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5. The House of Representatives.

Constitution of House of Representatives.

24. The House of Representatives103 shall be composed of members directly chosen by the people of the Commonwealth104, and the number of such members shall be, as nearly as practicable105, twice the number of the senators106.

The number of members chosen in the several States shall be in proportion to the respective numbers of their people107, and shall, until the Parliament otherwise provides108, be determined, whenever necessary109, in the following manner:—

  • (i.) A quota shall be ascertained110 by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of the senators:
  • (ii.) The number of members to be chosen in each State111 shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one-half of the quota112, one more member shall be chosen in the State.

But notwithstanding anything in this section, five members at least113 shall be chosen in each Original State.

UNITED STATES.—The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.—Const. Art. I., sec. 2, sub-sec. 1.

Representatives shall be apportioned among the several States which may be included within this Union, according to their respective numbers. … The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative.—Id. Art. I., sec. 2, sub-sec. 3; and see Amendment xiv.

CANADA.—The House of Commons shall, subject to the provisions of this Act, consist of one hundred and eighty-one members, of whom eighty-two shall be elected for Ontario, sixty-five for Quebec, nineteen for Nova Scotia, and fifteen for New Brunswick.—B.N.A. Act, 1867, sec. 37.

On the completion of the census in the year one thousand eight hundred and seventy-one, and of each subsequent decennial census, the representation of the four Provinces shall be re-adjusted by such authority, in such manner, and from such time, as the Parliament of Canada from time to time provides, subject, and according to the following rules:

  • (1.) Quebec shall have the fixed number of sixty-five members:
  • (2.) There shall be assigned to each of the other Provinces such a number of members as will bear the same proportion to the number of its population (ascertained at such census) as the number sixty-five bears to the number of the population of Quebec (so ascertained):



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  • (3.) In the computation of the number of members for a Province a fractional part not exceeding one-half of the whole number requisite for entitling the Province to a member shall be disregarded; but a fractional part exceeding one-half of that number shall be equivalent to the whole number:
  • (4.) On any such readjustment the number of members for a Province shall not be reduced, unless the proportion which the number of the population of the Province bore to the number of the aggregate population of Canada at the then last preceding readjustment of the number of members for the Province is ascertained at the then latest census to be diminished by one-twentieth part or upwards:
  • (5.) Such readjustment shall not take effect until the termination of the then existing Parliament.—B.N.A. Act, 1867, sec. 51.
SWITZERLAND.—The National Council is composed of representatives of the Swiss people, chosen in the ratio of one member for each 20,000 persons of the total population. Fractions of upwards of 10,000 persons are reckoned as 20,000. Every Canton, and in the divided Cantons every half Canton, chooses at least one representative.—Swiss Const., Art. 72.

HISTORICAL NOTE.—Chapter I. of the Commonwealth Bill of 1891 contained the following clauses:—

24. “The House of Representatives shall be composed of members chosen every three years by the people of the several States, according to their respective numbers; and until the Parliament of the Commonwealth otherwise provides, each State shall have one Representative for every 30,000 of its people.

“Provided that in the case of any of the existing colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, and Western Australia, and the province of South Australia, until the number of the people is such as to entitle the State to four Representatives, it shall have four Representatives.”

27. “When upon the apportionment of Representatives it is found that after dividing the number of the people of a State by the number in respect of which a State is entitled to one Representative there remains a surplus greater than one-half of such number, the State shall have an additional Representative.”

29. “A fresh apportionment of Representatives to the States shall be made after each census of the people of the Commonwealth, which shall be taken at intervals not longer than ten years. But a fresh apportionment shall not take effect until the then next general election.”

In Committee, the question of apportionment was shortly discussed. (Conv. Deb., Syd., 1891, pp. 612-3, 639.) At the Adelaide session, 1897, the Bill as introduced provided for a quota based on a “two to one ratio” of the Houses, the clause being as follows:—

“The House of Representatives shall be composed of members directly chosen by the people of the several States, according to their respective numbers; as nearly as practicable there shall be two members of the House of Representatives for every one member of the Senate.

“Until the Parliament otherwise provides, each State shall have one member for each quota of its people. The quota shall, whenever necessary, be ascertained by dividing the population of the Commonwealth as shown by the latest statistics of the Commonwealth by twice the number of the members of the senate; and the number of members to which each State is entitled shall be determined by dividing the population of the State, as shown by the latest statistics of the Commonwealth, by the quota.

“But each of the existing colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, and Western Australia, and the province of South Australia, shall be entitled to five Representatives at the least.”

The “apportionment” clause of the Bill of 1891 was also introduced verbatim. On the motion to go into Committee, the new provision was explained by Mr. Barton. (Conv. Deb., Adel., pp. 435-7.) In Committee, it was explained again by Mr. O'Connor. Sir Geo. Turner objected to the clause, both as being too rigidly mechanical, and as checking the due increase of representatives with the increase in population. Mr. Glynn approved of it, as the alternative of a fixed quota would soon lead to so large a House that the provision for a minimum representation of the smaller States would become valueless. Mr. Higgins argued that there was no possible connection between the numbers of the two Houses, and opposed the scheme because it seemed to be leading up to a proposal for a joint sitting. Mr. Reid approved of it for the same reason, and also because it would tend to prevent an inordinate growth of the size of the House. Mr. Isaacs' objection was that the States where the growth of population was least


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would suffer a decrease in their representation. Mr. O'Connor pointed out that the numbers of the House of Representatives might be increased at any time by increasing the number of senators for each State. Sir John Downer supported the clause as preventing the effacement of the Senate by an undue expansion of the House of Representatives. Mr. Deakin thought the ratio excellent to begin with, but thought that the clause might prove unduly rigid, and suggested that the words “Until the Parliament otherwise provides” should be placed at the beginning. Sir Geo. Turner accordingly moved to insert those words before the words “as nearly as practicable,” but this was negatived by 26 votes to 9. Mr. Solomon then proposed that representation in the House of Representatives should be upon a sliding scale, instead of according to population; but this was not taken seriously and was negatived without division. Mr. Reid proposed to reduce the minimum from “five” to “four,” but subsequently withdrew the amendment. (Conv. Deb., Adel., pp. 683-715.) At a later stage the clause was verbally amended. (Id. p. 1191.)

At the Sydney session, a suggestion by the Legislative Assemblies of New South Wales and Victoria, to omit the “two to one ratio,” and insert a provision that, until the Parliament otherwise provides, each State shall have one representative for every 30,000 of its people, was negatived, after considerable debate, by 26 votes to 17. A verbal correction was made. (Conv. Deb., Syd. [1897], pp. 420-53.)

At the Melbourne session, before the first report, the clause was verbally amended. After the first report, an amendment was carried, on Mr. O'Connor's motion, by which the words “chosen by the people of the Commonwealth” were substituted for “chosen by the people of the several States;” and the quota and re-apportionment provisions were recast into a separate clause, 24A, but in substantially their present form. Sir George Turner then proposed again to omit the “two to one ratio,” and substitute a provision that until the Parliament otherwise provides, each State shall have one Representative for every 50,000 of its people. This was negatived, after debate, by 25 votes to 10. The re-apportionment clause was then struck out, being provided for in the quota clause. (Conv. Deb., Melb., pp. 1827-38.) After the fourth report, the two clauses (24 and 24A) were condensed into one, with verbal alterations.

§ 103. “The House of Representatives.”

As the Senate is the legislative organ representing the States, so the House of Representatives is the legislative organ representing the nation. This appears from the exact words of the Constitution. The Senate is composed of an equal number of senators “for each State,” directly chosen by the people of the State (sec. 7). The House of Representatives is composed of members directly “chosen by the people of the Commonwealth,” and the number of members chosen in the several States is required to be in proportion to the respective numbers of the people. In one chamber the States are equally represented. In the other chamber the people are proportionately represented. The Senate represents the States as political units. The House represents the people as individual units.

In declaring that the House of Representatives is chosen by the “people of the Commonwealth,” the Constitution follows the precedent of Switzerland, which declares that the National Council represents “the Swiss people;” whereas the House of Representatives in the United States is “chosen by the people of the several States”—a phrase which does not so clearly express its national element.

In our review of the meaning of the phrase, “Federal Commonwealth” (Note, § 27 supra), we have seen that the Commonwealth is a community created on the model of a national State with a federal structure;—National in uniting the people, Federal in uniting the States, and, for certain purposes, maintaining the autonomy and individuality of each State, and assigning to each State a share in the dual system of government. It is hardly necessary once more to emphasize the principle that the Commonwealth


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as a political State should not be confused with the Federal Government. The Federal Government, consisting of three divisions—the legislature, the executive, and the judiciary—is charged with the duty of exercising certain defined powers and functions, assigned to it by the Commonwealth in and through the Constitution.

The Federal Government is only one part of the dual system of government by which the people are ruled; the other parts of the dual system are the State Governments, charged with the duty of exercising the residuary powers and functions of government, reserved to them by the Commonwealth in and through the Constitution.

The House of Representatives is one of the two Chambers of the legislative organization of the Federal Government. It gives particular force and expression to what may be described as the national principle of the Commonwealth. In that great assembly the national principle will find full scope and representation. Its operation and tendency will be in the direction of the unification and consolidation of the people of the Commonwealth into one integrated whole, irrespective of State boundaries. In its constitution it represents “the people of the Commonwealth,” as distinguished from “the people of the States.” The natural bent and inclination of its policy will, therefore, be to regard its constituents as one united people; one in community of rights and interests; one in their title to the equal protection of the law; one in the claim to fair and beneficent treatment; one in destiny. On the other hand, the Senate, as well as the High Court, will tend to check any unconstitutional encroachments on the reserved realm of provincial autonomy. If in both chambers the people had been represented in proportion to their numbers, the practical result would have been the establishment of a unified government, in which the States, as political entities, would have been absolutely unrecognized, and would have been soon reduced to a subordinate position. The Convention was entrusted with no such duty, under the Enabling Acts by which it was called into existence; its mandate was to draft a Constitution in which the federal, as well as the national elements, were recognized.

The House of Representatives is not only the national chamber; it is the democratic chamber; it is the grand depository and embodiment of the liberal principles of government which pervade the entire constitutional fabric. It is the chamber in which the progressive instincts and popular aspirations of the people will be most likely to make themselves first felt. This characteristic is not founded on any difference in the franchise of the House of Representatives from that of the Senate, because both franchises are the same; it arises from the fact that, by the Constitution, it is expressly intended to be such a House, and that by its organization and functions it is best fitted to be the arena in which national progress will find room for development.

The House of Representatives of the Commonwealth bears a close resemblance to the House of Representatives of the United States of America, and occupies the corresponding position in the scheme of government.

THE HOUSE OF COMMONS AND THE HOUSE OF REPRESENTATIVES COMPARED.—We will now proceed to draw attention to certain features in the constitution and functions of the House of Representatives in which it resembles the House of Commons, and certain other features and functions in which it differs from that historic Chamber:—

Resemblance.—The members of both the House of Commons and the House of Representatives are elected by the people, voting in national constituencies, and consequently they represent national elements. They both exercise supreme supervision over the finances. This is secured by the exclusive power of originating proposed laws appropriating public money and imposing taxation, and in the inability of the House of Lords in all cases, and of the Senate with certain exceptions, to amend such proposed laws. This control of the finances will tend to carry with it the predominant control of the Executive, and hence the system known as Responsible Government.

Differences.—The House of Commons is the National Chamber of the Empire, exercising in conjunction with the other branches of the Imperial Parliament unlimited,


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unchallengeable sovereign authority. The House of Representatives is the National Chamber of the Commonwealth, which is merely an outlying portion of the Empire, the Parliament of which is endowed only with restricted and enumerated powers, delegated to it through the Federal Constitution by the parent Parliament. The House of Representatives is a division of a subordinate law-making body, whose mandates are of the nature of by-laws, valid whilst within the jurisdiction conferred upon it by the Constitution, but invalid if they go beyond the limits of such jurisdiction. (Dicey, Law of the Const. p. 137.)

Another important point of difference between the House of Commons and the House of Representatives has been pointed out by Dr. Burgess. Since the reform and revolution of 1832, the House of Commons, he says, has occupied a double position in the English system. It is one branch of the legislature, and it is also the sovereign organization of the State. In the former capacity it has no more power than the House of Lords; in the latter it is supreme over the King and the Lords. The great result of the reform movement of 1832 is, he contends, that the people became politically organized in the House of Commons. In other words, the organization of the State, within the Constitution, is now the same as was its organization back of the Constitution. The House of Commons, newly elected after a dissolution on a particular principle, or measure, is the political people organized through their representatives in that House. There is thus, he says, a correspondence between the revolutionary organization of the State, back of the Constitution, and its continuing organization within the Constitution. (Burgess, Political Sci. vol. i. p. 95; vol. ii. pp. 38-9.) At the beginning of its constitutional career, the House of Representatives will not occupy such a commanding relative position as the House of Commons, for the reason previously stated that its powers are limited by the Constitution. Its capacity to initiate reforms with a view to the acquisition of further power is, however, with the exceptions mentioned in sec. 128, unbounded. It cannot, like the House of Commons, through ministers having its confidence, intimidate or coerce the Upper House and the Crown to agree to a proposed amendment of the Constitution; the ultimate determination of all such constitutional proposals is vested in a body of persons, defined by the Constitution as a majority of the electors of the Commonwealth voting, including majorities in more than half the States. Such majorities constitute the quasi-sovereign organization of the Commonwealth, considered as a political State. But the House of Representatives can originate such constitutional proposals, and cause them to be submitted to the Federal electors for their decision; and it cannot be doubted that the influence of the members of such a strong chamber in securing an affirmative vote in favour of its proposals will be very powerful indeed.

§ 104. “The People of the Commonwealth.”

