6. Both Houses of the Parliament.

Right of electors of States.

41. No adult person138 who has or acquires139 a right to vote at elections for the more numerous House of the Parliament 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 Parliament of the Commonwealth.

HISTORICAL NOTE—At the Adelaide session of the Convention, on the discussion of the qualification of electors of the House of Representatives (see Historical Note, sec. 30) Mr. Holder proposed that “every man and woman of the full age of 21 years, whose name has been registered as an elector for at least six months, shall be an elector.” This was opposed as being likely to prejudice the prospects of the Constitution in the colonies where women's suffrage had not been adopted, and was negatived by 23 votes to 12.

Mr. Holder then, as a compromise, moved an amendment which contained the germ of the above section; namely, to add the words: “No elector now possessing the right to vote shall be deprived of that right.” The object was to prevent the Federal Parliament, when declaring a uniform franchise, from depriving the women of South Australia

  ― 484 ―
of the right to vote. Without such a provision, the apprehension was expressed that the women of South Australia might be deprived of the franchise by the Federal Parliament, and such a possibility might induce them to vote against the Constitution when submitted to the people. The proposal was at first objected to on the ground that it would embarrass and fetter the Federal Parliament in framing a uniform franchise; that it showed an unreasonable want of confidence in the Parliament; that the Parliament might be trusted not to do anything unreasonable or unjust. After some discussion the proposal was moulded into the following shape:—“But no elector who has at the establishment of the Commonwealth, or who afterwards acquires a right to vote at elections for the more numerous House of the Parliament of a State, shall be prevented by any law of the Commonwealth from exercising such right at the elections for the House of Representatives.” This was carried by 18 votes to 15. (Conv. Deb., Adel., pp. 715-32.)

Subsequently Mr. Barton endeavoured to secure the limitation of the clause to rights existing at the establishment of the Commonwealth, but Mr. Holder opposed this, contending that rights existing up to the time of the adoption of a federal franchise ought to be protected. The amendment was negatived; but Mr. Holder met one of Mr. Barton's objections by inserting the words “while the qualification continues,” so as not to protect any right which had been withdrawn by the State. (Conv. Deb., Adel., pp. 1191-7.) At the Melbourne session, Mr. Barton moved to limit the protection to rights which any elector “at the establishment of the Commonwealth or afterwards has under the law in force in any State at the establishment of the Commonwealth.” He pointed out that the clause as passed at Adelaide embodied certain anomalies which were not intended. He did not object to the provision that a person who at the establishment of the Commonwealth had a right to vote at State elections should retain a right to vote at Federal elections, and should not have that right taken away whilst he remained qualified as a State elector, even though the Commonwealth passed a law for a uniform suffrage. But under the clause as passed in Adelaide, a State might extend its franchise after the establishment of the Commonwealth—not only to women, but perhaps to all persons over sixteen years of age—and those persons would then acquire an inalienable right to vote at federal elections. He thought that went too far. Mr. Holder, however, and those who thought with him, were unable to accept this amendment. They wished to secure the franchise to women in every State which should adopt adult suffrage after the establishment of the Commonwealth, but before the fixing of a federal franchise. They were willing to meet Mr. Barton on the question of the infant vote, and finally he withdrew his amendment with a view to insert, after “afterwards,” the words “being an adult.” (Conv. Deb., Melb., pp. 1840-55.) Verbal amendments were made after the fourth report. (See Conv. Deb., Melb., pp. 2447-8.)

§ 138. “No Adult Person.”

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

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It would seem that the words of the Constitution do not justify this view. The power of the Parliament to deal with the qualification is derived from the provision in sec. 30 that “until the Parliament otherwise provides” the qualification of Federal electors in each State shall be that prescribed by the State for the electors of the Legislative Assembly of the State. By virtue of that provision, the Parliament has power (sec. 51—xxxvi.) to make laws for the peace, welfare, and good government of the Commonwealth with respect to the qualification of federal electors. The Constitution does not speak of a “uniform qualification” (except incidentally in sec. 128), and does not restrict the Parliament to prescribing a complete franchise or none.

It was even suggested by Mr. Higgins and Mr. O'Connor (Conv. Deb., Melb., pp. 1846-7) that, as a matter of strict law, the Parliament may prescribe different franchises in different States. This proposition seems much too broad; it would seem (see Note § 161, “Peace, Order and Good Government,” infra) that a federal law cannot discriminate between one State and another. But here a diversity of franchise in the different States is recognized by the Constitution itself, and it may be fairly argued that any federal law of uniform application, purporting to define in part or in whole the federal qualification, would—subject to the rights reserved by this section—be good and valid, notwithstanding that it did not wholly remove this diversity. This contention may be best explained by two illustrations. It seems clear that the Federal Parliament might lawfully pass a prohibitive law (somewhat in the manner of the Fifteenth Amendment of the Constitution of the United States) in such terms as these:—

“Notwithstanding the qualification which may be prescribed by the law of a State as the qualification of electors for the more numerous House of the Parliament of the State, no person otherwise qualified by the law of the State shall be prevented from voting at elections for either House of the Parliament of the Commonwealth by reason only that such person does not possess a property qualification or a qualification based on income or earnings.”

There would be no want of uniformity in such a law; on the contrary, it would remove a discrimination which at present exists. True, the whole franchise would not be uniform, but it would be more nearly uniform than at present, and the diversity would be due, not to the Federal Parliament, but to the Constitution itself. (Burgess, Political Sc. II. p. 42.) Again, it is conceived that it would also be competent for the Parliament to prescribe a franchise affirmatively by such a law as the following:—

“Every male adult subject of the Queen, who has been resident for one year within the Commonwealth and for three months in any federal electorate or electoral division shall, unless disqualified by this Act, be entitled to vote in such division at the election of members of either House of the Parliament. Persons of unsound mind, or in receipt of eleemosynary aid, or under sentence for any offence, are disqualified. Provided that this Act shall not be deemed to disqualify any adult person who under section 41 of the Constitution of the Commonwealth has a right to vote at such election.”

In such a law, again, there would be no want of uniformity; it would be distinctly in the direction of uniformity; and the diversity which still remained would be due, not to the Federal Parliament, but to the particular individual rights reserved by the Constitution itself.

To hold that such laws as these were unconstitutional, because they fell short of establishing a uniform franchise throughout the Commonwealth, would be to hold that the Federal Parliament is powerless to move a single step in the direction of uniformity unless it is prepared to adopt full manhood and womanhood suffrage. This section, it is contended, imposes no such prohibition. It does not forbid the Parliament to pass franchise laws which do not fulfil certain conditions, but preserves the right of certain persons, described in the section, to vote notwithstanding such laws.

§ 139. “Has or Acquires.”

The word “has” apparently refers to rights in existence at the establishment of the Commonwealth; the word “acquires” to rights acquired after that time. At Adelaide (Conv. Deb., pp. 1191-7) Mr. Barton endeavoured to secure the limitation of

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the clause to rights existing at the establishment of the Commonwealth, but was defeated. At Melbourne (Conv. Deb., pp. 1840–53) he endeavoured to limit it to rights acquired, before or after the establishment of the Commonwealth, under a State law in force at the establishment of the Commonwealth. This he ultimately withdrew on the insertion of the word “adult.”

It is clear that a right under this section to vote at federal elections can be acquired after the establishment of the Commonwealth, but it is not so clear that such a right can be acquired after the passing of a federal franchise law, or under State laws passed after the passing of such federal law. There possible interpretations may be suggested:—

  • (1.) That the right may be acquired at any time, under a State law passed at any time.
  • (2.) That the right may be acquired at any time, but only under a State law passed before a federal franchise is fixed.
  • (3.) That the right must be acquired by the “adult person” concerned before the federal franchise is fixed.

It seems clear from the following extracts that the first of these interpretations was not intended by Mr. Holder, the author of the clause:—

“There is a stage up to which the franchise is purely a State question, and the regulation of the franchise is within the power and authority of the State. The moment that ends is when the Federal Parliament passes a law fixing the franchise. What I want is that so long as the State is free to fix the franchise, any franchise they give shall be protected afterwards.… The right of the State to alter the franchise continues, not up to the time of the formation of the Constitution, but up to the time that the Federal Parliament frames a franchise, and I want all the rights granted up to that time preserved in the future. [Mr. Peacock: If the Federal Legislature has legislated?] No. I want the States to have their rights with regard to the franchise unimpaired up to the day when the federal franchise is indicated, and that whatever the franchise shall be at that date it shall be preserved, and so that no person having a right up to that date shall have it taken from him, and that this shall apply not only to South Australia, but also to other colonies who may widen their franchise before the federal franchise is provided.” (Mr. Holder, Conv. Deb., Adel., p. 1195.)

“I want the right of the State Parliament to be protected up to the moment when the Federal Parliament moves.” (Mr. Holder, Conv. Deb., Melb., p. 1843.)

These quotations make it clear that Mr. Holder did not contemplate the first interpretation, but his expressions seem to waver between the second and the third. In one passage he speaks of persons having a right when the federal franchise is framed—words which seem to contemplate the third interpretation; whilst elsewhere he speaks of protecting the State franchise as it existed at that date—words which involve the second interpretation. The latter seems to accord better with his general object of securing the federal franchise to women in those States where adult suffrage might exist when the federal franchise was framed.

Let us illustrate these distinctions. Suppose that the Federal Parliament fixes a federal franchise, such as suggested above, for male adults; and that afterwards Victoria passes a law extending the Victorian franchise to women. In South Australia the franchise was extended to women before the federal franchise was fixed. Then the three questions are:—

  • (1.) Are Victorian women entitled to vote at federal elections?
  • (2.) Is a South Australian woman, who has come of age since the federal franchise was fixed, entitled to vote at federal elections; or
  • (3.) Are only those South Australian women who were qualified voters at the date of the federal law entitled to vote at federal elections?

