§ 139. “Has or Acquires.”

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

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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. There 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 Australian

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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.

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 affirmation140 of allegiance in the form set forth in the schedule to this Constitution.

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.

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