Attention may be drawn to the above expression “the people of the Commonwealth” for the purpose of contrasting of it with another, to be found in section 7, “the people of the States.” (Note, § 68, supra.) A federation is, as we have already seen, defined by some authorities as a State having a dual system of government; (see “Federal,” § 27, supra); hence, in a federation it is said there is a dual citizenship. It follows that each natural-born or naturalized subject of the Queen permanently residing within the limits of the Commonwealth is entitled to be considered as a citizen of the Commonwealth, and, at the same time, a citizen of the State in which he resides. Every such person thus owes a double duty, and can claim a double right; a duty to the Commonwealth, as the great community embracing all the people, to yield obedience to its laws, to assist in its defence, and to take part in promoting its interests; a right to claim from the Commonwealth the equal protection of its laws, and to share in the honour and advantage of its rule. Such a person also owes a duty to the particular State in which he resides, regarding that State as a part of the Commonwealth, guaranteed to possess and enjoy certain privileges and immunities; a duty to obey its laws, and at the same time to assist in


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defending the State domain against unconstitutional invasion; a right to demand from the State the equal protection of the laws of the State. In one capacity such a person is described by the Constitution as one of “the people of the Commonwealth;” in the other he is one of “the people of a State.” From this dual citizenship, and, in order to assist in its preservation, every person living under such a form of government has a duality of political rights and powers. He is entitled, not only to assist in carrying on the government of his State, as a part of the Commonwealth, but to assist in the government of that wider organization of the nation itself. In the latter work, taken and considered by itself, he has also a dual right and power; viz., to join in returning members to the House of Representatives in which centralizing, consolidating, nationalizing, and progressive elements of the community are represented, and also to assist in returning members to the Senate, in which the moderating, restraining, conserving and provincial elements of the community are represented. The duty of a citizen having these dual functions, and of the Federal Parliament so dually constituted, will be to reconcile and harmonize all these apparently conflicting yet necessary and inevitable forces.

§ 105. “As Nearly as Practicable.”

These words are not intended to allow the Parliament a discretionary latitude in fixing the number of the members of the House of Representatives, but to provide for the slight variation that may be caused by the provision for the minimum representation of a State, and also by the provision for representing fractions of a quota. According to the mode provided in this section for determining the number of members, the “quota” of representation is to be ascertained by pure arithmetic. So far, the words, “as nearly as practicable” are unnecessary. But the quota so obtained, though it of course divides exactly into the population of the Commonwealth, is not likely to divide exactly into the population of each State. There will probably be fractions in each State, arithmetically entitled to a fraction of a member; and whether these fractions are ignored altogether, or whether provision is made—as in this section—for assigning a member to any fraction greater than one-half the quota, the result may be to slightly disturb the “two to one ratio.” A further, and, at present, more considerable element of disturbance is the provision that each State shall have at least five representatives. On a population basis, Tasmania is at present only entitled to three representatives; and her two additional members, not being allowed for by the quota calculation, go to increase the number of members beyond the “two to one ratio.”

The Parliament, when it makes “other provisions” for determining the number of members, will be bound by the constitutional provision to make their number “as nearly as practicable twice the number of the senators;” and the clear intention is that the absolute ratio should only be departed from, so far as may be necessary to adjust fractional and minimum representation.

§ 106. “Twice the Number of the Senators.”

There is a constitutional limit to the number of members of the House of Representatives, viz., that it shall be, as nearly as practicable, twice the number of the senators; in other words there must be two representatives to one senator. This provision was described in the course of the Convention Debates as the “two to one ratio.” In this respect, the rule regulating the numerical strength of the Australian House of Representatives differs both from that of the American House of Representatives and from that of the Canadian House of Commons.

Under the American Constitution the first House of Representatives consisted of 65 members, of which there was one for every 30,000 of the qualified inhabitants. Congress was given general power to apportion representatives among the several States according to their respective numbers, and could therefore increase the number of representatives without reference to the number of senators. This power was subject to one


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limitation; viz., that there should never be more than one representative for every 30,000 inhabitants. After the census of 1790 the first Congressional apportionment took place. The number of representatives was increased to 106, which, divided among the aggregate population, gave one representative for every 33,000. After the census of 1810 the number of representatives was raised to 183, which, divided among the population, gave one for every 35,000. In 1820 the number of representatives was was brought up to 213, which gave one to every 40,000. In 1830 the representatives were increased to 242, or one for every 47,700. In 1840 the representatives were reduced to 223, or one for every 70,680. In 1850 the representatives were increased to 233, or one for every 93,000. (Sheppard's Constitutional Text Book, 1863.) In the latest Apportionment Act, based on the census of 1890, the number of representatives was fixed at 357, which gave one representative to every 173,900. (Statesman's Year Book, 1899, p. 1130.) So, as the population went on increasing, the number of members to divide among the population has from time to time increased. The increase of members, however, does not proceed in proportion to the increase of the population. The proportion of representatives to population has been gradually diminished, from one representative for every quota of 30,000 in 1789, to one representative for every quota of 173,900 in 1890.

The British North America Act, 1867, sec. 37, provided that the Dominion House of Commons should at first consist of 181 members, of whom 82 were assigned to Ontario, 65 to Quebec, 19 to Nova Scotia, and 15 to New Brunswick. By sec. 52 of the same Act power was given to the Parliament of Canada to increase the number of the members of the House of Commons, subject, however, to the condition that the proportionate representation prescribed by the Act should not be thereby disturbed. The basis for re-adjustment after each decennial census is that Quebec shall always have the fixed number of 65 members, and that each of the other Provinces shall be assigned the number of members which bears the same proportion to its population as the number 65 bears to the population of Quebec—a fractional part exceeding half a quota being regarded as a whole quota. (See p. 445, supra.)

On the basis of the census of the Dominion taken in April, 1891, and in accordance with a redistribution bill passed in 1892, the House of Commons consists of 213 members—92 for Ontario, 65 for Quebec, 20 for Nova Scotia, 14 for New Brunswick, 7 for Manitoba, 6 for British Columbia, 5 for Prince Edward Island, and 4 for the North-West Territories. The ratio of members to population is now one to 22,688. (Statesman's Year Book, 1899, p. 221.)

In the Draft Bill of 1891 it was provided (as in the Constitution of the United States) that there should be one representative for every 30,000 of the population of the Commonwealth, but that this quota should be alterable by the Federal Parliament; there was no provision made for any maximum number of members. As the population increased, the representation could be increased by an additional member for every 30,000.

It has been estimated that, if the Commonwealth had been established in 1897 and the House of representatives constituted on the basis of one member for every 50,000 of the population, that House would have consisted of about 71 members, of which New South Wales would have had 26, Victoria 24, Queensland 9, South Australia 7, Tasmania 3, Western Australia 2. In 1901, on the assumption that the past rates of increase of population continued, New South Wales would have 32, Victoria 27, Queensland 13, South Australia 9, Western Australia 4, and Tasmania 3, total 88. According to the same average of increase the House of Representatives would, by the year 1941, have a total of 446 members. (Mr. R. E. O'Connor, Conv. Deb., Adel., 1897, p. 685.)

This Constitution places no limit on the power of the Parliament to increase the size of the House of Representatives, except that the Senate must be increased in the same proportion, so as to preserve the “two to one ratio.” It, however, effectually prevents any such rapid automatic increase as is foreshadowed in the calculations above


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referred to. The number of representatives depends upon the number of senators, and the number of senators does not increase automatically at all. The number of senators may, however, be increased in two ways—either by increasing the number of senators for each State or by increasing the number of States.

The Parliament may increase or diminish the number of senators for each State, provided that equal representation of the original States shall be maintained and that no Original State shall have less than six senators (sec. 7). The number of senators may also be increased by the admission or establishment of new States (sec. 121). There are thus two methods by which the number of senators may be increased; (1) by an Act of the Federal Parliament increasing the number of senators for each existing State, and (2) by an Act of the Federal Parliament, admitting or establishing a new State or States and thus introducing additional senators. Accordingly, though apparently the number of representatives is determined by the number of Senators, yet the fact that the number of senators may be increased to any extent by the Parliament makes the number of the House of Representatives equally elastic (see Note, § 1–16, infra).

This “two to one ratio” is a rigid element and basic requirement of much importance and significance; it is embedded in the Constitution; it is beyond the reach of modification by the Federal Parliament, and can only be altered by an amendment of the Constitution. It was adopted after due consideration and for weighty reasons. It was considered that, as it was desirable, in a Constitution of this kind, to define and fix the relative powers of the two Houses, it was also but fair and reasonable to define their relative proportions, in numerical strength, to each other, so as to give that protection and vital force by which the proper exercise of those powers could be legally secured. It was considered extremely necessary to prevent an automatic or arbitrary increase in the number of members of the House of Representatives, by which there would be a continually growing disparity between the number of members of that House and the Senate; and to give some security for maintaining the numerical strength, as well as the Constitutional power, of the Senate. It was argued that if the number of the members of the Senate remained stationary, whilst the number of the members of the House of Representatives were allowed to go on increasing with the progressive increase of population, the House would become inordinately large and inordinately expensive, whilst the Senate would become weak and impotent. It was said that to allow the proportion of the Senate towards the House of Representatives to become the merest fraction, would in course of time lead practically to the abolition of the Senate, or at any rate, to the loss of that influence, prestige, and dignity to which it is entitled under the Constitution. In reply to the argument founded on the danger of disparity, arising between the number of members of the Senate and the number of members of the House of Representatives, attention was drawn to the Constitution of the United States of America under which Congress had unlimited power to increase the number of members of the House, without increasing the number of senators; which power had not been recklessly or improvidently exercised. The power and status of the Senate had not been prejudiced by the gradual increase in the number of representatives. In answer to this, it was contended that the Senate of the United States of America had maintained its position in the Constitution largely owing to its possession of certain important judicial, legislative and executive powers, which had not been granted to the Senate of the Commonwealth, such as the sole power of trying cases of impeachment; the power to ratify or to refuse to ratify treaties made by the President with foreign nations; and the power to refuse to confirm executive appointments made by the President. These powers were the main sources of the strength of the American Senate, which prevented any wide disparity in numbers between it and the House of Representatives from causing it to drift into the insignificance of a small committee or board. The Senate of the Commonwealth, being deprived of such powers, should be protected against the danger of disparity in numbers. As regards the necessity, which might hereafter arise, of increasing the number of representatives to meet the demands of an increased and


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increasing population, it was not likely that the Senate would deny an increase in the House of Representatives when it secured an increase itself. (Conv. Deb., Adel., pp. 435-7, 683-98; Sydney, pp. 429-52.)

§ 107. “In Proportion to the Respective Numbers of Their People.”

The number of members chosen by the people of the Commonwealth in the several States is to be in proportion to the respective numbers of their people. The words of the corresponding section in the Constitution of the United States of America (Art. I. sec. ii. sub-sec. 3), are, that representatives shall be apportioned among the several States of the Union “according to their respective numbers,” provided that their representation should not be greater than the proportion of 1 to 30,000. In the Draft Bill of 1891, part III. sec. 24, it was proposed that representatives should be chosen by the people of the several States, “according to their respective numbers,” provided that their representation should not be greater than 1 to 30,000. In the Constitution of the United States it was further provided that each State should have at least one representative; and, until the first enumeration was made, the number of members for each State was specified in the Constitution itself.

Every scheme of apportionment, founded on a fixed ratio, such as one representative for every 30,000 inhabitants, was open to the objection that in almost every State there would probably be thousands of persons constituting a fraction of the given number, who would be absolutely unrepresented in the House. This was the actual experience of the United States of America. Accordingly, different methods of providing for and dealing with these fractions were suggested and tried. The first apportionment Bill was introduced into the House of Representatives in 1790. It gave one representative for every 30,000 inhabitants, and made no provision for the representation of the remaining fractions; thus a State containing a population of one million would be assigned 33 representatives, representing 990,000 in the million, leaving 10,000 unrepresented. The Senate amended the Bill by allowing additional representatives to the States having the largest fractions; the House concurred in the amendment, but the Bill was eventually vetoed by President Washington. (Marshall's Life of Washington, vol. V. pp. 320, 323; cited Foster's Comm. vol. I. pp. 394-7; Webster's Report of the Senate, 1832, cited Foster, pp. 436-8.)

Accordingly, the basis of apportionment in the United States ignored fractions altogether until 1842, when a new rule was adopted on the lines of Daniel Webster's Report to the Senate, made ten years previously. The new rule made the provision as to fractions which is adopted by this Constitution, and the purpose of which cannot be explained more clearly than in the words of Webster's Report:—

“It may be clearly expressed in either of two ways. Let the rule be, that the whole number of the proposed House shall be apportioned among the several States, according to their respective numbers, giving to each State that number of members which comes nearest to her exact mathematical part, or proportion; or, let the rule be, that the population of each State shall be divided by a common divisor, and that, in addition to the number of members resulting from such division, a member shall be allowed to each State whose fraction exceeds a moiety of the divisor.” (Webster's Report, cited Foster's Comm., vol. 1. p. 445.)

§ 108. “Until the Parliament Otherwise Provides.”

These words empower the Parliament to alter the provisions of sub-sections 1 and 2, which deal with the manner of determining the number of members chosen in the several States. This power of alteration is, however, confined within very narrow limits by the permanent and absolute provisions of the section. The rules which are determined absolutely by the section, and which the Parliament has no power to alter, are:—




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  • (1.) That the whole number of members shall be, as nearly as practicable, twice the number of the senators:
  • (2.) That the number of members chosen in the several States shall be in proportion to the respective numbers of their people:
  • (3.) That five members at least shall be chosen in each Original State.

The provisions for ascertaining the quota, and for dealing with the question of fractions, may only be altered subject to those absolute rules; so that the power of the Parliament to alter the basis of apportionment is very small.

§ 109. “Be Determined Whenever Necessary.”

The Constitution does not expressly say by whom this determination is to be made. Whenever it is “necessary” to re-apportion the members, the only data needed are the “latest statistics of the Commonwealth,” showing the population of the Commonwealth, and of each State. Given those figures, the rest is mere arithmetic; and according to the maxim—“Id certum est quod certum reddi potest”—the numbers are then already determined.