Mr. Holder's intention was that Victorian women, under those circumstances, should not be so entitled; though if the Victorian law had been passed before the federal franchise, it would have been otherwise. But he probably intended that South Australian

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women should be entitled to vote, whether actually qualified before or after the federal law, because the franchise under which they claim was in existence before the federal law.

That being the apparent intention, as collected from the debates, it remains to consider the real intention as expressed by the section itself. “No adult person who has or acquires a right” to vote at State elections “shall, while the right continues, be prevented by any law of the Commonwealth” from voting at federal elections. The Federal Parliament being empowered to deal with the qualification, it is not to be presumed that it was intended that the State Parliament should be able, after the Federal Parliament had legislated, to confer by fresh legislation any further right of voting at federal elections. Apparently the only logical way to gather this interpretation from the section, is either (1) to construe “acquires” as meaning “acquires before the framing the federal franchise;” or (2) to construe the word “prevented” as descriptive of a deprivation taking effect at the time of passing of the federal law—not a continuous deprivation enuring under the federal law. The effect of both these readings is the same; and it is submitted that this is the true construction—though it may certainly be argued that “acquires” is not expressly limited in point of time, and that a law which restricts the franchise to certain persons “prevents” all other persons from voting so long as it remains in force.

If this be granted, it becomes necessary to consider when a person “acquires” a right to vote; at the time when he—or she—individually becomes qualified, or at the time when the franchise under which he claims is enacted. Apart from the context, there could be hardly any doubt that no person can be said to have a right to vote until his qualification is complete. The other construction can only be argued on the assumption that a law giving the franchise to a certain class of persons confers a potential or inchoate right on all persons of that class—born or unborn—from the date of the passing of the law; or else that the section refers to the right of the person, not as an individual, but as one of a class. Either construction is very forced. A right would seem to mean a complete right; and the words “no adult person” make no allusion to a class, but single out the case of each individual person to be dealt with on its merits. No mention is made of the law under which such person claims the right, and it would seem that, if the date when the right was acquired is material, we must look to the date when it was actually acquired by the person in question, not the date when it was conferred by law upon all persons of a certain class.

Oath or affirmation of allegiance.

42. Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation140 of allegiance in the form set forth in the schedule to this Constitution.

CANADA.—Every member of the Senate or House of Commons of Canada shall, before taking his seat therein, subscribe before the Governor-General or some person authorized by him .… the oath of allegiance contained in the fifth Schedule to this Act.—B.N.A. Act, 1867, sec. 128.

HISTORICAL NOTE.—Clause 5, Chap. I., of the Commonwealth Bill of 1891 was in almost identical words, and was adopted at the Adelaide session, 1897. At the Melbourne session, verbal amendments were made before the first report and after the fourth report. In the Bill as introduced into the Imperial Parliament (when the Constitution was placed as a schedule to the Act), the words “to this Constitution” were added after “schedule” in this section.

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§ 140. “Oath or Affirmation.”

There are two forms of oath known in modern legal and official proceedings; first the adjuration by invocation of the Deity, with uplifted hand, commonly called the Scotch oath; secondly, the ordinary oath on the Bible, ending with the words “So help me God.” An affirmation is a solemn assertion or denial, omitting the invocation of the Deity.

Since the year 1534 it has been customary for members of both Houses of Parliament to take the oath of allegiance. (Anson, Law and Custom of the Constitution, 3rd ed. p. 6.)

An unsworn member is only debarred from sitting or voting; he is entitled to all the other rights, privileges, and immunities of a member. His seat, however, is liable to forfeiture if he fails to attend the House for a specified time. (See sections 20 and 38.)

By the English Parliamentary Oaths Act, 1866 (29 and 30 Vic. c. 19), one uniform oath, containing no reference to Christianity, was prescribed for members of the House of Commons. By the Promissory Oaths Act, 1868 (31 and 32 Vic. c. 72), the form of oath which appears in the schedule to this Constitution was adopted. In 1888, an Act was passed (51 and 52 Vic. c. 46) enabling members of the House of Commons, who objected to be sworn on the ground that the taking of an oath was contrary to their religious belief, to make a solemn affirmation in lieu of an oath. The affirmation prescribed begins with the words “I, A. B., do solemnly, sincerely, and truly declare and affirm,” followed by the other words required by law, and omitting any imprecation. This Act was passed as a result of Mr. Bradlaugh's celebrated contest with the House of Commons. (Attorney-General v. Bradlaugh, 14 Q.B D. 667.)

Member of one House ineligible for other.

43. A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House141.

CANADA.—A Senator shall not be capable of being elected or of sitting or voting as a member of the House of Commons.—B.N.A. Act, 1867, sec. 39.

HISTORICAL NOTE.—Clause 33, Chap. I., of the Commonwealth Bill of 1891 provides that “A Senator shall not be capable of being elected or of sitting as a member of the House of Representatives,” and the same clause was adopted at the Adelaide session, 1897. At the Sydney session, a suggestion of the Legislature of Tasmania, to omit the clause and substitute a provision applying to both Houses, was adopted. (Conv. Deb., Syd. [1897], pp. 459–60, 992–3, 1011.) At the Melbourne session, verbal amendments were made before the first report, and after the fourth report.

In Chap. V. of the Commonwealth Bill of 1891 there were two clauses (10 and 11) prohibiting a member of either House of the Federal Parliament from being chosen or sitting as a member of either House of a State Parliament, and providing that if a member of a State Parliament were elected to the Federal Parliament, his seat in the State Parliament should become vacant. (Conv. Deb., Syd. [1891], pp. 877–83.) In the Adelaide draft of 1897 these clauses were omitted, and in Committee, Sir Edward Braddon moved their insertion. It was thought, however, that it might be left to each State, if it thought fit, to disqualify members of the Federal Parliament from sitting in the State Parliament, and the clauses were negatived. (Conv. Deb., Adel., 1181–2.) At the Sydney session, a suggestion by the Legislature of Tasmania, that a member of a State Parliament should be incapable of sitting in either House of the Parliament of the Commonwealth, was negatived. (Conv. Deb., Syd. [1897], pp. 996–1011.)

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§ 141. “A Member of the Other House.”

“English peers are ineligible to the House of Commons, as having a seat in the Upper House; and Scotch peers, as being represented there by virtue of the Act of Union; but Irish peers, unless elected as one of the representative peers of Ireland, may sit for any place in Great Britain.” (May's Parl. Prac. 10th ed. p. 229.)

A provision to this effect, founded on the constitutional practice of the Imperial Parliament, is common to the Constitutions of all the Australian colonies.


44. Any person who—

  • (i.) Is under any acknowledgment of allegiance, obedience, or adherence143 to a foreign power, or is a subject or a citizen144 or entitled to the rights or privileges of a subject or a citizen of a foreign power: or
  • (ii.) Is attainted of treason145, or has been convicted and is under sentence, or subject to be sentenced, for any offence146 punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or
  • (iii.) Is an undischarged bankrupt or insolvent: or
  • (iv.) Holds any office of profit under the Crown147, or any pension148 payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or
  • (v.) Has any direct or indirect pecuniary interest in any agreement149 with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons:

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

But sub-section iv. does not apply to the office of any of the Queen's Ministers of State for the Commonwealth150, or of any of the Queen's Ministers for a State151, or to the receipt of pay, half pay, or a pension by any person as an officer or member of the Queen's navy or army152, or to the receipt of pay as an officer or member of the naval or military forces of

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the Commonwealth by any person whose services are not wholly employed by the Commonwealth.

HISTORICAL NOTE.—In the Commonwealth Bill of 1891, the provisions as to disqualifications and vacancies were contained in clauses 46, 47, 48, and 49 of Chap. I. Clause 46 provided for the disqualification of persons under certain disabilities; clause 47 declared vacant the seats of members becoming subject to such disabilities; clause 48 provided for both disqualification and vacancy in case of contractors; and clause 49 did the same in the case of persons holding or taking an office of profit under the Crown. The same arrangement was followed in the Adelaide draft of 1897; but at the Melbourne session, before the first report, the four clauses were re-arranged into two: one disabling certain persons from being chosen or sitting as members, the other vacating the seats of members in certain cases. The debates will be most conveniently referred to under the heads of the several disabilities:

Foreign Allegiance.—At the Adelaide session, Mr. Gordon suggested the insertion of words removing the disability of a person who has taken an oath of foreign allegiance, if he since become a naturalized British subject. No amendment was moved. (Conv. Deb., Adel., p. 736.)

Attainder or Conviction.—In the Commonwealth Bill of 1891, the provision was that a person “attainted of treason, or convicted of felony or any infamous crime” should be incapable “until the disability is removed by…the expiration or remission of the sentence, or a pardon, or release, or otherwise.” In Committee, Mr. Wrixon objected to the express provision that an ex-convict might be a member of Parliament, and proposed to make the disqualification permanent; but this was negatived by 27 votes to 9. (Conv. Deb., Syd. [1891], pp. 655–9.) At the Sydney session, 1897, Mr. Barton mentioned a suggestion by Sir Samuel Griffith to substitute more precise terms for “felony or other infamous crime.” (Conv. Deb., Syd. [1897], pp. 1020–2.) Accordingly at the Melbourne session, before the first report and after the fourth report, the provision was altered to its present form. (See Conv. Deb., Melb., p. 2445.)

