the general qualification prescribed by the Parliament does not include them; or whether it prevents the Parliament from prescribing any franchise for the Commonwealth which does not extend throughout the Commonwealth every franchise existing, with respect to adult persons in any State. The latter view—that Parliament cannot pass any but a uniform franchise, and that such uniform franchise must level up the franchise in every State to the level of the widest suffrage then existing—seems to have been held by several members of the Convention. (See Conv. Deb., Adel., pp. 715-25; 1191-7; Melb., pp. 1840-55.)

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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.