Parliamentary authority would, however, appear to be required for two purposes: —(1) To provide for the preparation of the latest statistics, and to identify those statistics by law; and (2) to declare when re-apportionment is “necessary.” As the statistics are at the root of the representative system, it is important that they should be clearly recognized and identified by Act of Parliament; and even when that has been done, it would be most undesirable that the Executive should be left to decide for itself whether re-apportionment were necessary.

The Constitution does not prescribe any regular interval for re-apportionment, nor does it require that re-apportionment should take place at every general election, if later statistics are available; it merely provides that apportionment shall be made “whenever necessary,” and that when so made it shall be according to the latest statistics. The Parliament is apparently left to judge for itself when the necessity arises. The only reliable basis of population statistics is a census; and it may be presumed that the Parliament will provide for a periodical—probably a decennial—census, and will require that after each census the number of members for each State shall be determined afresh. Such determination, when made, will of course not take effect till the next general election.

§ 110. “A Quota shall be Ascertained.”

The quota is that number of the aggregate population of the Commonwealth which, considered as a unit, is entitled to one member in the House of Representatives. It is obtained by dividing the population of the Commonwealth by twice the number of senators. The population is that shown in the latest statistics. The number resulting from the division, the quotient, is called the quota. This is the ratio of representation, there being one representative for every quota of the population of the Commonwealth. The method of obtaining the quota may be shown as follows:—

   
Twice the number of senators.  Population of Commonwealth.  Quota 
72  3,717,700  51,635 (or exactly, 51,634·72) 

It seems clear that strict accuracy requires that the quota should be calculated out to an exact decimal fraction. To neglect the fraction might, in occasional instances, just make the difference of a representative more or less. Thus, suppose that the exact quota were 50,000·4, and that the population of one of the States were 1,025,001. If the


  ― 455 ―
quota were taken at its integral value, 50,000, the State would be entitled to 21 representatives—20 in respect of 1,000,000 inhabitants, and one more in respect of the remainder of 25,001, which is greater than one-half of the quota. But if the quota is taken at its exact value the remainder will only be 24,993, or less than one-half the quota, and the State will only be entitled to 20 representatives.

This method of ascertaining the quota may be altered by the Federal Parliament and another substituted. But the “two to one ratio,” and the rule requiring the distribution of representatives chosen in the several States in proportion to the respective numbers of their people, cannot be interfered with except by an amendment of the constitution.

§ 111. “Members to be Chosen in each State.”

The quota being ascertained, it becomes a mere matter of arithmetic to determine the number of representatives to be chosen in each State. The quota, say fifty thousand, is divided among the population of the State as shown by the latest statistics of the Commonwealth. The result of the division is the number of representatives to be chosen in the State—subject, however, to the provision that each State shall have at least five representatives, and subject also to the provision as to fractions.

§ 112. “A Remainder Greater than One-half of the Quota.”

It is provided that if, in any such division of the quota among the population of the State, the remainder left is greater than one-half of the quota, one more member shall be chosen in the State. This expresses, in a legal form, what has been the recognized practice in the United States of America, of late years, of dealing with such fractions of a quota. (See Webster's Report on Apportionment; Foster's Comm. I. p. 434; and note, § 107, supra.) The Canadian Constitution contains a similar direction.

§ 113. “Five Members at Least.”

With fifty thousand as the quota, Tasmania and Western Australia would be entitled to only two or three members each in the National Chamber. This was considered such an insignificant representation that provision was made that there should be a minimum number of five members in each State.

Provision as to Races disqualified from Voting.

25. For the purposes of the last section, if by the law of any State all persons of any race are disqualified114 from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

UNITED STATES.—When the right to vote at any election for the choice of electors for President and Vice-President of the United States, representatives in Congress, the executive and judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.—Amendment XIV.

HISTORICAL NOTE.—In the Commonwealth Bill of 1891, clause 26, Chap. I., was as follows:—

“When in any State the people of any race are not entitled by law to vote at elections for the more numerous House of the Parliament of the State, the representation


  ― 456 ―
of that State in the House of Representatives shall be reduced in the proportion which the number of people of that race in the State bears to the whole number of the people of the State.”

In Committee, Dr. Cockburn suggested that the reduction should extend, not only to alien races, but to all male adults disfranchised. (Conv. Deb., Syd. [1891], pp. 637-9.) At the Adelaide session, 1897, the clause was introduced and passed as follows:—

“In ascertaining the number of the people of any State, so as to determine the number of members to which each State is entitled, there shall be deducted from the whole number of the people of the State the number of the people of any race not entitled to vote at elections for the more numerous House of the Parliament of the State.”

At the Sydney session, 1897, a suggestion by both Houses of the New South Wales. Parliament, to omit the clause, was explained by Mr. Carruthers as not expressing any objection to the principle of the clause, but as directing attention to an ambiguity. (Conv. Deb., Syd. [1897], pp. 453-4) At the Melbourne session, the clause was verbally amended before the first report. After the first report it was incorporated with clause 24. (Conv. Deb., Melb., pp. 1827-8.) After the fourth report, it was redrafted as it now stands. (Id. p. 2447.)

§ 114. “Disqualified.”

This section is based on the fourteenth Amendment of the Constitution of the United States, cited above. That amendment was passed after the Civil War, in order to induce the Governments of the States to confer the franchise on the emancipated negroes, who were declared citizens of the United States. It was designed to penalize, by a reduction of their federal representation, those States which refused to enfranchise the negroes.

The effect of the section in this Constitution is that where, in any State, all the persons of any race—such, for instance, as Polynesians, Japanese, &c.—are disqualified from voting at elections for the popular Chamber in the State, the persons of that race resident in that State cannot be counted in the statistics used for ascertaining the quota.

Representatives in first Parliament.

26. Notwithstanding anything in section twenty-four, the number of members to be chosen in each State at the first election115 shall be as follows:—

         
New South Wales ...  twenty-three; 
Victoria ... ... ...  twenty; 
Queensland ... ...  eight; 
South Australia ... ...  six; 
Tasmania ... ... ...  five; 

Provided that if Western Australia is an Original State, the numbers shall be as follows:—

           
New South Wales ...  twenty-six; 
Victoria ... ... ...  twenty-three; 
Queensland ... ...  nine; 
South Australia ... ...  seven; 
Western Australia ...  five; 
Tasmania ... ... ...  five. 




  ― 457 ―

HISTORICAL NOTE.—In the Commonwealth Bill of 1891, the clause was as follows:—

“The number of members to be chosen by each State at the first election shall be as follows: [To be determined according to latest statistical returns at the date of the passing of the Act.]”

At the Adelaide session, 1897, the clause was introduced and passed as follows:—

“Notwithstanding anything in section 24, the number of members to be chosen by each State at the first election shall be as follows: [To be determined according to latest statistical returns at the date of the passing of the Act, and in relation to the quota referred to in previous sections.]”

At the Sydney session, a suggestion by the Legislative Assembly of Victoria to omit reference to the quota was not put from the Chair, being consequential on other amendments already rejected. (Conv. Deb., Syd., 1897, p. 454.) At the Melbourne session, verbal amendments were made after the fourth report. In the Bill as introduced into the Imperial Parliament, the blanks were filled in, with the alternative provision in the event of Western Australia being an Original State.

§ 115. “The Number of Members … at the First Election.”

On 21st February, 1900, a Conference of Statisticians, representing the colonies which had agreed to accept the Constitution, was held at Sydney for the purpose of determining, according to the latest available information, the number of representatives to which each of those colonies, on becoming States, would be entitled. The Conference, which was convened by Sir William Lyne, the Premier of New South Wales, on the suggestion of Mr. Allan McLean, the Premier of Victoria, was composed as follows:—

           
Member of Conference.  Office.  Colony Represented. 
T. A. Coghlan ... ... ...  Government Statistician ...  New South Wales 
James J. Fenton ... ... ...  Government Statist... ...  Victoria 
J. Hughes ... ... ... ...  Registrar-General ... ...  Queensland 
L. H. Sholl ... ... ...  Government Statist, &c. ...  South Australia 
R. M. Johnston ... ... ...  Registrar-General, &c. ...  Tasmania 

It was nine years since the last census had been taken in Australia, and consequently it was necessary that computations on a uniform basis should be made and concurred in as to the population of each colony. The total population of each colony having been ascertained it was then necessary to deduct therefrom disqualified races under Sec. 25, and aboriginals under Sec. 127. The Conference does not seem to have been called upon to make any deductions on account of “the people of any race” under the first named section. No difficulty was experienced in deducting the aboriginal element. The result was that the Conference agreed to a resolution affirming that the population of the colonies was, on 31st December, 1899, as follows:—

             
Colony.  Population 31st December, 1899. 
New South Wales ... ... ... ...  1,348,400 
Victoria ... ... ... ... ...  1,162,900 
Queensland ... ... ... ... ...  482,400 
South Australia ... ... ... ...  370,700 
Tasmania ... ... ... ... ...  182,300 
Total ... ... ... ... ...  3,546,700 




  ― 458 ―

With five colonies forming parts of the Commonwealth the number of senators would be 30; twice the number of senators would be 60; 60 divided among the total population yielded a quota of 59,112 (or, to an exact fraction, 59,111·6). This quota divided among the population of each colony according to the provisions of sec. 24-ii., allowing for fractions and the minimum, gave the number of representatives for each as follows:—

             
State.  Population 31st December, 1899.  Number of Members. 
New South Wales ... ...  1,348,400  23 (22·81) 
Victoria ... ... ... ...  1,162,900  20 (19·67) 
Queensland ... ... ...  482,400  8 (8·16) 
South Australia ... ... ...  370,700  6 (6·22) 
Tasmania ... ... ... ...  182,300  5 (3·08) 
Total... ... ... ...  3,546,700  62 

In the aforegoing apportionment it will be seen that New South Wales was entitled to a 23rd member by virtue of the remainder left, after the division, being more than one-half the quota. Victoria, for a similar reason, received a 20th member. According to the quota Tasmania was entitled to only three members; by the minimum provision two members were added, raising its representation to five.

On 27th February these numbers were cabled by the Lieutenant-Governor of New South Wales (Sir Frederick Darley) to Mr. Chamberlain, for insertion in sec. 26 of the Bill. Before the Bill was introduced into the House of Commons, however, Mr. Chamberlain decided to provide for an alternative plan of distribution of members on the basis of the whole of the six colonies, including Western Australia, forming parts of the Commonwealth.

On the 27th April, Mr. Chamberlain cabled to the Acting-Governor of Western Australia, informing him that the Premiers of the federating colonies had declared that they had no authority to accept amendments in the Commonwealth Bill. “I cannot, in these circumstances,” continued the message, “press the matter further, and I would now urge your Ministers earnestly to consider whether they should not, in the best interests of the Colony, as well as of Australia, make a resolute effort to bring the Colony into Federation at once. Western Australia, unless it joins as Original State, can only enter later on condition of complete intercolonial free trade. It will thus lose the temporary protection offered by Clause 95, and looking to present population of Colony, it may also be found difficult to secure such large representation as it would receive as Original State, and which will enable Colony to secure adequate protection for all its interests in Federal Parliament. Your Ministers will also, of course, take into consideration effect of agitation of the Federalist party, especially in goldfields, if Western Australia does not enter as Original State. In the circumstances, it appears to me of utmost importance to future of Western Australia that it should join at once, and as your Ministers have done their best to secure modifications desired by Parliament, I would urge them to take early steps for summoning new Parliament, and laying position fully before it, with a view to the action necessary for ascertaining wishes of people as to entering Federation. If they agree to this course a clause will be inserted in Bill providing that if people have intimated desire to be included before issue of Her Majesty's Proclamation, Western Australia may join as Original State.” (House of Com. Pap., May, 1900, p. 71–2.)

A reply to this cable was sent by Sir. A. O. Onslow on 2nd May, in which, after thanking Mr. Chamberlain for his great efforts on behalf of Western Australia, he said—


  ― 459 ―
“Parliament has been summoned, on your suggestion, for the 17th May, when an enabling Bill will be introduced by Premier providing for the immediate submission of the Federation Bill to the people. Ministers gratefully accept your offer to make provision in the Imperial Act for Western Australia to enter as an Original State should the wishes of the people be expressed in favour of Federation before the Queen's Proclamation is issued.” (House of Com. Pap., p. 75.)

On 4th May Mr. Chamberlain cabled to the Governors of New South Wales, Victoria, Queensland, South Australia, and Tasmania, informing them of the offer made by Her Majesty's Government to provide in the Commonwealth Bill for admission of Western Australia as an Original State, if the wishes of the people of that Colony should be expressed before the Queen's Proclamation; that the Government of Western Australia had accepted the offer, and would introduce a Bill to provide for an immediate Referendum. It was necessary that an agreement should be arrived at as to the change of figures in Clause 26, should Western Australia join. “I shall,” concluded the message, “be glad to learn as soon as possible what figures are agreed on.” (House of Com. Pap., p. 77.)

The materials available for a fresh computation of the number of members were those agreed to by the Conference of Statists held in Sydney in February, and the official estimate of the population of Western Australia, which was supplied by the Registrar-General of that colony. The population of Western Australia, exclusive of aborigines, was computed at 171,000, making the total population of Australia 3,717,700. With six colonies joining the Union the quota was reduced from 59,112 to 51,635 (or, to an exact fraction, 51,634·72). This new quota divided among the population of the various colonies gave the following apportionment:—

               
State.  Population on 31st December, 1899.  Number of Members. 
New South Wales ... ...  1,348,400  26 (26·11) 
Victoria ... ... ... ...  1,162,900  23 (22·52) 
Queensland ... ... ...  482,400  9 (9·34) 
South Australia ... ... ...  370,700  7 (7·18) 
Tasmania ... ... ... ...  182,300  5 (3·53) 
Western Australia ... ...  171,000  5 (3·31) 
Total ... ... ...  3,717,700  75 

The number of members apportionable among six colonies, as shown in the above table, was cabled to the Secretary of State for the Colonies, and was by him embodied in the proviso to sec. 26 of the Constitution as introduced into the House of Commons. The wisdom of this provision has been fully vindicated by subsequent events. The Constitution was, by authority of the Parliament of the colony, referred to the people of Western Australia on 31st July. The result of the poll was:—

     
YES ... ... ... ... ... ...  44,800 
NO ... ... ... ... ... ...  19,691 
Majority for the Constitution ... ...  25,109 

The referendum in Western Australia was a remarkable incident in the history of the colony as well as in the history of Australian Federation. It was the first time in which adult women participated in the political franchise in that colony, a right which was freely exercised, and, as it proves, not adversely to the consummation of Continental union. By the vote of 31st July, Western Australia joins the Commonwealth as an Original State.