Bankruptcy or Insolvency.—At the Sydney session, 1897, a suggestion by the Legislative Assembly of New South Wales, to omit the disqualification of “an undischarged bankrupt or insolvent or a public defaulter” was supported by Mr. Carruthers, but was negatived. (Conv. Deb., Syd. [1897], pp. 1015–9.) The same omission was again moved by Mr. Carruthers at the Melbourne session. It was argued on the one hand that bankruptcy did not necessarily involve moral delinquency; and on the other that, for the public security, a bankrupt ought to be disqualified until the court has pronounced upon his conduct and given him a discharge. The amendment was again negatived. (Conv. Deb., Melb., pp. 1931–41.)

Office of Profit.—Conv. Deb., Syd. (1891), pp. 660–2, 898; Conv. Deb., Adel., pp. 754–6; Conv. Deb., Syd. (1897), pp. 1028–9. At the Melbourne session, Sir John Forrest moved to insert an exemption in favour of “any of the Queen's Ministers in a State,” which was agreed to. (Conv. Deb., Melb., pp. 1941–2. See ib. p. 2448.)

At the Adelaide session, Sir Geo. Turner suggested the insertion of a provision similar to section 6 of the Constitution of Victoria, making it penal for any person, while he is a member of Parliament, or within six months after ceasing to be a member, to accept any office of profit under the Crown. After debate a proposal was made by Sir William Zeal, to the effect that until the Parliament otherwise provides, no person while a member or within six months of ceasing to be a member should hold or take any office which would disqualify a person from being chosen or sitting as a member. This was carried by 19 votes to 18. (Conv. Deb., Adel., pp. 739–53, 1198.) At the Sydney session, a suggestion by the Legislative Council of New South Wales, that this provision be omitted, was agreed to by 19 votes to 10. (Conv. Deb., Syd. [1897], pp. 1029–34.)

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Agreement with the Public Service.—Conv. Deb., Adel., pp. 736–7; Conv. Deb., Syd. (1897), pp. 1022–8.

General.—At the Sydney session, 1897, Mr. Glynn, in accordance with one of three alternative suggestions made by Sir Samuel Griffith, proposed to insert at the beginning of the clause the words “until the Parliament otherwise provides.” This was negatived by 26 votes to 8. (Conv. Deb., Syd. [1897], pp. 1012–5.)

§ 142. “Disqualification.”

Section 44 enumerates different kinds of status which, while they continue, render “any person” incapable of being chosen or of sitting as a senator or a member. That is to say, the continuance of the disqualifying status makes a “person” incapable of becoming or being a senator or a member.

If a disqualified person is declared duly elected, he is nevertheless not chosen within the meaning of the Constitution, and accordingly is not a senator or a member. He is forbidden to sit as a senator or a member, and is liable to a penalty if he does so sit. This section does not, like the next section, declare that “his place shall become vacant,” because he is incapable of having a place. The proper course for the House, upon proof of the disqualification, is either (1) to declare the candidate next on the poll duly elected, or (2) to declare that the seat is vacant—not that “his place is become vacant”—and require another election.

§ 143. “Allegiance, Obedience, or Adherence.”

Allegiance is the lawful obedience which a subject is bound to render to his sovereign. Allegiance is of three kinds: natural, acquired, or local. (1) Natural allegiance is that which every subject born from his birth owes to his sovereign. He is said to be a natural liegeman, as the sovereign is said to be his natural liege lord. (2) Allegiance is acquired where one is naturalized, or made a denizen. (3) The allegiance owed by every resident in the British dominions for the protection he enjoys is called local. It is customary, however, at the present day to restrict the use of the word to the first and second of these—the bond which attaches a subject to his sovereign—though some authors still speak of “local allegiance” as due by both British subjects and aliens alike, while within the dominions of the Crown, to distinguish it from the allegiance due by British subjects on foreign soil, and entitling them also to protection there. Under British law, until the Naturalization Act of 1870, no natural-born British subject could divest himself of his allegiance; but since that Act he may make a declaration of alienage, and thereafter he ceases to be a British subject. Aliens, on naturalization, are required to take an oath of allegiance (see Naturalization Act, 1870, 33 and 34 Vic. c. 14, s. 9; Naturalization Oaths Act, 1870, 33 and 34 Vic. c. 102; and Regulations issued by the Home Office in exercise of the powers contained in the Naturalization Acts, 1870. Encyclopedia of the Laws of England, vol. i. p. 225.)

§ 144. “A Subject or a Citizen.”

A subject is one who, from his birth or oath, owes lawful obedience or allegiance to his liege lord or sovereign. “Citizen” is the term usually employed, under a republican form of government, as the equivalent of “subject” in monarchies of feudal origin. (Ency. of the Laws of Eng., iii. p. 35.) See Note § 463 infra, “Subject of the Queen.”

“While the active duties of the citizen of a Commonwealth can hardly be discharged beyond the territories of that Commonwealth, the duties of the subject of a king, the subject, that is, of a personal master, are as binding on one part of the earth's surface as on another. I have just used words which go to the root of the matter. I have used words ‘citizen’ and ‘subject.’ The difference between the two conceptions can nowhere put on a more living shape than in the use of those two names. The Greek would have deemed himself degraded by the name of ‘subject.’ To him the word that best translates it expressed the position of men who, either in their own persons or

  ― 492 ―
in the person of the cities to which they belonged, were shorn of the common rights of every city, of every citizen. We use the word ‘subject’ daily without any feeling of being lowered by it. It has become so familiar that it is assumed as the natural phrase to express membership of a political body, and it is often used when it is quite out of place. I once read, and that in a formal document, of a ‘Swiss subject,’ and I had the pleasure of explaining that there had been no subjects, no Unterthanen, in Switzerland since 1798. And the question comes, What are we to say instead? ‘Swiss citizen,’ ‘French citizen,’ ‘citizen of the United States,’ have this awkwardness about them, that the community whose membership they express is not a city. The very awkwardness points to the main difference between the world of old Hellas and the world of modern Europe, the difference in scale. Be it kingdom or be it commonwealth, the State with which modern politics have to deal is not a city but something vastly greater.” (Freeman, Greater Greece and Greater Britain, pp. 23–24.)

§ 145. “Attainted of Treason.”

In 1870 O'Donovan Rossa, a convict in prison under sentence of penal servitude for life for felony under the Treason-Felony Act, 11 and 12 Vic. c. 12, was returned as member of the House of Commons for the County of Tipperary. It was contended that as he was not “attainted of treason” there was no disqualification, but the House determined that “John O'Donovan Rossa having been adjudged guilty of felony and sentenced to penal servitude for life, and being now imprisoned under such sentence, he has become and still continues incapable of being elected or returned as a member of the House,” and a new writ was issued.

§ 146. “Or has been Convicted, and is Under Sentence for any Offence.”

An offence is some act or omission which is triable and punishable, either on indictment or information, in a superior court before a jury, such as a felony or misdemeanor, or summarily before Justices, according to the direction of the law creating the offence. A person convicted of an offence of any description against the law of the Commonwealth or against the law of a State, whether it be felony or misdemeanor, or an offence punishable on summary conviction, and undergoing sentence of imprisonment for the term of one year or more, is disqualified for membership until he has served his sentence.

In England persons convicted of treason or felony, and sentenced to imprisonment with hard labour, or for a term exceeding twelve months, are incapable of being elected members of the House of Commons or of sitting and voting therein until they have served their sentence. (33 and 34 Vic. c. 23, sec. 2.) Conviction for misdemeanor or offences punishable summarily does not disqualify for membership of the House of Commons. The House, however, has jurisdiction to expel any member guilty of an infamous or disgraceful offence, even though it does not amount to a felony followed by a conviction and sentence as above defined.

In 1875 John Mitchel was returned to the House of Commons for the County of Tipperary, without a contest. It was well known that he was an escaped prisoner and had not completed the term of transportation for which he had been sentenced. A new writ was accordingly issued, and Mitchel was again returned to the House, after a contest. The defeated candidate filed a petition against Mitchel's return and praying for the seat. It was referred to the Court of Common Pleas in Ireland, and the petitioner, who had given due notice of the disqualification, was adjudged entitled to the seat. (May, 10th ed. pp. 33 and 619.)

§ 147. “Office of Profit under the Crown.”

A person holding an office of profit under the Crown is incapable of being chosen or of sitting as a senator or as a member of the House of Representatives. This general disqualification would apply to persons holding office under the Crown in any part of the British dominions, with the exceptions mentioned at the end of this section, viz., (1) the

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Queen's Ministers of State for the Commonwealth; (2) the Queen's Ministers for a State; (3) officers or members of the Queen's army or navy in receipt of pay, half-pay, or a pension; and (4) to officers or members of the naval or military forces of the Commonwealth whose services are not wholly employed by the Commonwealth.

The office of President of the Senate, or Speaker of the House of Representatives, with a salary annexed thereto, would not be an office of profit under the Crown. Those dignitaries are appointed by the respective Houses, not by the Crown; they are not servants of the Crown. (See Conv. Deb., Melb., p. 2448.)

“In England the holders of new offices under the Crown created since 25th October, 1705, are incapable of being elected or of sitting and voting (6 Anne, c. 41, s. 24) unless a statutory exception has been made in favour of such new offices. By sec. 25, members of the House of Commons accepting from the Crown old offices, that is to say, offices created before 1705, vacate their seats, but may be re-elected.” (Encycl. Laws of England, ix. p. 399.)

“No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the United States shall be a member of either House during his continuance in office.” (Const. of U.S. Art. I. sec vi. subs. 2.)

§ 148. “Pension.”

In England, persons in receipt of pensions from the Crown, during pleasure, are disqualified by 6 Anne c. 41, sec. 24; but under 32 and 33 Vic. c. 15 and c. 43, this does not apply to pensioners in the diplomatic and civil services. Persons disqualified under this Constitution are those in receipt of pensions payable out of the revenues of the Commonwealth during the pleasure of the Crown. Pensioners paid out of the Imperial revenue, or out of the revenues of States, are subject to no disability under this section.

§ 149. “Interest in any Agreement.”

This is a disability arising from any contract or agreement for valuable consideration, which any person may have entered into to supply any goods or perform any service to the Government of the Commonwealth. In England, Government contractors are disqualified under 22 Geo. III. c. 45, sec. 1. The reason for the disqualification of Government contractors is that they are supposed to be liable to the influence of their employers.

§ 150. “The Queen's Ministers of State for the Commonwealth.”

The Queen's Ministers of State for the Commonwealth, appointed by the Governor-General under sec. 64, are exempt from the general prohibition directed by sub-sec. iv. against office-holders and place-holders occupying seats in the Federal Parliament. It is one of the fundamental principles of the existing system of responsible government, that Ministers of the Crown should be capable of being members of Parliament, and that they should not hold office for any lengthened period, unless they are members; the reason being that they are responsible to Parliament for their political conduct, and should therefore be present in one of the Chambers in order to answer questions respecting the administration of their departments, to hear Parliamentary criticism, and, if necessary, to defend themselves when attacked.

§ 151. “The Queen's Ministers for a State.”

The members of a State legislature are not debarred from becoming members of the Federal Parliament (see Historical Note to sec. 43), and it was thought equally desirable that the members of a State Government should not be so debarred.

  ― 494 ―

§ 152. “Officer or Member of the Queen's Navy or Army.”

Under this exception to the rule for the exclusion of place-holders, a person in the receipt of pay, half-pay, or a pension, as an officer or member of the Imperial Navy, or of the Imperial Army, is qualified to be a member of the Federal Parliament. In England, the statute 6 Anne c. 41, s. 27, contains an exception in favour of officers in the army and navy accepting a new commission.

Vacancy on happening of disqualification.

45. If a senator or member153 of the House of Representatives—

  • (i.) Becomes subject to any of the disabilities mentioned in the last preceding section: or
  • (ii.) Takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors: or
  • (iii.) Directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for servicesrendered in the Parliament to any person or State:

his place shall thereupon become vacant.

HISTORICAL NOTE.—For reference to the corresponding provisions of the Commonwealth Bill of 1891, and the Adelaide draft of 1897, see Historical Note, sec. 44.

The provision as to fees or honorariums was first suggested by Mr. Carruthers at the Adelaide session, 1897, and ultimately agreed to. (Conv. Deb., Adel., pp. 737–8, 1034–44.) At the Sydney session, a suggestion of the Legislative Council of New South Wales, to omit the paragraph, was negatived. (Conv. Deb., Syd. [1897], p 1028.) At the Melbourne session, after the second report, Mr. Reid moved to insert “or for work done or services rendered in Parliament for or on behalf of any person or corporation.” This was agreed to. (Conv. Deb., Melb., pp. 1944–7.) After the fourth report, verbal amendments were made. (See Conv. Deb., Melb., pp. 2448–9.)

§ 153. “If a Senator or Member.”

The preceding section enumerates different kinds of status, which, while they continue, disqualify “any person” from becoming or being a senator or a member; this section enumerates different acts or events which, if they are done by or happen to a senator or a member, disqualify him from continuing to be a senator or a member. The preceding section refers to the continuing existence of a disqualifying status; this section to the happening of a disqualifying event. This section therefore deals only with senators or members who were qualified at the time of their election, but who become disqualified afterwards.

The disqualifying event mentioned in sub-sec. i. is the acquirement of any of the kinds of status enumerated in the preceding section. If such status existed at the time of the election, the person affected is not a senator or a member; he is dealt with under the preceding section. But if, after becoming a senator or a member, he “becomes subject to” the disability, eo instanti his seat is vacated under this section.

The disqualifying acts mentioned in sub-secs. ii. and iii. are acts which do not involve a continuing status, but which, if done by a senator or a member, vacate his seat.

  ― 495 ―

Penalty for sitting when disqualified.

46. Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it154 in any court of competent jurisdiction.

HISTORICAL NOTE.—In the Commonwealth Bill of 1891 the clause was substantially the same, except that the words “Until the Parliament otherwise provides” were absent. At the Adelaide session, 1897, the clause was introduced in nearly the same words. In Committee, on Mr. Barton's motion, the words “or disqualified or prohibited from holding any office” were inserted after “House of Representatives;” and the words “or accepts or holds such office” were inserted before “be liable.” (Conv. Deb., Adel., pp. 1198–9.) At the Sydney session, Dr. Quick called attention to the provision for a penalty, which had been decided to be unnecessary in respect of the prohibition against plural voting; and Mr. Barton agreed to bring before the Drafting Committee the question of its omission. (Conv. Deb., Syd., 1897, p. 1034.) Subsequently as a drafting amendment, the words previously inserted as to accepting or holding office were omitted, and the words “until the Parliament otherwise provides” were inserted. At the Melbourne session, verbal amendments were made before the first report and after the fourth report.

§ 154. “To any Person who Sues for it.”

A common informer is authorized to sue in a court of competent jurisdiction to recover the penalty for sitting and voting as a member of Parliament when disqualified. The Federal Parliament has power under sec. 77 to enable this penalty to be sued for in a State court.

Disputed elections.

47. Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election155 to either House, shall be determined by the House in which the question arises.

UNITED STATES.—Each House shall be the judge of the elections, returns, and qualifications of its own members.—Const. Art. I. sec. 5, sub-sec. 1. CANADA.—Until the Parliament of Canada otherwise provides, all laws in force in the several Provinces at the Union relative to…the trial of controverted elections and proceedings incident thereto, the vacating of seats of members…shall respectively apply to elections of members to serve in the House of Commons for the same several Provinces.—B.N.A. Act, sec. 41.

HISTORICAL NOTE.—The Commonwealth Bill of 1891, clause 21, Chap. I., provided that “If any question arises respecting the qualification of a senator or a vacancy in the Senate, the same shall be determined by the Senate.” Clause 44 made a similar provision in the case of the House of Representatives.

At the Adelaide session, 1897, the provision was that “Until the Parliament otherwise provides, any question respecting the qualification of a member, or a vacancy in the Senate, or a disputed return, shall be determined by the Senate;” and similarly for

  ― 496 ―
the House of Representatives. In Committee, Sir Edward Braddon proposed to substitute “High Court” for “Senate.” Mr. Wise, however, argued that questions of qualifications and vacancies ought to be decided by the House, though disputed returns ought to be decided by the High Court. Sir Edward Braddon withdrew his amendment, and on Mr. Wise's motion the words “or a disputed return” were omitted, with a view to dealing with the matter in another clause. (Conv. Deb., Adel., pp. 680–2.) Subsequently Mr. Barton proposed a new clause (48 A):—

“Until the Parliament otherwise provides, all questions of disputed elections arising in the Senate or the House of Representatives shall be determined by a federal court or a court exercising federal jurisdiction.” This was agreed to. (Conv. Deb., Adel., p. 1150.)

At the Sydney session, 1897, a suggestion by the Legislature of Tasmania, to omit the new clause and restore “disputed elections” to the “qualifications and vacancies” clauses, was considered. It was pointed out that there might be a difficulty as to the first election, before the Parliament could make suitable provision. The whole question was ultimately left to the Drafting Committee. (Conv. Deb., Syd., 1897, pp. 464–6, 993, 1034–5.) The Drafting Committee struck out all three clauses and substituted a clause substantially in the form of this section. At the Melbourne session, drafting amendments were made before the first report and after the fourth report.

§ 155. “Qualification .. Vacancy .. a Disputed Election.”

This section provides that, until legislation on the subject by the Federal Parliament establishing a different procedure, each chamber shall have exclusive jurisdiction to determine all questions which may arise respecting (1) the qualification of its members, (2) a vacancy which has arisen or which may be alleged to have arisen in its membership, and (3) a disputed election in which it is concerned. Such legislation may assume the form of transferring the jurisdiction to the Federal Courts or to the State Courts, to hear and determine all controversies of the kind.

“In England before the year 1770, controverted elections were tried and determined by the whole House of Commons, as mere party questions, upon which the strength of contending factions might be tested. In order to prevent so notorious a perversion of justice, the House consented to submit the exercise of its privilege to a tribunal constituted by law, which, though composed of its own members, should be appointed so as to secure impartiality, and the administration of justice according to the laws of the land, and under the sanction of oaths. The principle of the Grenville Act, and of others which were passed at different times since 1770, was the selection by lot of committees for the trial of election petitions. Partiality and incompetence were, however, generally complained of in the constitution of committees appointed in this manner; and, in 1839, an Act was passed establishing a new system, upon different principles, increasing the responsibility of individual members, and leaving but little to the operation of chance. This principle was maintained, with partial alterations of the means by which it was carried out, until 1868, when the jurisdiction of the house, in the trial of controverted elections, was transferred by statute to the courts of law.” (May's Parl. Prac. 10th ed. p. 613.)