  ― 460 ―

The figures which appear in the above table, in parenthesis, show that Victoria is entitled to its 23rd member and Tasmania to its 4th member by virtue of there being, after division, a remainder greater than one-half of the quota. Tasmania is entitled to its 5th member and Western Australia to its 4th and 5th members by virtue of the provision that no Original State shall have less than five members.

Alteration of number of members.

27. Subject to this Constitution, the Parliament may make laws for increasing or diminishing116 the number of the members of the House of Representatives.

CANADA.—The number of members of the House of Commons may be from time to time increased by the Parliament of Canada, provided the proportionate representation of the Provinces prescribed by this Act is not thereby disturbed.—B.N.A. Act, 1867, sec. 52.

HISTORICAL NOTE.—Clause 30, chap. I. of the Commonwealth Bill of 1891 was as follows:—

“The number of members of the House of Representatives may be from time to time increased or diminished by the Parliament of the Commonwealth, but so that the proportionate representation of the several States, according to the numbers of their people, and the minimum number of members prescribed by this Constitution for any State, shall be preserved.”

At the Adelaide session, 1897, the clause was introduced and passed as follows:—

“Subject to the provisions of this Constitution, the number of the members of the House of Representatives may be from time to time increased or diminished by the Parliament.”

At the Melbourne session, verbal amendments were made after the fourth report.

§ 116. “Increasing or Diminishing.”

The Federal Parliament, like the Canadian Parliament, is authorized to increase the number of members of the House of Representatives, but in both cases there is a constitutional limit to the exercise of that power. The Federal Parliament cannot increase the representatives to any number beyond that as “nearly as practicable twice the number of the senators” for the time being. When the senators for each State are increased by Federal legislation, then the number of members of the House of Representatives must be correspondingly raised to a number “as nearly as practicable twice the number of the senators.”

The provision for equal representation of all the Original States in the Senate makes it impossible to increase the senators for one Original State without a similar increase for all the others. It follows that any alteration made by increasing the number of senators for each Original State must increase the whole number of senators by a number which is some multiple of the number of Original States; and the corresponding increase in the House of Representatives will be twice that number. Except therefore by admitting or establishing new States, the House of Representatives can only be enlarged by a number which is some multiple of twice the number of States. For instance, the number of Original States being six, the number of members of the House of Representatives can—except as stated—only be increased by twelve, or twenty-four, or thirty-six, or some other multiple of twelve.




  ― 461 ―

Duration of House of Representatives.

28. Every House of Representatives shall continue for three years117 from the first meeting of the House, and no longer, but may be sooner dissolved118 by the Governor-General.

CANADA.—Every House of Commons shall continue for five years from the day of the return of the Writs for choosing the House (subject to be sooner dissolved by the Governor-General) and no longer.—B.N.A. Act, 1867, sec. 50.

HISTORICAL NOTE.—In the Constitutions of the Australian colonies, the duration of the Legislative Assembly has sometimes been computed from the day of the return of the writs, and sometimes from the day of the first meeting. By the Constitution Acts of New South Wales, Queensland, Tasmania, and New Zealand, the duration of the Legislative Assemblies of those colonies was formerly five years from the day of the return of the writs; but by amending Acts in each of those colonies the duration is now reduced to three years from the day of the return of the writs. (See Triennial Parliaments Act, 1874 [N S.W.], 37 Vic. No. 7; Constitution Amendment Act, 1890 [Q.], 54 Vic. No. 3; Constitution Amendment Act, 1890 [Tas.], 54 Vic. No. 58; Triennial Parliament Act, 1879 [N.Z.].) In Western Australia, under sec. 14 of the Constitution Act of that colony, the duration of the Legislative Assembly is four years from the day of the return of the writs. In Victoria, under sec. 19 of the Constitution Act of that colony, the duration of the Legislative Assembly was formerly five years from the return of the writs; but in 1859, by the Victorian Act 22 Vic. c. 89, sec. 2 (now re-enacted in the Constitution Amendment Act, 1890, sec. 127), the duration was limited to three years from the day of the first meeting. In South Australia, under the Constitution Act of that colony, the duration of the House of Assembly is three years from the day on which the House “shall first meet for the despatch of business.”

In the Sydney Convention of 1891, the clause as first drawn followed the practice in vogue in a majority of the colonies by providing for a duration of three years “from the day appointed for the return of the writs for choosing the House.” In Committee, Sir John Bray pointed out that in some of the colonies the writs were made returnable on different days, and as long as the elections were governed by the Electoral laws of the States there would be confusion. Sir Samuel Griffith urged that the practice in some of the colonies was erroneous, and that in England the writs were invariably returnable on the same day. After debate, the clause was amended, on Sir John Bray's motion, to make the duration date from “the day appointed for the first meeting of the House.” (Conv. Deb., Syd. [1891], p. 643–52.)

At the Adelaide session, 1897, the clause as introduced provided for a duration of “four” years from the date appointed for the first meeting of the House. In Committee, on Sir. Geo. Turner's motion, this was altered to “three” years. (Conv. Deb., Adel., p. 1031.) At the Sydney session, a suggestion by the Legislative Assembly of Western Australia, to make the term four years, was negatived. (Conv. Deb., Syd., 1897, p. 463.) At the Melbourne session, the clause was verbally amended after the fourth report.

§ 117. “Shall Continue for Three Years.”

DEMISE OF THE CROWN.—Under the law as it existed prior to the Revolution of 1688, the English Parliament, elected and duly constituted under the writs issued by one reigning sovereign, continued in existence from session to session until a change took place in the succession to the Crown, unless it was previously terminated by the prerogative act of Dissolution. There was no legal provision for its termination by effluxion of time. Its continuity depended only on the life or pleasure of its Royal originator—the King or Queen by whom the writs for its election were issued. It was a principle of the common law, that the created power terminated with the demise of the creating power.




  ― 462 ―

By the Act 6 and 7 Wm. and Mary c. 2, commonly known as the Triennial Act (1694), it was for the first time in English history declared that no Parliament should have any continuance longer than for three years only, at the farthest. The Act 1 Geo. I. c. 38 (1715), known as the Septennial Act, after reciting the Triennial Act, declared that the then existing Parliament and all future Parliaments “shall and may respectively have continuance for seven years and no longer” from the day appointed by the writ of summons for the meeting of Parliament, unless the Parliament should be sooner dissolved by the Crown. That Act is still in force in Great Britain.

The Triennial Act was a limiting Act; the Septennial Act succeeded it as a limiting Act. Without one or the other of those Acts the duration of Parliament would have remained determinable only by the death or pleasure of the Sovereign. The Septennial Act provided that, no matter how long the sovereign reigned, a Parliament should not continue for longer than seven years. It did not declare that the Parliament should not expire with the death of the Sovereign. Hence the common law doctrine, as to the effect of the demise of the Crown on any Parliament in being, remained in full force.

The practice of summoning a new Parliament immediately after the occurrence of a change in the succession to the Crown was found to be inconvenient, and it was apprehended that danger might arise through there being no Parliament in existence in case of a disputed succession. It was therefore enacted by 7 and 8 Wm. III. c. 15, that the Parliament in being should, if sitting, continue for six months after the demise of the Crown, unless sooner dissolved, and if not sitting should meet on the day fixed by the prorogation; and that, in case there was no Parliament in being, the last preceding Parliament should be convened. By the Act 6 Anne c. 41, s. 4, it was enacted that Parliament should not be determined or dissolved by a demise of the Crown, but should continue and be able to act for six months thereafter and no longer, unless sooner dissolved by the Successor to the Crown. And now by the Act 30 and 31 Vic. c. 102, s. 51 (Representation of the People Act, 1867), the British Parliament is no longer affected in any way by the demise of the Crown.

The effect of a demise of the Crown on the duration of an Australian Legislature was considered by the Privy Council in the case of Devine v. Holloway, 9 Weekly Reporter, 642. In November, 1856, John Devine instituted a suit in the Supreme Court of New South Wales to eject Thomas Holloway and others from certain lands in that colony, which he claimed as heir-at-law of Nicholas Devine, who in 1830 died intestate and seised of the property. On 13th July, 1837, three weeks after the death of His Majesty William IV., and before news of that event had reached the colony, the Governor and Legislative Council of New South Wales, by virtue of authority conferred on him by the Act 9 Geo. IV. c. 83, made an Ordinance enacting that the provisions of the English Statute of Limitations, 3 and 4 Wm. IV. c. 27, should become law in the colony. In the ejectment suit the defendants pleaded the Statute of Limitations in bar of the plaintiff's claim, and being nonsuited he appealed to the Privy Council. On his behalf it was contended, inter alia, that the Colonial Act adopting the English statute was null and void on the ground that the Legislative Council ceased to exist with the death of William IV., and that in order to acquire a new legal life it ought to have been reconstituted in the name of Her Majesty. This contention was overruled by the Privy Council. It was held that the authority of the Governor and Legislative Council was not determined by the demise of the Crown. During the argument, Counsel for the appellant contended that neither the Act 1 Wm. IV. c. 4, which validated acts done by Governors of Plantations after the expiration of their Commissions by demise of the Crown, nor the Act 1 Anne c. 2, which continues all civil and military offices, applied to a colonial Legislature. Lord Cranworth, however, seems from the brief report to have based the decision of the Privy Council upon the Succession Act, 6 Anne c. 41, sec. 8, which provides that no civil or military office within the kingdoms of Great Britain or Ireland “or any of Her Majesty's Plantations” should become void by reason of the demise of the Crown, but that the holder of any such office should continue in office for


  ― 463 ―
six months unless sooner removed; and it was held that the authority of the Governor and Legislative Council was not determined by the demise of the Crown.

The Constitutions of the Australian Colonies, as originally assented to by the Crown, provided that the Commissions of the judges of the Supreme Court should continue in force notwithstanding the demise of Her Majesty or of Her heirs and successors. They contained no special provisions relating to the effect of a demise of the Crown with reference to the duration of the Legislatures thereby created. The New South Wales Constitution Act, however, contained one section (33) which shows that in the view of the framers of the instrument the Parliament thereby created was not to be dissolved by demise of the Crown. That section, after prescribing the oath of allegiance to the Queen to be taken by Members of the Legislative Council and Legislative assembly before they could sit or vote, went on to declare:—

“And whensoever the demise of Her present Majesty or of any of Her Successors to the Crown of the said United Kingdom shall be notified by the Governor of the colony to the said Council and Assembly respectively, the members of the said Council and Assembly shall before they shall be permitted to sit and vote therein take and subscribe the like oath of allegiance to the successor for the time being to the said Crown.”

Section 4 of the Constitution Act of Queensland is the same in form and substance.

The Constitution Acts of Victoria, South Australia, and Tasmania, contain the usual sections formulating the oath of allegiance to the Queen to be taken by members of Parliament, but making no provision that upon the demise of Her Majesty they should take a like oath of Allegiance to Her Successor. It is open to argument whether the framers of these Constitutions acquiesced in the principle that the Legislatures should be terminated by demise of the Crown, or whether they were of opinion that the form of the instruments and the mode of constituting the proposed Legislatures rendered them free from the operation of the common law rule.

In 1876, however, the Parliament of Victoria passed an Act to amend the Electoral Act, 1865, and section 11 of the amending Act provided that the Parliament in being at any future demise of the Crown should not be determined or dissolved by such demise, but should continue so long as it would have continued but for such demise, unless it should be sooner prorogued or dissolved by the Governor. That section is now to be found in the Victorian Constitution Act Amendment Act, 1890, sec. 4. It was based on the Imperial Act 30 and 31 Vic. c. 102, s. 51. Upon the consideration of the clause in the Committee of the Legislative Assembly the Attorney-General, Mr. G. B. (afterwards Mr. Justice) Kerferd, was questioned by several legal members of the House as to its constitutional necessity. Mr. J. J. (now Judge) Casey thought the clause was unnecessary. He was of opinion that the rule of Common Law, that where a power was brought into existence by another power the created power terminated with the expiration of the creating power, did not apply to a colonial Legislature, the writs for the election of whose members were issued in the name of the Governor and not in the name of the Queen. Mr. Kerferd said that it was the opinion of some learned members of the legal profession that the clause was necessary. There certainly was a doubt about the matter, and in his opinion the doubt ought to be removed. However, he promised to consider the view submitted by Mr. Casey, and if it were clear beyond all doubt that the clause was unnecessary he would ask the House to strike it out at a subsequent stage. No further reference was subsequently made to the clause, which became law. (Vic. Parl. Deb., 12th Sept. [1876], vol. 24, p. 715.) On the authority of Devine v. Holloway, supra, it is submitted that the argument presented by Mr. Casey was a sound one, and that consequently there was no constitutional necessity for the passage of section 11 of the Electoral Act of Victoria, 1865. The fact that writs for the election of senators for each State are issued by the Governor thereof, and that writs for the election of members of the House of Representatives are issued by the Governor-General in Council, coupled with the further provision that senators are chosen for a fixed term of six years' duration and that the House of Representatives “shall continue


  ― 464 ―
for three years” subject to being sooner dissolved by the Governor-General, and further the forms of oath or affirmation in the schedule, by which members of the Federal Parliament swear or declare allegiance “to Her Majesty Queen Victoria Her Heirs and Successors according to law,” should be sufficient to bar the operation of the common law rule; and it therefore may be safely assumed that a demise of the Crown will not cause a dissolution of the Federal Parliament.