“By the Election Petitions and Corrupt Practices at Elections Act, 1868, the Parliamentary Elections and Corrupt Practices Act, 1879, and the statute 44 and 45 Vic. c. 68, the trial of controverted elections is confided to two judges, selected, as regards England, from the Queen's Bench Division of the High Court of Justice; as regards Ireland, from the Court of Common Pleas at Dublin; and as regards Scotland, from the Court of Session. Petitions complaining of undue elections and returns are presented to these courts instead of to the House of Commons, as formerly, within twenty-one days after the returns to which they relate, and are tried by two judges of those courts, within the county or borough concerned. The house has no cognizance of these proceedings until their termination: when the judges certify their determination, in writing, to the Speaker, which is final to all intents and purposes. The judges are also to report whether any corrupt practices have been committed with the knowledge and consent of any candidate; the names of any persons proved guilty of corrupt practices; and whether corrupt practices have extensively prevailed at the election. They may also make a special report as to other matters which, in their judgment, ought to

  ― 497 ―
be submitted to the house. Provision is also made for the trial of a special case, when required, by the Court itself, which is to certify its determination to the Speaker. By sec. 5 of the Corrupt and Illegal Practices Prevention Act, 1883 (46 and 47 Vic., c. 51), the election court is directed also to report to the Speaker whether candidates at elections have been guilty by their agents of corrupt practices. The judges are also to report the withdrawal of an election petition to the Speaker, with their opinion whether the withdrawal was the result of any corrupt arrangement. All such certificates and reports are communicated to the House by the Speaker, and are treated like the reports of election committees under the former system. They are entered in the journals; and orders are made for carrying the determinations of the judges into execution.” (Id. p. 616.)

In 1872 the Legislature of the Province of Quebec passed an Act transferring to the Supreme Court of the Province the decision of controverted election cases which was previously vested in its own hands. Further and later provision was made by an amending act passed in 1875, by the 90th section of which it was declared that the judgment of the Supreme Court sitting in review “should not be susceptible of appeal.”

In 1874 the Canadian Parliament transferred the jurisdiction in the trial and decision of federal election petitions to the ordinary courts of the Provinces, subject to appeal to the Supreme Court of Canada. Amending and consolidating acts, dealing with same subject, were passed in 1886 and 1887. The procedure in the prosecution of such petitions is as follows: a petition is to be presented to the Provincial Court, which is to have the same powers as if such petition were an ordinary cause within its jurisdiction. Short periods of time are prescribed for giving notice of the petition, for taking preliminary objections to it, and for answering it, if those objections are overruled. Every petition is to be tried by one of the judges of the court, without a jury. The trial of every petition is to be commenced within six months of its presentation, and to be proceeded with from day to day until it is over. The court may enlarge the time for commencement of trial, or the period limited for taking any steps or proceedings. The judge may order a special case to be stated for the decision of any question, but it is “as far as possible” to be heard before that judge. An appeal from the judge's decision may be made to the Supreme Court of Canada within eight days. If there is no such appeal, the judge is, within four additional days, to certify his decision to the Speaker of the House of Commons, who is to take action thereupon “at the earliest practicable moment,” or “without delay.” If there is an appeal, the Supreme Court is to decide, its registrar is to certify the decision, and the Speaker to take action upon it. (Wheeler, C.C. p. 315.)

The validity of the Provincial and Federal Acts was affirmed by the Privy Council in Theberge v. Laudry (1876), 2 App. Ca. 102; Valin v. Langlois (1879), 5 App. Ca. 115, and Kennedy v. Purcell (1888), 14 Sup. Ct. (Canada) Rep. 453; 59 L.T. 279 P.C. On the question whether an appeal should be allowed to the Queen in Council, in controverted election cases, the following extracts from judgments of the Privy Council may be cited:—

“Now the subject-matter, as has been said, of the legislation is extremely peculiar. It concerns the rights and the privileges of the electors, and of the legislative assembly to which they elect members. Those rights and privileges have always, in every colony, following the example of the mother country, been jealously maintained and guarded by the legislative assembly. Above all, they have been looked upon as rights and privileges which pertain to the legislative assembly, in complete independence of the Crown. so far as they properly exist. And it would be a result somewhat surprising, and hardly in consonance with the general scheme of the legislation, if, with regard to rights and privileges of this kind, it were to be found that in the last resort the determination of them no longer belonged to the legislative assembly, no longer belonged to the superior court which the legislative assembly had put in its place, but belonged to the Crown in Council, with the advice of the advisers of the Crown at home, to be determined without reference either to the judgment of the legislative assembly, or of that court which the legislative assembly had substituted in its place. These are considerations which lead their lordships not in any way to infringe, which they would be far from doing, upon the general principle that the prerogative of the Crown, once established, cannot

  ― 498 ―
be taken away, except by express words; but to consider with anxiety whether in the scheme of this legislation it ever was intended to create a tribunal which should have, as one of its incidents, the liability to be reviewed by the Crown under its prerogative. In other words, their lordships have to consider, not whether there are express words here taking away prerogative, but whether there ever was the intention of creating this tribunal with the ordinary incident of an appeal to the Crown. In the opinion of their lordships, adverting to these considerations, the 90th section, which says that the judgment shall not be susceptible of appeal, is an enactment which indicates clearly the intention of the legislature under this Act,—an Act which is assented to on the part of the Crown, and to which the Crown, therefore, is a party,—to create this tribunal for the purpose of trying election petitions in a manner which should make its decision final to all purposes, and should not annex it to the incident of its judgment being reviewed by the Crown under its prerogative. In the opinion, therefore, of their lordships, there is not in this case, adverting to the peculiar character of the enactment, the prerogative right to admit an appeal, and therefore the petition must be refused.” (Per Lord Cairns in Theberge v Laudry, 2 App. Ca. 107-8.)

“Suppose we recommend Her Majesty to reverse the judgment, how would that decree be carried into execution? It would go to the House of Commons and be reported to the Speaker. The Speaker could not act on his own authority, and could only act by order of the House: suppose the House to say, ‘Her Majesty has no prerogative to do this, and we refuse to carry it out.’ Then there would be an immediate conflict between the House of Commons of the Dominion and Her Majesty. It would not be a very prudent thing for us to advise Her Majesty to reverse a judgment unless we can see our way to having it carried into execution when Her Majesty ordered it. Suppose the House of Commons, on the report of the Supreme Court that both parties had been guilty of bribery, ordered a new writ, but Her Majesty orders that writ to be recalled, or upset the election which had taken place under it. It appears to me there is no mode of carrying out the decree; and we would not advise Her Majesty to reverse a decree unless we saw a mode of carrying the decree into execution.” (Per Sir Barnes Peacock, in Kennedy v. Purcell, 59 L.T. 279 P.C., on a motion for leave to appeal; Wheeler, C.C. 314.)

Allowance to members.

48. Until the Parliament otherwise provides, each senator and each member of the House of Representatives shall receive an allowance148 of four hundred pounds a year, to be reckoned from the day on which he takes his seat.

UNITED STATES.—The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States.— Const., Art. I., sec. 6, sub-s. 1.

HISTORICAL NOTE.—Clause 45, Chap. I. of the Commonwealth Bill of 1891 was as follows:—

“Each member of the Senate and House of Representatives shall receive an annual allowance for his services, the amount of which shall be fixed by the Parliament from time to time. Until other provision is made in that behalf by the Parliament, the amount of such annual allowance shall be Five Hundred Pounds.”

In Committee, Mr. Wrixon suggested that “allowance for his services” was a misdescription; it was merely an allowance for reimbursement of expenses. Mr. Marmion moved the omission of the words “for his services,” but this was negatived. (Conv. Deb., Syd. [1891], pp. 653-4.)

At the Adelaide session, 1897, the clause as introduced was to the same effect, except that the sum was £400. In Committee, Mr. Gordon moved to substitute £500, but this was negatived by 26 votes to 9. (Conv. Deb., Adel., pp. 1031-4.) At the Sydney session, a suggestion by the Legislative Council of South Australia and the Legislature of Tasmania, to reduce the allowance to £300, was negatived. A suggestion by the Legislative Assembly of Victoria, to omit “on which he takes his seat,” and insert “of his election,” was negatived. A new clause suggested by the Legislative Council of South Australia, to prevent a Minister from drawing both a salary and his

  ― 499 ―
allowance as a member, was negatived, as being a matter for federal legislation. (Conv. Deb., Syd. [1897], pp. 993-6.) At the Melbourne session, drafting amendments were made before the first report and after the fourth report.

§ 156. “Allowance.”

The system known as payment of members has found a place in the Constitution. Each senator and each member of the House of Representatives is entitled to receive an allowance of £400 a year, to be reckoned from the day on which he takes his seat. But neither the principle nor the amount of payment are permanent constitutional provisions. Without an amendment of the Constitution, the Federal Parliament may at any time either abolish payment of members or reduce or increase the allowance which each member is to receive, or alter the method of apportioning the allowance, providing that each member shall be paid according to the distance which he travels or the attendance which he gives at the sittings of his House.

Payment of members of Parliament is not a modern political innovation. It was known and practised in the early history of parliamentary representation in England. (See Hearn's Gov. of Eng. p. 526, cited infra.) It was adopted in the Federal Constitution of the United States. (Art I. sec. 6.) It has been the subject of prolonged controversy in British colonies during the last forty years, and it is now generally regarded as an essential condition of democratic government, especially in young communities. It is in force in most of the responsible government colonies, although in several instances it was not carried without bitter opposition and memorable contests.

In the Dominion of Canada each member of the Senate and of the House of Commons is entitled to an allowance of ten dollars per day for his attendance at Parliament during a session not exceeding thirty days in duration. For a session lasting longer than thirty days each member is paid $1000. In addition to this remuneration, a member is allowed ten cents per mile expenses in travelling from his division or electorate to the seat of government, and return once during the session. If a member fail to attend the sittings of his House, and his absence is not caused by illness, eight dollars for each day on which he does not attend are deducted from his allowance. Members of the Legislative Assembly of New South Wales (elected) are paid £300 per year, in addition to which they are allowed to travel free on the government railways and tramways. Members of the Legislative Council (nominated by the Crown) are not paid, but they have similar privileges on the railways. Members of the two Houses of the Victorian Parliament (elected) have respectively remuneration and railway privileges similar to those of New South Wales. Members of both Houses (elected) of the South Australian Parliament are paid at the rate of £200 per year, and in addition enjoy railway facilities. In New Zealand the members of the Legislative Council (nominated by the Crown) are paid at the rate of £150 per year, whilst members of the House of Representatives (elected) receive £240 per year. Members of the Legislative Assembly of Queensland (elected) are entitled to £300 per year, and in addition an allowance of 1s. 6d. per mile on expenses for travelling by land, and the actual cost of travelling by sea for one journey per session from their electorates to the place where the Parliament meets and return. Queensland Legislative Councillors (nominated by the Crown) receive no remuneration. The members of both Houses of the Parliament of Tasmania receive £100 per year, with free passes over the government railway lines. In the United States of America the salary of a senator, representative or territorial delegate in Congress is fixed at $5000 per year with travelling expenses at the rate of 20 cents per mile for one journey per session, from the member's State or electorate to the seat of government and return.

“Another change that time has wrought in the Commons of the Plantagenets relates to the payment of members for their services. This practice, like that of resiancy, was coeval with representation. The writs de expensis levandis date from the reign of Henry the Third. In subsequent reigns they were issued with as much regularity as the writs of summons. The payment was levied on the several constituencies; and was calculated

  ― 500 ―
for the actual period of attendance, and for the time spent in going or returning, according to the distance in each case of the representative from the place at which Parliament met. At first the rate of wages varied according to the rank of the representative or the dearness of the season or other considerations. A Knight by order was paid more than an Esquire, and the latter more than a citizen or burgess. Finally the rate settled down at four shillings a day for Knights of the shire, and half that sum for representatives of towns. Few questions of those times excited greater interest than this payment of members.” (Hearn's Gov. of Engl. p 526.)

“The reign of Elizabeth may probably be taken as the period at which honorary service in Parliament became general. The importance of the House of Commons had greatly increased. The wealth of the country had also increased. Four shillings and two shillings were much less important sums to the subjects of the Tudors than they had been to the victors of Cressy or of Agincourt. The remuneration in honour thus became a sufficient inducement to serve, without the inducement in wages. It is of course impossible to fix a precise date for a change which was probably gradual.” (Id. p. 529.)

“But although the right has long been in abeyance, the legal obligation of constituencies has never been removed. In the Long Parliament of Charles the Second the arrears due to members must have amounted to a considerable sum. Accordingly when one of its members, Sir Thomas Shaw, sued out his writ de expensis against the town of Colchester, a general alarm was excited; and a bill was introduced to exonerate the electors from the payment of wages to any member of that Parliament. This measure, however, did not become law; and the old common law right still remains. The last instance in which it was exercised appears to have been in 1681, when, in the fourth Parliament of King Charles, John King sued out his writ against the burgesses of Harwich. It thus appears that by our ancient constitutional usage no persons were bound to serve in Parliament gratuitously; that the payment of members was a charge upon the communities which those members were chosen to represent; that this payment was originally intended merely as an indemnity and not as a source of gain; and that the disuse of this practice is due to the influence of social changes, and not to any formal alteration of the law.” (Id. p. 530.)

By s. 2 of the New South Wales Parliamentary Representatives' Allowance Act, 1889, “every member of the Legislative Assembly now serving or hereafter to serve therein” was to receive an allowance, which was to be payable “to every such member of this present Legislative Assembly now serving … and to every such member hereafter elected, from the time of his taking his seat, and in every case until he shall resign, or his seat be vacated, or until Parliament shall be dissolved, or shall expire by effluxion of time” :—Held, that for the purposes of the Act the Legislative Assembly must be regarded as a permanent body, and that the allowance was intended to be made to members of future Assemblies as well as of that which existed when the Act was passed. (Att.-Gen. New South Wales v. Rennie, 1896, App. Ca. 376.)

Privileges, &c., of Houses.

49. The powers, privileges, and immunities157 of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament158, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

CANADA.—The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.—B.N.A. Act, 1867, sec. 18.

HISTORICAL NOTE.—Clause 8, Chap. I. of the Commonwealth Bill of 1891 was to the same effect. In Committee, several members thought that the word “powers” was too large; and Mr. Wrixon suggested that it should be declared that the powers should

  ― 501 ―
not exceed those of the House of Commons. A proposal by Mr. Adye Douglas, to omit “powers,” was negatived. (Conv. Deb., Syd. [1891], pp. 585-7.)

At the Adelaide session, 1897, the clause was introduced in substantially the same form, and in Committee some verbal amendments were made. (Conv. Deb., Adel., pp. 635, 1189.) At the Melbourne session, verbal amendments were made before the first report and after the fourth report.

§ 157. “Powers, Privileges, and Immunities.”

The rights, duties, powers, privileges, and immunities of each House of the British Parliament, and of the committees and members of each House, form a part of the common law technically called the lex et consuetudo parliamenti. This law of Parliament is only to be collected “out of the ancient rolls of Parliament and other records, and by precedents and continual experience.” (Coke, 4 Inst. 15.) The sole evidence of the ancient law of Parliament is to be found in the declarations, customs, and usages of Parliament. Each House may expound the law of Parliament and vindicate its own privileges, but no new privileges can be created. In 1704 at a joint conference of the Lords and Commons, it was resolved: that neither House of Parliament has any power by vote or declaration to create for itself new privileges not warranted by the known laws and customs of Parliament. (May, 10th ed. p. 61.)

POWERS And PRIVILEGES.—The following are among the principal powers and privileges of each House, and of the members of each House, of the Imperial Parliament, as now known to the law:—

  • (i.) The power to order the attendance at the bar of the House of persons whose conduct has been brought before the House on a matter of privilege.
  • (ii.) The power to order the arrest and imprisonment of persons guilty of contempt and breach of privilege.
  • (iii.) The power to arrest for breach of privilege by the warrant of the Speaker.
  • (iv.) The power to issue such a warrant for arrest, and imprisonment for contempt and breach of privilege, without showing any particular grounds or causes thereof.
  • (v.) The power to regulate its proceedings by standing rules and orders having the force of law.
  • (vi.) The power to suspend disorderly members.
  • (vii.) The power to expel members guilty of disgraceful and infamous conduct.
  • (viii.) The right of free speech in Parliament, without liability to action or impeachment for anything spoken therein; established by the 9th article of the Bill of Rights.
  • (ix.) The right of each House as a body to freedom of access to the sovereign for the purpose of presenting and defending its views.

BREACHES OF PRIVILEGES.—The following are instances of breaches of privileges:—

  • (i.) Wilful disobedience to the standing rules and orders of the House passed in the exercise of its constitutional functions.
  • (ii.) Wilful disobedience to particular orders of the House, made in the exercise of its constitutional functions.
  • (iii.) Wilfully obstructing the business of the House.
  • (iv.) Insults, reflections, indignities and libels on the character, conduct and proceedings of the House and of its members.
  • (v.) Assaults on members of the House.
  • (vi.) Interference with the officers of the House in the discharge of their duties.

  ― 502 ―

ENFORCEMENT OF PRIVILEGES.—The privileges of Parliament are enforced, and breaches thereof punished, by the power vested in each House to order the arrest and imprisonment of offenders. The power of commitment, with all the authority which can be given by law, is said to be the Keystone of Parliamentary privilege.

“Either House may adjudge that any act is a breach of privilege and contempt; and if the warrant recites that the person to be arrested has been guilty of a breach of privilege, the courts of law cannot inquire into the grounds of the judgment, but must leave him to suffer the punishment awarded by the High Court of Parliament, by which he stands committed.” (May's Parl. Prac. 10th ed. p. 66.)

“The Habeas Corpus Act is binding upon all persons whatever, who have prisoners in their custody; and it is therefore competent for the judges to have before them persons committed by the Houses of Parliament for contempt; and it is the practice for the Serjeant-at-arms and others, by order of the house, to make returns to writs of habeas corpus.” (Id. p. 67.)

“But although the return is made according to law, the parties who stand committed for contempt cannot be admitted to bail, nor the causes of commitment inquired into, by the court of law.” (Id. p 67.)

“It may be considered, accordingly, as established, beyond all question, that the causes of commitment by either house of Parliament, for breaches of privilege and contempt, cannot be inquired into by courts of law; but that their ‘adjudication is a conviction, and their commitment, in consequence, an execution.’ No other rule could be adopted consistently with the independence of either house of Parliament; nor is the the power thus claimed by Parliament greater than the power conceded by the courts to one another.” (Id. p. 67.)

“One qualification of this doctrine, however, must not be omitted. When it appears, upon the return of the writ, simply that the party has been committed for a contempt and breach of privilege, it has been universally admitted that it is incompetent for the courts to inquire further into the nature of the contempt; but if the causes of commitment were stated on the warrant, and appeared to be beyond the jurisdiction of the house, it is probable, judging by the opinion expressed by Lord Ellenborough, in Burdett v. Abbot (5 Dow 165; 14 East 1), and by Lord Denman in the case of the sheriff of Middlesex (11 A. and E. 273), that their sufficiency would be examined. The same principle may be collected from the judgment of the Exchequer Chamber in Gosset v. Howard (10 Q.B. 359), where it is said ‘It is presumed, with respect to such writs as are actually issued by superior courts, that they are duly issued, and in a case in which they have jurisdiction, unless the contrary appears on the face of them.” (Id. p. 68.)