§ 118. “Sooner Dissolved.”

The House of Representatives may continue in existence for three years from the day of its first meeting, but it may be “sooner dissolved” by the Governor-General. Its normal term is therefore a triennial one, and is the same as that of the Legislative Assembly of New South Wales, the Legislative Assembly of Victoria, the Legislative Assembly of Queensland, the House of Assembly of South Australia, the House of Assembly of Tasmania, and the House of Representatives of New Zealand, which are elected for three years, but are liable to be sooner dissolved by the Crown. The Legislative Assembly of Western Australia is elected for four years, and the House of Commons of Canada for five years; both, however, being liable to be sooner dissolved by the Crown. The American House of Representatives is elected for two years, but is not liable to dissolution before the expiration of its term.

The right to dissolve the House of Representatives is reserved to the Crown. This is one of the few prerogatives which may be exercised by the Queen's Representative, according to his discretion as a constitutional ruler, and if necessary, a dissolution may be refused to responsible ministers for the time being. A refusal to grant a dissolution would no doubt be a ground for the resignation of the Ministry whose advice was disregarded. Nevertheless, such refusal could not be challenged as unconstitutional. During the year 1899, three precedents occurred in Australia, which show that in the exercise of this power of dissolution the Representative of the Crown is not a mere passive instrument in the hands of his Ministers. It is well known that when an adverse vote was, on 7th September, 1899, carried against Mr. G. H. Reid in the Legislative Assembly of New South Wales, he advised Lord Beauchamp to dissolve the House. That advice the Governor did not feel justified in accepting, and accordingly Mr. Reid resigned, and Mr. (now Sir William) Lyne formed a new administration. On 28th November following, the Kingston Ministry suffered a defeat in the House of Assembly of South Australia. Mr. Kingston applied to Lord Tennyson for a dissolution, which being refused, he resigned, and a new Ministry was formed by Mr. Solomon. And on 1st December of the same year, when a vote of want of confidence was carried against Sir George Turner in the Victorian Assembly, he applied to Lord Brassey for a dissolution, which was refused; and he then resigned, Mr. Allan McLean being sent for. These recent precedents show that the Representative of the Crown, in the exercise of its undoubted prerogative to grant or refuse a dissolution, can wield an important influence in the life of a Ministry, and in the duration and possible action of a Parliament.

The difference between a grant and a refusal of a dissolution is: (1) A grant of a dissolution is an Executive act, to which the Crown assents, and for which the Ministry tendering the advice and doing the act are responsible to Parliament and the country; (2) a refusal to grant a dissolution is not an Executive act; it is a negation of one, for which the Representative of the Crown is alone responsible, although it is sometimes stated that the incoming Ministry assumes the responsibility of the refusal by undertaking to carry on the Queen's Government for the time being.

The leading characteristics of this prerogative, and the general principles according to which the discretionary power of the Crown to dissolve or to decline to dissolve is exercised, may be gathered from the authorities. (See Note, “Dissolve,” § 63, supra.)




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29. Until the Parliament of the Commonwealth otherwise provides, the Parliament of any State may make laws for determining the divisions in each State119 for which members of the House of Representatives may be chosen, and the number of members to be chosen for each division120. A division shall not be formed out of parts of different States121.

In the absence of other provision, each State shall be one electorate.

UNITED STATES.—The times, places, and manner of holding elections for … 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 places of choosing senators.—Const., Art. I., sec. 4, sub-sec. 1. SWITZERLAND.—The elections for the National Council … are held in federal electoral districts, which in no case shall be formed out of parts of different Cantons.—Const., Art. 73. CANADA.—Until the Parliament of Canada otherwise provides, Ontario, Quebec, Nova Scotia, and New Brunswick shall, for the purposes of the election of members to serve in the House of Commons, be divided into electoral districts as follows.—B.N.A. Act, 1867, sec. 40.

HISTORICAL NOTE.—Clause 31, Chap. I. of the Commonwealth Bill of 1891 was as follows:—

“The electoral divisions of the several States for the purpose of returning members of the House of Representatives shall be determined from time to time by the Parliaments of the several States.”

At the Adelaide session, 1897, the clause was introduced and passed as follows:—

“Until the Parliament otherwise provides, the electoral divisions of the several States for the purpose of returning members of the House of Representatives, and the number of members to be chosen for each electoral division, shall be determined from time to time by the Parliaments of the several States. Until division each State shall be one electorate.”

At the Sydney session, a suggestion by the House of Assembly of Tasmania, to omit “Until the Parliament otherwise provides,” and a suggestion by both Houses of the Victorian Parliament, to omit “until division each State shall be one electorate,” were negatived. (Conv. Deb., Syd. [1897], pp. 454-5.) At the Melbourne session, after the first report, the clause was verbally amended on Mr. Barton's motion, and the words “No electoral district shall be formed out of parts of different States” were added. These words were taken from the Swiss Constitution (Supra), the necessity for them being due to the amendment already made in sec. 24, that members of the House of Representatives should be chosen not by “the people of the several States,” but by “the people of the Commonwealth.” (Conv. Deb., Melb., p. 1840.) After the fourth report, the clause was verbally altered.

§ 119. “The Divisions in each State.”

The electoral divisions for the House of Representatives, in each State, may, until the Federal Parliament interposes and deals with the subject, be determined by the State legislatures, subject to the one restriction that a division is not to be formed out of parts of different States. In America a similar power has been exercised by the State legislatures without check for many years, and electoral divisions have been, for party purposes, carved out in a manner which led to grave scandal and dissatisfaction. This reprehensible manipulation of constituencies developed the art known as “Gerrymandering,” so named because Essex, a district of Massachusetts was, for political reasons, so curiously shaped as to suggest a resemblance to a salamander, and Elbridge


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Gerry was the governor of the State who signed the Bill. (See Bryce, Am. Comm. 2nd ed. I. p. 121.) The grossly unjust apportionment of population of districts, made by partisan majorities in State Legislatures, eventually led to the intervention of the Courts, and certain State laws which were clearly in violation of the equality enjoined in their respective Constitutions were held invalid. (Foster, Comm. I. p. 399.) A law of a State, relating to electoral divisions, could not be held unconstitutional unless it was contrary either to Federal law or to the Constitution of the State in which it was challenged. (Id.)

“By the Apportionment Act of 25th February, 1882, Congress required, as the general rule, that the members from each State shall be ‘elected by districts composed of contiguous territory, containing as nearly as practicable an equal number of inhabitants, and equal in number to the number of representatives to which such State’ ‘may be entitled in Congress, no one district electing more than one representative.’ To the States is left, then, only the construction of such districts. Congress must find the constitutional warrant for this measure either in the clause which provides that ‘representatives shall be apportioned among the several States,’ &c., or in the clause which provides that Congress may prescribe regulations as to the times, places and manner of holding elections for representatives.” (Burgess, Political Sc. II. p. 48.)

“I think it cannot be reasonably doubted that the power to determine the manner of holding the Congressional elections includes the power to prescribe the scrutin d'arrondissement or district ticket as against the scrutin de liste or general ticket, or vice versa; but does it include the power to require the States to construct the districts of contiguous territory and of as nearly equal population as is practicable? It is perhaps too late to raise any doubts upon this point. Congress has certainly gone no further than a sound political science would justify, indeed, not so far as a sound political science would justify.” (Id. p. 49.)

§ 120. “Members to be Chosen for Each Division.”

The electorates in each State contemplated by this section are territorial divisions of the Commonwealth. Members of the House of Representatives are to be chosen in territorial divisions, within each State, but the members so chosen are members for their respective divisions, as parts of the Commonweath; they are not members “for the State.” The senators are “for the States;” the representatives are “for each division.” The divisions, altogether, constitute the Commonwealth. Consequently the House of Representatives is the Chamber in which the people of the Commonwealth, voting in Federal constituencies, are represented. In settling the number and boundaries of such divisions the State Parliaments are, for the time being, exercising a delegated authority; they are acting merely as legislative agents of the Federal Parliament, which may, at any time, interpose and undertake the work. This ultimate control over electoral divisions is another illustration of the national principles on which the House of Representatives is founded.

§ 121. “Out of Parts of Different States.”

The Swiss Constitution similarly provides that federal electoral districts “shall in no case be formed out of parts of different Cantons.” (Art. 73.) In the American Constitution, under which representatives are chosen “by the people of the several States,” no electoral division could cross a State boundary; but in this Constitution, under which (following the Swiss example) representatives are to be chosen by “the people of the Commonwealth,” it was desirable that this should be explicitly stated. At elections of the House of Representatives, therefore, State boundaries are merely recognized as boundaries of groups of electoral divisions—not as separating one people from another. This is a further index of the national character of the Constitution, and of the existence of a national citizenship. (See Notes, § 27, “Federal,” supra.)




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Qualification of electors.

30. Until the Parliament otherwise provides, the qualification of electors122 of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State; but in the choosing of members each elector shall vote only once123.

UNITED STATES.— … the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.—Const. Art. I. sec. ii. subs. 1. CANADA.—Until the Parliament of Canada otherwise provides, all laws in force in the several Provinces at the Union relative to … the voters at elections of such members, … shall respectively apply to elections of members to serve in the House of Commons for the same several Provinces.—B.N.A. Act, 1867, sec. 41. SWITZERLAND.—Every Swiss who has completed twenty years of age, and who in addition is not excluded from the rights of a voter by the legislation of the Canton in which he is domiciled, has the right to vote in elections and popular votes. Nevertheless the Confederation may by law establish uniform regulations for the exercise of such right.—Const., Art. 74.

HISTORICAL NOTE.—In the Commonwealth Bill of 1891 the clause was as follows:—

“The qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification for electors of the more numerous House of the Parliament of the State.”

In Committee, Mr. Deakin suggested that the Federal Parliament should have some power to fix a uniform qualification; but Sir Samuel Griffith urged the inconvenience of duplicating the electoral machinery, and thought that the States could be trusted here, as they were in America, to fix a democratic franchise. Dr. Cockburn moved to add:—

“But no property qualification shall be necessary for electors of the said House, and each elector shall have a vote for only one electoral district.”

This was criticized, partly as an interference with the States, which might endanger Federation in some colonies, and partly as involving difficulties of administration. After discussion. Dr. Cockburn withdrew his amendment to make room for a proposal by Mr. Barton that the Federal Parliament should have power to prescribe a uniform federal franchise. Mr. Baker feared that this would be an impediment to Federation; whilst Mr. Wrixon opposed it as being national rather than federal. It was urged in reply that the federal franchise was a national matter; but the amendment was negatived without division. Dr. Cockburn's amendment was then negatived by 28 votes to 9. (Conv. Deb., Syd. [1891], pp. 613–37.)

At the Adelaide session, 1897, the clause was introduced as it now stands, except that the concluding words were: “But in the choosing of such members each elector shall have only one vote.” The only debate was upon Mr. Holder's proposals for women's suffrage (see Historical Note, sec. 41). (Conv. Deb., Adel., pp. 715–32, 1193–7.) Similar amendments were made to those made in sec. 8 (Qualifications of electors of senators). (Id. pp. 1191, 1210.) At the Sydney session, a suggestion by the Legislative Assembly of New South Wales, to add “Provided that the Parliament may not enact that any elector shall have more than one vote,” was negatived as being unnecessary. (Conv. Deb., Syd., 1897, pp. 455–7.)

§ 122. “The Qualification of Electors.”

On the question of settling the franchise for the Lower House, two theories were advanced in the Convention, and each received support from federalists of different types and sympathies. One theory was that the franchise for both Houses should be treated as a State right, and that its determination should be constitutionally secured


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to the States as an unassailable prerogative. On the other hand, the fixing of the franchise for the national Chamber was, by many members, considered a matter in which the Commonwealth was pre-eminently interested, and they contended that it should be placed within the control of the Federal Parliament. In support of this view it was argued that, in voting for members of the House of Representatives, electors exercise a public function relating to the Commonwealth, and not one relating to the State in which they reside; that the ultimate safety and destiny of the Commonwealth depend upon the forces which find representation in the national Chamber; that the Parliament, composed of members representing both the State element and the National element in the composition of the Commonwealth, should have the right, in the last resort, to decide who were sufficiently qualified to be entitled to the privilege of participating in the exercise of political power—the right to prevent the enfranchisement of those not mentally and ethnically qualified, and to enforce the enfranchisement of those nationalized by law and experience and able and willing to discharge the duties pertaining to the suffrage.

In the Constitution of the United States of America, as originally framed, the settlement of the franchise for the House of Representatives was made a State right. Each State was left free to fix for itself, within its own limits, its conditions of suffrage. (Bancroft, vol. ii. p. 128.) Each State had the exclusive power to regulate the right of suffrage and to determine who should vote at federal elections in the State. (Huber v. Reily, 53 Penn. St. 115; Morrison v. Springer, 15 Iowa, 345.) The States, it was said, were the best judges of the circumstances and temper of their own people. Accordingly, the rule was adopted, in language partly reproduced in the above section of this Constitution, that “The qualifications of the electors shall be the same, from time to time, as those of the electors in the several States of the most numerous branch of their own legislatures.” Owing, however, to the unjust and impolitic manner in which some of the States discriminated in franchise legislation, the Constitution has been, on several occasions, amended in order to remove glaring abuses and to redress monstrous wrongs. First came the Fourteenth Amendment, which declared that—

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. … When the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of the State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”

This amendment having been found ineffectual to secure the political enfranchisement of the negroes, the Fifteenth Amendment was passed, providing that the right of citizens of the United States to vote should not be denied or abridged by the United States or any State on account of race, colour, or previous condition of servitude, and that the Congress should have power to enforce this article by appropriate legislation. “The Fifteenth Amendment,” says Dr. Burgess, “is negative language and does not directly confer upon any one the privilege of suffrage. It simply guards the individual against any discriminations in reference to the suffrage which may be attempted by the States, or by the government of the United States, on account of race, colour, or previous condition of servitude. This restriction, however, may indirectly confer suffrage: if, for example, a State law confers suffrage upon white persons having such and such qualifications, this provision of the fifteenth amendment would then operate to confer it upon other persons, not white, having the same qualifications.” (United States v. Reese, 92 U.S. 214; Neal v. Delaware, 103 U.S. 370; Political Sc. II. p. 42.)