IMMUNITIES.—The following are instances of Parliamentary immunities:—

  • (i.) Immunity of members for anything said by them in the course of Parliamentary debates.
  • (ii.) Immunity of members from arrest and imprisonment for civil causes whilst attending Parliament, and for forty days after every prorogation, and for forty days from the next appointed meeting.
  • (iii.) Immunity of members from the obligation to serve on juries.
  • (iv.) Immunity of witnesses, summoned to attend either House of Parliament, from arrest for civil causes.
  • (v.) Immunity of Parliamentary witnesses from being questioned or impeached for evidence given before either House.
  • (vi.) Immunity of officers of either House, in immediate attendance and service of the House, from arrest for civil causes.

WHAT ARE NOT PRIVILEGES.—Neither House has a right to promulgate standing rules and orders, or to make or enforce any particular votes or resolutions, which are contrary to the common law, or to the statute law of the country. Several historical cases have established the principle that there are defined limits to parliamentary privilege, and that any attempted exercise of privilege, in excess of that recognized by law, if not checked by the force of public opinion, may be pronounced illegal on appeal to the courts of law. It is an acknowledged right of the House of Commons to expel a member, who disgraces or defies it, but the House could not legally go further and declare him disqualified for re-election.

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“In 1764, John Wilkes was expelled, for being the author of a seditious libel. In the next Parliament (3rd February, 1769) he was again expelled for another libel; a new writ was ordered for the county of Middlesex, which he represented, and he was re-elected without a contest; upon which it was resolved, on the 17th February, ‘that, having been in this session of Parliament expelled this house, he was and is incapable of being elected a member to serve in this present Parliament.’ The election was declared void: but Mr. Wilkes was again elected, and his election was once more declared void, and another writ was issued. A new expedient was now tried: Mr. Luttrell, then a member, accepted the Chiltern Hundreds, and stood against Mr. Wilkes at the election, and, being defeated, petitioned the house against the return of his opponent. The house resolved that, although a majority of the electors had voted for Mr. Wilkes, Mr. Luttrell ought to have been returned, and they amended the return accordingly. Against this proceeding the electors of Middlesex presented a petition, without effect, as the house declared that Mr. Luttrell was duly elected. These proceedings were proved by unanswerable arguments to be illegal; and on the 3rd May, 1782, the resolution of the 17th February, 1769, was ordered to be expunged from the journals, as ‘subversive of the rights of the whole body of electors of this kingdom.’ In 1882, Mr. Bradlaugh, having been expelled, was immediately returned by the electors of Northampton; and no question was raised as to the validity of his return.” (May's Parl. Prac. 10th, p. 53.)

The House of Commons could not, by passing a particular or general order authorize the publication of parliamentary papers containing libels. In the case of Stockdale v. Hansard (1836), 9 A. and E. p. 1, it was held to be no defence in law, to an action for publishing a libel, that the defamatory matter was part of a document which was, by order of the House of Commons, laid before the House, and which was afterwards, by order of the House, printed and published by the defendant. In consequence of that decision the Act 3 and 4 Vic. c. 9 was passed which provided that where an action or criminal prosecution, similar to the above, is commenced, it can be stayed by bringing before the court or judge a certificate under the hand of the Lord Chancellor, or of the Speaker of the House of Commons, to the effect that the publication in question was by order of either House, together with an affidavit verifying the certificate. What could not be legally done by one House under cover of privilege could, without any difficulty, be legalized by an act of Parliament; the power of Parliament being unlimited.

PRIVILEGES OF COLONIAL LEGISLATURES.—The law and custom of Parliament (lex et consuetudo parliamenti) is not a part of the common law which Englishmen are presumed to have carried with them, as their political birthright and heritage when they founded new settlements and colonies beyond the seas. The inherent powers and privileges of colonial legislative bodies which have no express grant of powers and privileges similar to those of the British Parliament, have been considered and expounded by the highest legal tribunals of the Empire in a number of leading cases. The principles affirmed were (1) that a colonial legislative body, whether it has been established by Royal Charter, or by statute of the Imperial Parliament, is not entitled to enjoy and exercise the powers, privileges, and immunities of the Houses of the British Parliament, unless those powers, privileges, and immunities have been expressly conferred upon such a body by Imperial statute; (2) that such legislative assemblies can, without express grant, exercise all regulating and self-preserving powers that are necessary for their existence, and for the proper exercise of the functions they are intended to execute. Whatever, in a reasonable sense, is necessary for these purposes is impliedly granted, whenever any such legislative body is established by competent authority. These principles are founded on the maxim, “quando lex aliquid alicui concedit, conceditur et id sine quo res ipsa esse non potest.” For those purposes protective and self-defensive authority only, and not punitive, are necessary. If a member of a colonial Legislative Assembly is guilty of disorderly conduct in the House, while it is sitting, he may be removed or excluded for a time or even expelled. The power to suspend a member guilty of obstruction or disorderly conduct, during the continuance of any sitting, was held to be reasonably necessary for the proper exercise of the functions of any Legislative Assembly. It was also held that the same doctrine of reasonable

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necessity would authorize a suspension until submission or apology by the offending member, but that such legislative bodies had no power to order the imprisonment of disorderly members or of other persons guilty of breach of privilege and contempt. (Kielley v. Carson, 4 Moore, P.C. 63; Doyle v. Falconer, L.R. 1 P.C. 328; Fenton v. Hampton, 11 Moo. P.C. 360; Barton v. Taylor, 11 App. Ca. 197.)

Sec. 35 of the Constitution Act of New South Wales, scheduled to 18 and 19 Vic. c. 54. enacted that the Legislative Council and Legislative Assembly of that colony should, from time to time, prepare and adopt standing rules and orders, provided that such rules and orders should be approved by the Governor. In pursuance of this power the Assembly adopted a standing order as follows: “In all cases not specially provided for hereinafter, or by sessional or other orders, resort shall be had to the rules, forms, and usages of the Imperial Parliament, which shall be followed so far as the same can be applied to the proceedings of this House.” At the time when the standing order was so approved, it was one of the rules or usages of the Imperial Parliament for either House of Parliament to suspend from the service of the House for such period as it should name, or, without naming any period of suspension, until it should give directions in the matter, any member persistently and wilfully obstructing the business of the House. Subsequently to the passing of the standing order a rule was adopted by the House of Commons, authorizing the suspension of an obstructing member for a week on the first occasion, for a fortnight on the second occasion, and for a month on the third or any other occasion. The effect of this standing order was considered in 1884 by the Supreme Court of New South Wales, and afterwards by the Privy Council, on appeal, in the case of Taylor v. Barton (6 N.S.W. L.R. 1, 11 App. Ca. 197), in which the plaintiff, a member, sued the Speaker of the Legislative Assembly to recover damages for assault in directing the Serjeant-at-Arms to remove him from the Chamber. The plaintiff had been “suspended from the service of the House” for obstruction. No term of suspension was specified in the resolution directing suspension. Within a week from the passing of the resolution of suspension Mr. Taylor re-entered the chamber and was thereupon removed, which constituted the assault complained of.

It was held by the Supreme Court, and by the Privy Council on appeal, that the resolution must not be construed as operating beyond the sitting during which the resolution was passed; that the standing order of the Legislative Assembly adopting so far as is applicable to its proceedings the rules, forms, and usages in force in the British House of Commons, and assented to by the Governor, was valid, but must be construed to relate only to such rules, forms, and usages as were in existence at the date of the order. (Barton [appellant] v. Taylor [respondent], 11 App. Ca. p. 197.)

The Privy Council was of opinion that the authority conferred upon the Legislative Assembly, by the Constitution Act, was not limited by the principles of common law applicable to those inherent powers which, without express grant, must be implied from mere necessity; but that its authority was sufficient to enable the Assembly to adopt from the Imperial Parliament, or pass by its own authority, any standing order giving itself power to punish an obstructing member, or remove him from the Chamber for any period longer than the current sitting. This of course could not be done by the Assembly without the Governor's assent. The affirmance of the judgment appealed from was founded on the view, not that it could not have been done, but that nothing appeared on the record which gave the resolution, suspending the respondent, a longer operation than the current sitting. (Barton v. Taylor, 11 App. Ca. 197.)

Section 34 of the Constitution Act of Victoria, scheduled to 18 and 19 Vic. c. 55 (1st July, 1855), authorized the Legislative Council and Legislative Assembly to prepare and adopt standing rules and orders, which, when approved by the Governor, should be binding and of full force in law. Sec. 35 of the same Act provided:—

“It shall be lawful for the Legislature of Victoria by any Act or Acts to define the privileges, immunities, and powers to be held, enjoyed, and exercised by the Council and Assembly and by the members thereof respectively. Provided that no such

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privileges, immunities, or powers shall exceed those now held, enjoyed, and exercised by the Commons, House of Parliament, or the members thereof.”

Section 35 of the Constitution of South Australia (24th Oct., 1856), contained a similar clause enabling the Parliament of that colony to declare its privileges in like manner. In pursuance of the power conferred by sec. 35 the Parliament of Victoria passed the Act 20 Vic. No. 1, of which sec. 3 (re-enacted in sec. 10 of the Constitution Act Amendment Act, 1890) was as follows:—

“The Legislative Council and Legislative Assembly of Victoria respectively, and the committees and members thereof respectively, shall hold, enjoy, and exercise such and the like privileges, immunities, and powers as, and the privileges, immunities, and powers of the said Council and Assembly respectively, and of the committees and members thereof respectively, are hereby defined to be the same as, at the time of the passing of ‘The Constitution Statute’ were held and enjoyed and exercised by the Commons House of Parliament of Great Britain and Ireland and by the committees and members thereof, so far as the same are not inconsistent with the said Act, whether such privileges, immunities, or powers were so held, possessed, or enjoyed by custom, statute, or otherwise.”