These amendments of the American Constitution, recognizing a national citizenship and forbidding discriminations in franchise legislation by the States, show the tendency


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of the American Constitution to regard the franchise for the House of Representatives as a national question, in which the nation itself is concerned, and which the nation may at any time, by a further amendment, withdraw absolutely from the control of the States.

The Constitution of the Commonwealth, following the American precedent, starts with the electoral franchise in each State, prescribed by the law of the State as the qualification of electors of the more numerous House of the Parliament of the State. But the Federal Parliament may at any time by appropriate legislation, and without an amendment of the Constitution, deal either partly or wholly with the question, and impose a franchise for Federal elections. In the exercise of this power, however, there is one restriction provided by clause 41; that no adult person who has or acquires a right to vote at elections for the Legislative Assembly of a State, shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Federal Parliament. In other words, the Federal Parliament can pass an enlarged and liberalized franchise for the whole Commonwealth; but it cannot disqualify any adult person already entitled to a vote by the law of the State in which he or she resides. (See Note, § 139, infra.)

The qualifications of electors of the more numerous House of the Parliaments of the several States, and of the colony of New Zealand, may be here summarized.

New South Wales.—Every man of the age of 21 years, being a natural-born or naturalized British subject, unless disqualified, is entitled to be enrolled for the division of the Electoral District in which he resides, and to vote therein, provided that he holds an elector's right; to obtain which he must have been resident in the colony for one year (or, if naturalized, for one year after naturalization) and resident in the District for three months. (Parliamentary Electorates and Elections Act of 1893 [56 Vic. No. 38].) Number of electors enrolled, July, 1898, 324,338.

Victoria.—Every man of the age of 21 years, being a natural-born British subject (which is deemed to include naturalized subjects resident for 12 months in the colony), and not disqualified, is entitled to vote in any division of an Electoral District for which he holds an elector's right, or in which he is enrolled upon a “roll of rate-paying electors.” The qualification for an elector's right is either (a) residential—requiring residence for twelve months in the colony and for one month in the division of the District; or (b) non-residential—requiring possession of freehold estate within the district to the value of £50 or the annual value of £5. (Constitution Act Amendment Act of 1890, secs. 128–135.) By the Constitution Act Amendment Act, 1899 (known as the Plural Voting Abolition Act), it is provided that, after the expiration of the present Parliament, no person shall vote in more than one Electoral District at any election, or more than once at the same election. Number of electors enrolled for 1898, 252,560.

Queensland.—Every man of the age of 21 years, being a natural-born or naturalized British subject or a denizen of Queensland, unless disqualified, is entitled to be entered on the roll for any Electoral District if qualified within the District in any of the following ways:—(1) Residence; (2) Freehold estate of the value of £100; (3) Household occupation; (4) Leasehold estate of £10 annual value, held for at least 18 months, or having 18 months to run; (5) Pastoral license of £10 annual value. The qualifying period in the case of the residential, freehold, household, or pastoral qualification is six months; or, if the claimant has previously been an elector, three months. There is no limit to the number of Districts in which an elector may be enrolled; but no elector can claim a plural voting in any District. Aboriginal natives of Australia, India, China, or the South Sea Islands are not entitled to be enrolled, except in respect of a freehold qualification. (Elections Act of 1885 [49 Vic. No. 13]; Elections Act of 1897 [61 Vic. No. 26].) Number of electors in 1897, 81,892.

South Australia.—All British subjects of the age of 21 years (men and women), inhabitants of South Australia, who have been registered upon any Assembly roll for six months, may vote for members of the Assembly. In the Northern Territory, immigrants


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grants under the Indian Immigration Act, 1882, and all persons except natural-born British subjects and Europeans or Americans naturalized as British subjects, are disqualified. (Electoral Code, 1896.) Number of votes on the roll for the year 1897, 134,886.

Western Australia.—Every person of the age of 21 years, being a natural-born or naturalized British subject, is entitled to be registered as a voter, if he or she has resided in the colony for six months, and is entitled to vote after being registered for six months; and is also entitled to a property vote in every District in which he or she has a freehold qualification of £50 capital value, a leasehold or household qualification of £10 a year, or a Crown lease or license of £5 a year. (Constitution Acts Amendment Act, 1899.) Number of electors on the roll for the year 1897 (before the extension of the franchise to women), 15,029.

Tasmania.—Every man of the age of 21 years, being a natural-born or naturalized British subject, or having letters of denization, or a certificate of naturalization, who has resided in Tasmania for 12 months, is entitled to vote in any District if (1) his name appears in the assessment roll as owner or occupier of any property within the District; or (2) if he resides in the District, and is in receipt of income, salary, or wages of £40 a year. Board and residence, clothing, and services, are deemed income; house allowance and rations are included in the computation of wages. There is no limit to the number of districts in which an elector may have a property qualification. (Constitution Act Amendment Act, 1896, No. 2 [60 Vic. No. 54].) Number of electors on the roll for the year 1898, 31,613.

New Zealand.—Every inhabitant of New Zealand (male or female) of the age of 21 years, resident for one year in the colony, and for 3 months in an Electoral District, is entitled to vote in the District. There is no plural voting. Electoral Act, 1893 [No. 18]; Electoral Act Amendment Act, 1896 [No. 49].) Number of electors on the roll for 1896, male, 196,925; female, 142,305; total, 339,230.

General Summary.—These different franchises may be shortly described as follows: —New South Wales and Victoria, one man one vote. Queensland, manhood suffrage, with plural votes for property. South Australia and New Zealand, one adult one vote. Western Australia, adult suffrage, with plural votes for property. Tasmania, a small property or income qualification, with plural votes for property.

Under this clause electors of a State who are qualified under the laws thereof to vote for representatives in the State legislature, have the right to vote for members of the Federal legislature, which has power, by law, to protect such persons in that right. (Ex parte Siebold, 100 U.S. 371; ex parte Clarke, 100 U.S. 399; United States v. Gale, 109 U.S. 65. Cited in Baker, Annot. Const. p. 4.)

The qualifications of electors of the more numerous branch of the State legislature are not necessarily uniform in the various American States. In some cases aliens, who have declared their intention to become citizens, may vote for representatives to the State legislature, and so are qualified to vote for representatives in the Federal legislature. “Electors” are not necessarily citizens. The State may confer upon aliens the right to vote within the State, but it cannot make them citizens of the United States. (Dred Scott v. Sandford, 19 How. 404–414, id. p. 4.)

§ 123. “Each Elector Shall Vote only Once.”

This is a constitutional assertion of the principle of “one elector one vote” at federal elections; it does not interfere with State elections. It will be observed that no penalty is specified for a breach of this inhibition. As noted under section 8 the framers of the section were of opinion that, as every breach of a public statute is a criminal offence, punishable as a misdemeanour at common law, where the statute makes no explicit provision as to the mode of punishment, it was not necessary to encumber the Constitution with a penalty. (R. v. Walker [1875] L.R. 10 Q.B. 355; R. v Hall [1891] 1 Q.B. p. 767. See Note, § 76, supra.)




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Application of State laws.

31. Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being relating to elections124 for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives.

UNITED STATES.—The times, places, and manner of holding elections for..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. I., sec. iv., subsec. 1. CANADA.—Until the Parliament of Canada otherwise provides, all laws in force in the several Provinces at the Union relative to…the voters at elections of such members, the oaths to be taken by voters, the returning officers, their powers and duties, the proceedings at elections.…and the execution of new writs, in case of seats vacated otherwise than by dissolution,—shall respectively apply to elections of members to serve in the House of Commons for the same several Provinces.—B.N.A. Act. 1867, sec 41.

HISTORICAL NOTE.—Clause 43, Chap. I. of the Commonwealth Bill of 1891, was as follows:—

“Until the Parliament of the Commonwealth otherwise provides, the laws in force in the several States, for the time being, relating to the following matters, namely: The manner of conducting elections for the more numerous House of the Parliament, the proceedings at such elections, the oaths to be taken by voters, the Returning Officers, their powers and duties, the periods during which elections may be continued, the execution of new writs in case of places vacated otherwise than by dissolution, and offences against the laws regulating such elections, shall respectively apply to elections in the several States of members to serve in the House of Representatives.”

In Committee, Mr. Barton suggested omitting this list of matters, and substituting “elections for the more numerous House of the Parliament,” but Sir Samuel Griffith thought that would be too wide, and no amendment was moved. (Conv. Deb., Syd. [1891], pp. 652–3.)

At the Adelaide session, 1897, the clause was introduced and passed in substantially the same form. At the Melbourne session, after the first report, the clause was omitted, and a new clause (44A) was inserted, practically in the words of this section, but dealing with elections for both Houses. (Conv. Deb., Melb., pp. 1840, 1855. See Historical Note, sec. 10). After the fourth report, the clause was restored in its present form.

§ 124. “Laws Relating to Elections.”

The application of State laws in Federal elections has been already discussed under section 10 (see Note, § 80, supra.)

The implied power of the federal legislature is as much a part of the constitution as any of the expressed powers. Under this implied power it may provide by law for the protection of voters at elections of representatives, and may affix punishment for hindering or intimidating or maltreating voters intending to vote at such election. (Ex parte Yarbrough, 110 U.S. 651. Cited in Baker, Annot. Const. p. 9.)

At an election of burgesses for Parliament, the plaintiff, being entitled to vote, tendered his vote for two candidates; but such vote was refused, and notwithstanding those candidates for whom the plaintiff tendered his vote were elected, yet he brought an action against the constables of the Borough for refusing to admit his vote. It was decided that the action was maintainable, for it was an injury, though without any special damage. (Ashby v. White; Smith's Leading Common Law Cases, 9th ed. vol. i. p. 268.)

The provision of the laws relating to election of federal representatives which authorizes the deputy marshals to keep the peace at such election is constitutional. (Habeas Corpus Cases, 100 U.S. 371, 399. Cited in Baker, Annot. Const. p. 10.)

The federal legislature has power to fix penalties for violation of election laws, and for interference with electoral officers. In making electoral regulations, the federal legislature need not assume exclusive control. It has a supervisory power over the subject,


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and may either make entirely new regulations, or may supplement or modify the regulations made by the States. (Habeas Corpus Cases, 100 U.S. 371, 399, 404, 422. Id. p. 10.)

Rights and immunities created by or dependent upon the constitution can be protected by the federal legislature; with which the determination of the form and manner of such protection lies. (United States v. Reese, 92 U.S. 214. Id. p. 10.)

Writs for general election.

32. The Governor-General in Council may cause writs to be issued125 for general elections of members126 of the House of Representatives.

After the first general election, the writs shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof.

CANADA.—For the first election of members to serve in the House of Commons, the Governor-General shall cause writs to be issued by such person, in such form, and addressed to such Returning Officers as he thinks fit.—B.N.A. Act, 1867, sec. 42.

HISTORICAL NOTE.—Clause 42, Chap. I., of the Commonwealth Bill of 1891 was as follows:—

“For the purpose of holding general elections of members to serve in the House of Representatives the Governor-General may cause writs to be issued by such persons, in such form, and addressed to such Returning Officers, as he thinks fit.”

At the Adelaide session, the clause was passed in the same form, with the addition of the words: “The writs shall be issued within ten days from the expiry of a Parliament, or from the proclamation of a dissolution.” At the Sydney session, a verbal amendment suggested by the Legislature of Tasmania was negatived. (Conv. Deb., Syd. [1897], p. 463.) At the Melbourne session, on Dr. Cockburn's motion, the words “in Council” were added after “Governor-General.” (Conv. Deb., Melb., pp. 1929–31.) Verbal amendments were made before the first report and after the fourth report.

§ 125. “The Governor-General in Council may Cause Writs to be Issued.”

The question whether this section ought to have been framed so as to read that the writs should be issued by “the Governor-General” or by “the Governor-General in Council” was the subject of debate in the Convention. In the Adelaide Draft of the Constitution, the clause (then 41) provided that “the Governor-General” might cause writs to be issued. At the Melbourne Session Dr. Cockburn took objection to this form, and proposed to insert the words “in Council.” He submitted that without the addition of these words it would appear that the issue of the writs was a prerogative act, which the Governor-General could direct to be done without the advice of the Executive Council. In reply to this it was suggested that at the time of the holding of the first Federal elections there might not be an Executive Council in existence, and the issue of the writs would, in that event, necessarily be a personal act of the Governor-General. This view, however, was not generally concurred in, as one of the first executive acts of the Queen's Representative after the establishment of the Commonwealth would be to send for some leading statesman to form a Federal Ministry, which would of course constitute the first Executive Council. It was pointed out that, even if the proposed words were not inserted, the Governor-General would not act in such a matter without the advice of his ministers. Eventually the words were added. (See Note, § 60, supra.)




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§ 126. “General Elections of Members.”

The writs for general elections of members will be issued by the Governor-General in Council, through one of the Ministers of State. They will be directed to Returning Officers appointed by the Governor-General in Council, and will contain all the instructions and authority usually embodied in documents of this description, prescribing among other things the date for the receipt of nominations of candidates, the date for the holding of the elections, and the date for the return of the writs.

“At the beginning of a Parliament, the Return Book, received from the clerk of the Crown, is sufficient evidence of the return of a member, and the oaths are at once administered. If a member be elected after a general election, the clerk of the Crown sends to the Clerk of the house a certificate of the return received in the Crown Office; and the member must obtain a certificate from the Public Bill Office of the receipt of that certificate for production at the table, before the Clerk of the house will administer the oath.” (May, 10th ed. p. 165.)

Writs for vacancies.

33. Whenever a vacancy happens127 in the House of Representatives, the Speaker shall issue his writ for the election of a new member, or if there is no Speaker or if he is absent from the Commonwealth the Governor-General in Council may issue the writ.

HISTORICAL NOTE.—The clause in the Commonwealth Bill of 1891 was substantially to the same effect, except that the Speaker, unless the House was not sitting, was only empowered to issue the writ “upon a resolution of the House.” In Committee, Dr. Cockburn moved the omission of these words, but this was negatived. (Conv. Deb., Syd. [1891], pp. 641–3.)

At the Adelaide session, 1897, the clause was introduced in the same form. In Committee, Sir George Turner moved the omission of the words “upon a resolution of the House,” and this time the amendment was agreed to. (Conv. Deb., Adel., pp. 734–5.) At a later stage the clause was consequentially amended. (Conv. Deb., Adel., pp. 1197–8.) At the Melbourne session, amendments were made before the first report and after the fourth report.

§ 127. “Whenever a Vacancy Happens.”

Casual vacancies may happen, during the currency of each House of Representatives, by the death or resignation of a member, by the expulsion of a member for some offence not provided for by the Constitution, or by a member becoming subject to any of the disabilities mentioned in sections 44 and 45. When such vacancies arise the Speaker is authorized to issue writs for the election of new members. Such writs may be issued during a recess without the immediate authority of the House, in order that a representative may be chosen without loss of time by the division which is deprived of its member. (May, 10th ed. p. 599.)




  ― 474 ―

Qualifications of members.

34. Until the Parliament otherwise provides, the qualifications of a member128 of the House of Representatives shall be as follows:—

  • (i.) He129 must be of the full age of twenty-one years130, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector, and must have been for three years at the least a resident131 within the limits of the Commonwealth as existing at the time when he is chosen:
  • (ii.) He must be a subject of the Queen132, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State.
UNITED STATES.—No person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen.—Const., Art. I., sec. 2, sub-sec. 2. CANADA.—Until the Parliament of Canada otherwise provides, all laws in force in the several Provinces at the Union relative to…the qualifications and disqualifications of persons to be elected or to sit or vote as members of the House of Assembly in the several Provinces.…shall respectively apply to elections of members to serve in the House of Commons for the same several Provinces.—B.N.A. Act, 1867, sec. 41. SWITZERLAND.—Every lay Swiss citizen who has the right to vote is eligible for membership in the National Council.—Const., Art. 75.

HISTORICAL NOTE.—In the clause as introduced at the Sydney Convention of 1891, the qualification was permanently fixed, the words “until the Parliament otherwise provides” being absent. The qualification was substantially the same, except that no period of residence or naturalization was required. In Committee, on Mr. Deakin's motion, a requirement of three years' residence within the Commonwealth was added; and on Mr. Cuthbert's motion, the same period of naturalization was prescribed. (Conv. Deb., Syd. [1891], pp. 639–40.)

At the Adelaide session, 1897, the clause was introduced and passed in substantially its present form. In Committee, Mr. Walker proposed to substitute “twenty-five years” for “twenty-one years,” but this was negatived. (Conv. Deb., Adel., p. 733.) At the Sydney session, Mr. Lewis raised the question whether under this clause women would be eligible as members of the Parliament. A suggestion of the Legislature of Tasmania, requiring a member to be for three years a resident of the State for which he is chosen, was negatived. (Conv. Deb., Syd. [1897], pp. 457–8.) At the Melbourne session, drafting amendments were made before the first report and after the fourth report.

§ 128. “Qualifications of a Member.”

An analysis of this section is given in the notes to sec. 16, which provides that the qualifications of a senator shall be the same as those of a member of the House of Representatives. (See Note, § 95.)




  ― 475 ―

“The qualifications or positive requirements for holding a seat in the House of Commons are but three, viz.: the male sex, the full age of twenty-one years, and the quality of citizen or subject, either by birth or naturalization. The first of these requirements rests upon custom, which, therefore, either house might change through the exercise of its residuary power to judge of the qualifications of its members. The second and third, however, rest upon statutes of Parliament and cannot be modified by either house alone.” (Burgess Political Sc. II. p. 69.)

The constitution having fixed the qualification of members, no additional qualification can be added by the States. (Barney v. McCreery, Cl. and H. 176; Turney v. Marshall, 1 Cong. El. Cas. 167; Trumbull's Case, id. 618.) The Constitution of Illinois (1848) provided that: “The judges of the Supreme and Circuit Courts shall not be eligible to any other office of public trust or profit in this State or the United States during the term for which they shall be elected, nor for one year thereafter.” The House of Representatives of the United States held that this provision was void, in so far as it applied to persons elected members of the said house. (Turney v. Marshall, supra; Trumbull's Case, supra. Cited in Baker, Annot. Const. p. 5.)

The returns from the state authorities, showing or declaring that a certain person has been elected representative or senator in congress, are prima facie evidence of qualification only. (Spaulding v. Mead, Cl. and Hall, 157; Reed v. Cosden, id. 353.) And the refusal of the executive of the State to grant a certificate does not prejudice the right of one entitled to a seat.” (Richards' Case, Cl. and Hall, 95. Id. p. 10.)

In determining qualification each house has the right to examine witnesses and require the production of papers, and may punish witnesses for contumacy. (Kilbourn v. Thompson, 103 U.S. 168. Id. p. 10.)

§ 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).

§ 130. “Of the Full Age of Twenty-one Years.”

The Constitution of the United States of America, supra, provides that no person shall be a representative who is under the age of twenty-five years. The Canadian Constitution, supra, accepts, as the qualifying age of members elected in the several Provinces, the age fixed by the laws of the Provinces respectively; power being reserved to the Dominion Parliament to enact a uniform qualification.

“By standing order No. 12, the Lords prescribe that no lord under the age of twenty-one years shall sit in their house. By the 7 and 8 Will. III. c. 25, s. 8, a minor was disqualified to be elected to the House of Commons. Before the passing of that Act, several members were notoriously under age, yet their sitting was not objected to. Sir Edward Coke said that they sat ‘by connivance; but if questioned would be put out’; yet on the 16th December, 1690, on the hearing of a controverted election, Mr. Trenchard, though admitted by his counsel to be a minor, was declared, upon a division, to be duly elected. And even after the passing of the Act of Will. III., some minors sat ‘by connivance.’ Charles James Fox was returned for Midhurst when he was nineteen years and four months old, and sat and spoke before he was of age; and Lord John Russell was returned for Tavistock a month before he came of age.” (May, 10th ed. p. 28.




  ― 477 ―

§ 131. “A Resident.”

A resident is defined as one who dwells at a place which is his home or fixed abode for some time. An inhabitant is one who dwells permanently in a place, as distinguished from a transient resident or visitor. The term of residence within the limits of the Commonwealth, necessary to qualify a person to be a member of the Federal Parliament, is fixed by the Constitution at three years. It has been held that residence is not broken by a temporary absence if there is an animus revertendi. (Holborn Union v. Chertsey Union [1884] 54 L.J. M.C. 53.)

The Constitution of the United States of America, supra, provides that no person shall be a representative who is not, when elected, “an inhabitant of the State” in which he is chosen. The Constitution of the Commonwealth gives a wider qualification, by making a person who has resided for three years within the limits of the Commonwealth qualified to be a member. The requirement of a three years' residence within the limits of the Commonwealth is insisted on in order to secure the services of members substantially identified with the Commonwealth, but not necessarily identified for three years with any particular State, as “an inhabitant of that State.”

The word “resident” in this Constitution is not synonymous with “inhabitant.” An inhabitant of a State within the meaning of the American Constitution is one who in good faith is a member of the State and subject to its jurisdiction and to its laws, and entitled to all the privileges and advantages conferred thereby. (Electors v. Bailey, Cl. and H. 411.) Mr. McCrary, referring to this distinction, says, “it would seem that the framers of the constitution were impressed with a deep sense of the importance of an actual bona fide residence of the representative among the constituency—a residence in the sense of actual living among them and co-mingling with them.” (McCrary on Elections, § 289; Baker, Annot. Const. 5.)

The Constitution of the Commonwealth does not insist upon such a permanent residence in and identification with one State as a qualification of membership of the national Chamber. It recognizes citizenship, and residence within the Commonwealth for a period of three years, as a sufficient qualification, and one calculated to promote the view that a member of the national House is not a member for a State, or for the people of a State, but for a division which includes a quota of the people of the Commonwealth.

“The choice of members of Congress is locally limited by law and by custom. Under the Constitution every representative and every senator must when elected be an inhabitant of the State whence he is elected. Moreover, State law has in many, and custom practically in all, States, established that a representative must be resident in the congressional district which elects him. The only exceptions to this practice occur in large cities where occasionally a man is chosen who lives in a different district of the city from that which returns him; but such exceptions are extremely rare. This restriction surprises a European, who thinks it must be found highly inconvenient both to candidates, as restricting their field of choice in looking for a constituency, and to constituencies, as excluding persons, however eminent, who do not reside in their midst. To Americans, however, it seems so obviously reasonable that I found very few persons, even in the best educated classes, who would admit its policy to be disputable.” (Bryce, Amer. Comm. 1. p. 186.)

“It is remarkable that the original English practice required the member to be a resident of the county or borough which returned him to Parliament. This is said to be a requirement at common law (witness the words ‘de comitatu tuo’ in the writ for the election addressed to the sheriff); and was expressly enacted by the statute 1 Henry V. cap. 1. But already in the time of Elizabeth the requirement was not enforced; and in 1681 Lord Chief Justice Pemberton ruled that ‘little regard was to be had to that ancient statute 1 Henry V. forasmuch as common practice hath been ever since to the contrary.’ The statute was repealed by 14 Geo. III, cap. 50. (See Anson, Law and Custom of the Constitution, vol. i. p. 83; Stubbs, Constit. Hist. vol. iii. p. 424.) Dr. Stubbs observes that the object of requiring residence in early times was to secure ‘that the House of Commons should be a really representative body.’ Dr. Hearn (Government of England) suggests that the requirement had to be dropped because it was hard to find the country gentlemen (or indeed burgesses) possessing the legal knowledge and statesmanship which the constitutional struggles of the sixteenth and seventeenth centuries demanded.” (Id. p. 188.)




  ― 478 ―

“The English habit of allowing a man to stand for a place with which he is personally unconnected would doubtless be favoured by the fact that many ministers are necessarily members of the House of Commons. The inconvenience of excluding a man from the service of the nation because he could not secure his return in the place of his residence would be unendurable. No such reason exists in America, because ministers cannot be members of Congress. In France, Germany, and Italy the practice seems to resemble that of England, i.e., many members sit for places where they do not reside, though of course a candidate residing in the place he stands for has a certain advantage.” (Id. p. 188.)

§ 132. “Subject of the Queen.”

NATURAL-BORN SUBJECTS.—At common law everybody, whose birth happens within the allegiance of the Crown, is a natural-born subject. “The character of a natural-born subject, anterior to any of the statutes, was incidental to birth only; whatever were the situations of his parents, the being born within the allegiance of the king constitutes a natural-born subject.” (Per Kenyon, C.J., in Doe d. Durore v. Jones [1791], 4 T.R. p. 308; 2 R.R. 390.) This is still a ruling principle of our law. Children born in an English ship are born within the allegiance, and an ambassador's house is also reputed to be part of his sovereign's realm, so as to confer upon the children of the ambassador born therein the character of natural-born subjects. The status of the parents is of no account, provided only the offspring be born within the realm. “A child born of foreign parents, even during an accidental stay of a few days, is fully, and until the age of twenty-one years irretrievably, a British subject.” (Hall, Foreign Jurisdiction, p. 20.) The character of a natural-born subject is not given to persons born in a place which, though rightfully part of the dominions of the British Crown, happens to be at the time of the birth in the military possession of an enemy. The learning, old and new, of the subject will be found very fully in Calvin's Case (1608), 7 Coke Reps. 1, 18A; Collingwood v. Pace (1656), 1 Vent. 413; De Geer v. Stone (1882), 22 Ch. D. 243; Re Stepney Election Petition, Isaacson v. Durant (1886), 17 Q.B.D. 54; Encyclopedia of the Laws of England, vol. ix. p. 57; Westlake, Private International Law, Chap. XV.

By statute, children born out of the British Dominions, whose fathers or whose paternal grandfathers were natural-born subjects, are, except in certain cases, entitled to the rights of natural-born subjects. (See Imperial Acts, 4 Geo. II. c. 21, ss. 1, 2; 13 Geo. III. c. 21; Notes, § 193, “Aliens,” infra.)

NATURALIZED SUBJECTS.—Naturalization is the procedure by which an alien or foreigner is made a subject or citizen of any State. It is a legal adoption by one State of a person who is the subject or citizen of another State, admitting him to take part in its national polity, and conferring on him the rights and privileges of a national-born subject or citizen. (See Note, § 194, “Naturalization,” infra.)

“An alien is disqualified to be a member of either House of Parliament. The Act 12 and 13 Will. III. c. 2, declared that ‘no persons born out of the kingdoms of England, Scotland, or Ireland, or the dominions thereunto belonging (although he be naturalized or made a denizen, except such as are born of English parents), shall be capable to be of the privy council, or a member of either House of Parliament.’ The 1 Geo. I. stat. 2, c. 4, in order to enforce the provisions of the Act of William, required a special clause of disqualification to be inserted in every Naturalization Act; but as no clause of this nature could bind future Parliaments, occasional exceptions were permitted, as in the cases of Prince Leopold in 1816, and Prince Albert in 1840; and this provision of the 1st George I. was repealed by the 7 and 8 Vic. c. 66, s. 2. Later Naturalization Acts have since been passed, without such a disqualifying clause. And by the 33 and 34 Vic. c. 14, an alien to whom a certificate of naturalization is granted by the Secretary of State, becomes entitled to all political and other rights, powers, and privileges, and is subject to all the obligations of a British subject.” (May's Parl. Prac. 10th ed. p. 27-8.)