On 29th April, 1862, Mr. George Dill, the publisher of the Argus, was arrested on a warrant signed by the Speaker of the Legislative Assembly, by direction thereof, on a charge of having printed and published a libel concerning the Assembly and one of its committees. On his being brought to the bar of the House, Mr. Dill was adjudged guilty of contempt, and was ordered to be detained in custody for the space of one month. Mr. Dill applied for, and was afterwards brought before a judge of the Supreme Court on, a writ of habeas corpus. Mr. Palmer, the Serjeant-at-Arms, made a return to the writ, justifying detention under the mandate of the warrant of the Speaker, according to the order of the House. The warrant in this case set forth the nature of the contempt complained of as the ground for commitment. It was held by the Court that the power given by sec. 35 of the Constitution Act was well exercised by the legislature of Victoria in the enactment of 20 Vic. No. 1, sec. 3, that the Legislative Council and Legislative Assembly of Victoria have all the privileges, immunities and powers which were legally held, enjoyed, and exercised by the Commons House of Parliament at the time of the passing of the “Constitution Statute,” and that the publication outside the House, in a newspaper, of an article which the Assemby adjudged to be a libel on the Assembly, on a select committee thereof, and on a member of each, qua such member, is a contempt for which the House has authority to commit. (In re Dill, 1 W. and W. [L.] 171.)

The offending publisher was then remanded in custody. Subsequently he brought an action against Sir Francis Murphy, the Speaker, for false imprisonment. In that action it was held by the Supreme Court that the impossibility of the Legislative Council or Assembly exercising the power of impeachment did not restrict the general words of sec. 35 of the Constitution Act creating the power, or render invalid an enactment which gave other powers that might be exercised by the Council and Assembly. (Dill v. Murphy, 1 W. and W., L. 342, 356.) On appeal to the Privy Council, the decision of the Supreme Court was affirmed. The word “defined” was held equivalent to “declared,” and the power given by the Act had been properly exercised. (1864, 1 Moo. P.C. N.S. 487.)

On 11th March, 1869, the Legislative Assembly of Victoria appointed a select committee to enquire and report upon certain charges which had been made relating to the character and conduct of some of its members. Hugh Glass was examined as a witness before the committee, which afterwards reported to the House that Hugh Glass and John Quarterman had been guilty of bribing and unduly influencing certain members of the Assembly. Glass and Quarterman were then adjudged guilty of contempt and of breach of privilege. They were arrested on the Speaker's warrant, brought before the House, found guilty and committed to the custody of the keeper of the Melbourne gaol. The warrant in this case was couched in general terms, and did not recite particulars of the contempt and breach of privilege. Whilst they were in goal the Speaker issued

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another warrant against Glass, similar to the first except that it contained no reference to Quarterman. On 30th April Glass obtained a writ of habeas corpus, directed to the keeper of the gaol, who made a return to the writ, relying on the two warrants as the cause of his detaining the prisoner. The Chief Justice, Sir William F. Stawell, assisted by two other judges, heard the arguments of counsel for and against the discharge of Glass. On the 1st May prisoner was discharged on the ground that the warrant was bad, as it did not describe the contempt so as to show that it was of a kind for which the House of Commons might have committed in 1855. By direction of the House a rule nisi was obtained to set aside the order of the Chief Justice. This rule was argued before the Full Court, which decided that it had no jurisdiction to rescind the order of a judge made on the return to a writ of habeas corpus. The Speaker petitioned Her Majesty in Council for special leave to appeal against the decision of the Chief Justice, and also against that of the Full Court. On the case coming before the Privy Council for hearing, the appeal was allowed, and the orders of the court in the colony were reversed. The Privy Council held that the Assembly had, under sec. 35 of the Constitution Act and the Act 20 Vic. No. 1, the same powers and privileges as those of the House of Commons, and, among them, the power of judging for itself what is a contempt, and of committing for contempt by a warrant stating generally that a contempt has been committed. (Speaker of the Legislative Assembly v. Glass, 1871, L.R. 3 P.C. 560.)

The Legislative Assembly of Victoria, it has been held, does not possess the privilege, by passing resolutions imposing customs duties, to authorize the collection of those duties by a customs officer till the end of the session of Parliament in which such resolutions have been passed. The Supreme Court has power to determine the legality of the privilege. And the statement in the pleadings of such a privilege is a question of law and not of fact, and sec 2 of Act 20, Vic. No. 1, making the journals of the House of Commons, and consequently of the Assembly, prima facie evidence of the privilege, does not turn the privilege into a question of fact; and therefore the privilege could not be admitted by a demurrer to a plea averring such privilege. (Stevenson v. The Queen, 2 W.W. & A'B [L.] 143.)

§ 158. “Such as are Declared by the Parliament.”

This section authorizes the Federal Parliament, by an ordinary act of legislation, to declare what shall be the powers, privileges, and immunities of the Senate and its members and committees, and of the House of Representatives and its members and committees. The limitation which is contained in sec. 18 of the Canadian Constitution (amended by 38 and 39 Vic. c. 38), in sec. 35 of the Victorian Constitution, and in sec. 35 of the South Australian Constitution, viz., that the powers, privileges, and immunities so declared shall not exceed those then held and enjoyed by the Commons House of Parliament, does not appear in this section. The Federal Parliament has therefore unrestricted authority to define and declare its powers, privileges and immunities. In the exercise of that authority it could not legally arrogate to itself a new jurisdiction, not within the scope of this section. In the absence of such legislation the powers, privileges, and immunities of each House, and of the committees and members of each House, will be those of the House of Commons, as known to law at the establishment of the Commonwealth.

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Rules and orders.

50. Each House of the Parliament may make rules and orders159 with respect to—

  • (i.) The mode in which its powers, privileges, and immunities may be exercised and upheld:
  • (ii.) The order and conduct of its business and proceedings either separately or jointly with the other House.
UNITED STATES.—Each House may determine the rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member.— Const., Art. I., sec. 5, sub-s. 2.

HISTORICAL NOTE.—In the clause as adopted at the Sydney Convention of 1891, and the Adelaide session of the Convention of 1897, the matters as to which rules and orders might be made were somewhat elaborately defined in six sub-clauses, the last of which was: “Generally for the conduct of all business and proceedings of the Senate and House of Representatives severally and collectively.” There was no sub-clause dealing with the exercise of powers, privileges, and immunities. At the Adelaide session, Sir Joseph Abbott called attention to the need of some power to protect the privileges of the Houses, and suggested that the power to make standing orders was too narrow. He moved to omit all the sub-sections, and insert words empowering each House to make such standing orders as it should think fit, and giving to such orders the force of law. This was objected to as being too wide, and Sir Joseph Abbott withdrew it. (Conv. Deb., Adel., pp 756–60.) At the Sydney session, on Mr. Isaacs' motion, the word “standing,” before “rules and orders,” was omitted. (Conv. Deb., Syd., 1897, p. 1035.) At the Melbourne session, before the first report, a new sub-clause was inserted: “The mode in which the powers, privileges, and immunities of the Senate and of the House of Representatives respectively may be exercised and upheld.” After the fourth report the five specific sub-clauses were omitted, and verbal amendments were made.

§ 159. “Rules and Orders.”

It will be observed that this section recognizes the important distinction between “powers, privileges, and immunities,” and the “rules and orders” by which such powers, &c., are enforced.

Sub-sec. i. enables each House of the Federal Parliament to makes rules and orders, defining the mode or manner in which its powers, privileges, and immunities may be exercised and upheld. It does not authorize the declaration of any power, privilege, or immunity, but merely the procedure requisite for the maintenance and enforcement of the same. Thus, rules could be made prescribing the formalities to be observed in summoning persons to appear at the bar of the House, or to give evidence before its committees; the preparation, form, and execution of warrants for the arrest of persons guilty of contempt, and breach of privilege, and the form of warrants of commitment.

Sub-sec. ii. enables each House to make rules and orders regulating the conduct of its business and proceedings, either when acting separately, or when acting jointly with the other House. Rules and orders may, according to the practice of the Imperial Parliament, be classified as follows: (1) standing rules and orders, (2) sessional rules and orders, (3) orders and resolutions undetermined in regard to duration.

STANDING ORDERS.—These are permanent rules for the guidance and government of the House, which endure from Parliament to Parliament until vacated or repealed. They relate to such matters as the days on which the sittings of the House are held, the

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hour for commencement of business, the sequence of business on each day, the distribution of business, the preservation of order, the closure of debate, the taking of divisions on question put, the progressive stages of bills, procedure in money bills, examination of public accounts, standing committees on particular subjects, form and reception of petitions, seats in the House, witnesses before the House and its committees, admission and withdrawal of strangers, and orders relating to the introduction and conduct of private bills. In the House of Lords a standing order cannot be suspended except in pursuance of notice of motion. In the Commons the rule is not so stringent, and in cases of emergency a standing order may be suspended without notice, but the unanimous concurrence of the House is generally necessary. (May, 10th ed. p. 145.)

SESSIONAL ORDERS.—These are orders or resolutions which are intended and expressed to last for a session only and which expire at the end of the session.

ORDERS OF UNDEFINED DURATION.—“By the custom of Parliament any order or resolution of either House the duration of which is undetermined, would expire with prorogation; but many of them are, as part of the settled practice of Parliament, observed in succeeding sessions, and by different Parliaments, without any formal renewal or repetition. For examples of resolutions being observed as permanent, without being made standing orders, may be cited the formal reading of a bill at the opening of a session; several resolutions regarding procedure on petitions; the resolution prohibiting members from engaging in the management of private bills; the time for presenting estimates; the rules of the committee of supply; and the means of securing a seat in the house by a member on a select committee.” (May's Parl. Prac. 10th ed. p. 145.)