  ― 479 ―

Election of Speaker.

35. The House of Representatives shall, before proceeding to the despatch of any other business, choose a member to be the Speaker133 of the House, and as often as the office of Speaker becomes vacant the House shall again choose a member to be the Speaker.

The Speaker shall cease to hold his office if he ceases to be a member. He may be removed from office by a vote of the House, or he may resign his office or his seat by writing addressed to the Governor-General.

CANADA.—The House of Commons, on its first assembling after a general election, shall proceed with all practicable speed to elect one of its members to be Speaker.—B.N.A Act, 1867, sec. 44.

In case of a vacancy happening in the office of Speaker by death, resignation, or otherwise, the House of Commons shall, with all practicable speed, proceed to elect another of its members to be Speaker.—Id. sec. 45.

The Speaker shall preside at all meetings of the House of Commons—Id. sec. 46.

HISTORICAL NOTE.—Similar provisions are in the Constitutions of all the Australian colonies. In the Commonwealth Bill of 1891, the clause was substantially to the same effect, with the addition of a provision that “the Speaker shall preside at all meetings of the House of Representatives; and the choice of a Speaker shall be made known to the Governor-General by a deputation of the House.” At the Adelaide session, 1897, the clause was adopted in the same form; and at the Melbourne session drafting amendments were made before the first report and after the fourth report.

§ 133. “The Speaker.”

“The note of the Speaker of the British House of Commons is his impartiality. He has indeed been chosen by a party, because a majority means in England a party. But on his way from his place on the benches to the Chair he is expected to shake off and leave behind all party ties and sympathies. Once invested with wig and gown of office he has no longer any political opinions, and must administer exactly the same treatment to his political friends and to those who have hitherto been his opponents, to the oldest or most powerful minister and to the youngest or least popular member. His duties are limited to the enforcement of the rules and generally to the maintenance of order and decorum in debate, including the selection, when several members rise at the same moment, of the one who is to carry on the discussion. These are duties of great importance, and his position one of great dignity, but neither the duties nor the position imply political power. It makes little difference to any English party in Parliament whether the occupant of the chair has come from their own or from the hostile ranks. The Speaker can lower or raise the tone and efficiency of the House as a whole by the way he presides over it; but a custom as strong as law forbids him to render help to his own side, even by private advice. Whatever information as to parliamentary law he may feel free to give must be equally at the disposal of every member.” (Bryce, Amer. Comm. I. p. 134-5.)

“The duties of the Speaker of the House of Commons are as various as they are important. He presides over the deliberations of the house, and enforces the observance of all rules for preserving order in its proceedings; he puts every question, and declares the determination of the house. As ‘mouth of the house,’ he communicates its resolutions to others, conveys its thanks, and expresses its censure, its reprimands, or its admonitions. He issues warrants to execute the orders of the house for the commitment of offenders, for the issue of writs, for the attendance of witnesses in custody, for the bringing up prisoners in custody, and giving effect to other orders requiring the sanction of a legal form. He is, in fact, the representative of the house itself, in its powers, its proceedings, and its dignity. When he enters or leaves the house, the mace is borne before him by the Serjeant-at-arms; when he is in the chair, it is laid upon the table; and at all other times, when the mace is not in the house, it remains with the Speaker, and accompanies him upon all state occasions. The Speaker is responsible for


  ― 480 ―
the due enforcement of the rules, rights, and privileges of the house, and when he rises he is to be heard in silence. In accordance with his duty, he declines to submit motions to the house, which obviously infringe the rules which govern its proceedings; such as a motion which would create a charge upon the people and is not recommended by the Crown; a motion touching the rights of the Crown, which has not received the royal consent; a motion which anticipates a matter which stands for the future consideration of the house, which raises afresh a matter already decided during the current session, or is otherwise out of order. If a proposed instruction to a committee be out of order, the Speaker explains the nature of the irregularity. Amendments by the Lords to a bill which trench upon the privileges of the House of Commons, are submitted to the Speaker; and, if occasion requires, he calls the attention of the house to the nature of the amendments, and gives his opinion thereon. The Speaker also has decided that motions, which were brought forward as a matter of privilege, did not come within that category.” (May's Parl. Prac. 10th ed. p. 187-8.)

“In rank, the Speaker takes precedence of all commoners, both by ancient custom and by legislative declaration. The Act I. Will. and Mary, c. 21, enacts that the lords commissioners for the great seal ‘not being peers, shall have and take place next after the peers of this realm, and the Speaker of the House of Commons.’ By 2 and 3 Will. IV. c. 105, an Act for the better support of the dignity of the Speaker of the House of Commons, and by 9 and 10 Vic. c. 77, an Act relating to the officers of the house, it is provided that, in case of a dissolution, the then speaker shall be deemed to be the Speaker, for the purposes of those Acts, until a Speaker shall be chosen by the New Parliament.” (Id. p. 190.)

Absence of Speaker.

36. Before or during any absence of the Speaker134, the House of Representatives may choose a member to perform his duties in his absence.

CANADA.—Until the Parliament of Canada otherwise provides, in case of the absence for any reason of the Speaker from the Chair of the House of Commons for a period of forty-eight consecutive hours, the House may elect another of its members to act as Speaker, and the member so elected shall, during the continuance of such absence of the Speaker, have and execute all the powers, privileges, and duties of Speaker.—B.N.A. Act, sec. 47.

HISTORICAL NOTE.—In the Commonwealth Bill of 1891, the introductory words of the clause were “In case of the absence of the Speaker.” In the clause so introduced and adopted at the Adelaide session, 1897, these introductory words were omitted. At the Sydney session, the clause was altered by the Drafting Committee to its present form. (See Historical Note, sec. 18.)

§ 134. “Absence of the Speaker.”

“Formerly no provision was made for supplying the place of the Speaker by a deputy Speaker pro tempore, as in the Upper House, and, when he was unavoidably absent, no business could be done, but the Clerk acquainted the House with the cause of his absence, and put the question for adjournment. When the Speaker by illness was unable to attend for a considerable time, it was necessary to elect another Speaker, with the usual formalities of the permission of the Crown, and the royal approval. On the recovery of the Speaker, the latter would resign, or ‘fall sick,’ and the former was re-elected, with a repetition of the same ceremonies. In 1855, on the report of a select committee, standing order No. 83 was agreed to, which enabled the chairman of ways and means, as deputy Speaker, to take the chair during the unavoidable absence of the Speaker, and perform his duties. The provisions of this standing order received statutory authority by Act 18 and 19 Vic. c. 84.” (May's Parl. Prac. 10th ed. p. 191.)




  ― 481 ―

Resignation of member.

37. A member may by writing addressed to the Speaker, or to the Governor-General if there is no Speaker or if the Speaker is absent from the Commonwealth, resign his place135, which thereupon shall become vacant.

HISTORICAL NOTE.—In the Commonwealth Bill, 1891, the clause was in substantially the same form. At the Adelaide session, 1897, it was introduced and passed exactly as it stands.

§ 135. “Resign His Place.”

“In England it is a settled principle of parliamentary law, that a member, after he is duly chosen, cannot relinquish his seat; and, in order to evade this restriction, a member who wishes to retire, accepts office under the Crown, which legally vacates his seat, and obliges the house to order a new writ. The offices usually selected for this purpose are the offices of steward or bailiff of her Majesty's three Chiltern Hundreds of Stoke, Desborough, and Bonenham; or the steward of the manors of East Hendred, Northstead, or Hempholme, which, though the offices have sometimes been refused, are ordinarily given by the Treasury to any member who applies for them, unless there appears to be sufficient ground for withholding them. The office is retained until the appointment is revoked to make way for the appointment of another holder thereof.” (May's Parl. Prac. 10th ed. p. 605.)

“The obligation to serve and to continue to serve during the continuance of the Parliament has been relaxed, although by a different method. The Chiltern Hundreds continue, though in a different sense, to afford in the days of Victoria to unwilling legislators the protection which they afforded in the days of Edward the Second.” (Hearn's Gov. of Engl. p. 533.)

Vacancy by absence136.

38. The place of a member shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the House, fails to attend the House.

HISTORICAL NOTE.—In the Commonwealth Bill of 1891 the clause was as follows:—

“The place of a member of the House of Representatives shall become vacant if for one whole session of the Parliament he, without the permission of the House of Representatives entered on its journals, fails to give his attendance in the House.”

At the Adelaide session, 1897, the clause was introduced in substantially the same words; but in Committee, on Mr. Barton's motion, the words “two consecutive months of any session” were substituted for “one whole session.” (Conv. Deb., Adel., p. 734.) At the Sydney session, a suggestion by the Legislature of Tasmania, to substitute “thirty consecutive sitting days in any session” was negatived. (Conv. Deb., Syd. [1897], pp. 460-1.) At the Melbourne session, after the fourth report, the words “entered on its journals” were omitted.

§ 136. “Absence.”

It is an ancient constitutional rule that every person elected to serve in Parliament is bound so to serve. “Service in Parliament” was a duty which might be cast upon every person not expressly disqualified; this duty he could not decline or invade, and even the Crown could not exempt him from the obligation. It is a consequence of the same principle that members are bound to attend during the whole time that Parliament is sitting. Several Acts have been passed in England to enforce this duty; and though


  ― 482 ―
the Crown does not now interfere, the House of Commons claims, and occasionally exercises, the right to compel the attendance of all its members by a “call of the House.' (Hearn, Gov. of Eng. pp. 532-3.)

Where a statute provided that “if any legislative councillor shall for two successive seasons fail to give his attendance, without permission, his seat shall thereby become vacated,” and a councillor absented himself during the whole of three sessions, having previously obtained a permission for a year, which period of time, in the event, covered the whole of the first and part of the second session: Held, that his seat was vacated, as the permission did not cover two successive sessions. (Att.-Gen. [Queensland] v. Gibbon, 12 App. Cas. 442; Dig. of Engl. Case Law, vol. 3, p. 493.)

Quorum137

39. Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the members of the House of Representatives shall be necessary to constitute a meeting of the House for the exercise of its powers.

UNITED STATES.—…a majority of each (House) shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner and under such penalties, as the House may provide.—Const. Art. I. sec. v. sub-s. 1. SWITZERLAND.—In either Council a quorum is a majority of the total number of its members.— Const. Art. 87. CANADA.—The presence of at least twenty members of the House of Commons shall be necessary to constitute a meeting of the House for the exercise of its powers; and for that purpose the Speaker shall be reckoned as a member.—B.N.A. Act, 1867, sec. 48. GERMANY.—To render action valid, the presence of a majority of the statutory number of members shall be required—Const. Art. 28.

HISTORICAL NOTE.—Clause 39, Chap. I. of the Commonwealth Bill of 1891, was in the same words, and was adopted verbatim at the Adelaide session, 1897. In Committee at Adelaide, Mr. Carruthers contended that the quorum was too high, and suggested “twenty.” This was negatived. (Conv. Deb., Adel., p. 735.)

§ 137. “Quorum.”

The Constitutions of different countries vary widely as to the principle of the quorum and the mode of its determination. In the United States, in Switzerland, in Canada, and (as regards the Diet) in Germany, the quorum is fixed as a constitutional principle. In Great Britain, and France, on the other hand, the quorum is regarded as a matter of internal procedure, which each House determines for itself. This is regarded by Dr. Burgess as a defect, as it leaves to the caprice of an undefined number of members of each House the control over an important structural principle. (Pol. Science II., 124.) In the British colonies the British example has not been followed, the quorum being invariably prescribed in their Constitution Acts.

As to the proportion of members which should form a quorum, British and Continental ideas differ widely. On the Continent of Europe, and in the United States of America, the most general quorum is an absolute majority of members.

“In those cases where the quorum is fixed by the Constitutions there is substantial agreement upon the principle that the presence of a majority of the legal number of members in the House is necessary and sufficient to the transaction of legislative business. This principle is also adopted as a rule of procedure by both Houses of the French Legislature. The French Senate requires not only the presence of the majority of its members, but also their votes, for or against a motion. The quorum of the absolute majority, i.e., the majority of the legal number of members, may be said to be the modern principle in general legislation. Its reason is that the majority represents in this respect the whole, and is vested with the powers of the whole. If this were not the principle, legislative action would be exposed to the tricks and stratagems of the minority to an unbearable degree.” (Burgess, Pol. Science, ii. 124-5.)




  ― 483 ―

In the British Parliament, on the other hand, the quorum of the House of Commons has, from very early times, been fixed at 40, and that of the House of Lords at 3; though the Houses now number respectively 670 and 586 members. Dr. Burgess points out that the fact that, under the British system, legislation is controlled by the Ministry, would make it unnecessary, and often inconvenient, to require a majority quorum. (Pol. Science, ii. 125.) In the Parliaments of British colonies the quorum fixed is invariably less than an absolute majority; being sometimes fixed at one-third, or one-fourth, and sometimes at an arbitrary number representing even a lower proportion.

Voting in House of Representatives.

40. Questions arising in the House of Representatives shall be determined by a majority of votes other than that of the Speaker. The Speaker shall not vote unless the numbers are equal, and then he shall have a casting vote.

CANADA.—Questions arising in the House of Commons shall be decided by a majority of voices other than that of the Speaker, and when the voices are equal, but not otherwise, the Speaker shall have a vote.—B.N.A. Act, 1867, sec. 49.

HISTORICAL NOTE.—In the Commonwealth Bill of 1891, and in the Adelaide draft of 1897, the clause was in substantially the same form. At the Sydney session, a suggestion by the Parliament of Victoria was submitted to add a proviso that “in case of a proposed amendment of the Constitution the Speaker may vote notwithstanding the votes are not equal, and in such cases he shall not have a casting vote.” It was contended that in the important case of a constitutional amendment, where an absolute majority was required, the Speaker ought not to be deprived of the right to give a vote which might be required to make up the absolute majority. However, the amendment was negatived. (Conv. Deb., Syd. [1897], pp. 461-3.) At the Melbourne session, a drafting amendment was made after the fourth report.

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