― 92 ―

6. Chapter VI. The Parliament.

BY section 1 of the Constitution, “The Parliament of the Commonwealth” consists of “The Queen, a Senate, and a House of Representatives.”

A. The Crown and the Governor-General.

One of the few legal characteristics of self-governing colonies is that the legislation generally proceeds in the name of the Crown, while in colonies in a less advanced state enactments are in the name of the Governor. The inclusion of the Crown in “The Parliament” follows the British North America Act, 1867, sec. 17, and follows the legal theory as to the composition of the Imperial Parliament.noteIn the Commonwealth it is specifically provided by section 2 of the Constitution that a Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, who has, and “may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.” The office of Governor-General has been created by Letters Patent, and the Governor-General has been appointed by Commission under the Royal Sign Manual and Signet.note

Sections 3 and 4 of the Constitution relate generally to the office of Governor-General, and have no special reference to the Parliament or to legislative power. Section 3 provides

  ― 93 ―
for a salary of £10,000 per annum, which may be altered by the Parliament, but so that the salary of the Governor-General then in office is not affected. Section 4 deals with the construction of powers in the Constitution conferred upon the Governor-General, and provides that they may be exercised by the Governor-General for the time being or by the administrator of the Government. Section vii. of the Letters Patent follows upon this. Another general provision affecting the office—the power of the Crown to authorize the Governor-General to appoint a deputy or deputies to act in any part of the Commonwealth—is contained in section 126; the power is exercised in the Letters Patent, section vi., which repeat the proviso that the appointment of such a deputy or deputies shall not affect the exercise by the Governor-General himself of any power or function.

As sections 3 and 4 relate generally to the office of Governor-General, it has been inferred that section 2 is equally general; and that the provision that the Governor-General “shall have and may exercise” “such powers and functions of the Queen as Her Majesty may be pleased to assign to him,” shuts out the contention of which something has been heard in Australia and in Canada, that the Governor of a self-governing colony has virtute officii, and without special grant, all the executive powers of the Crown exerciseable in relation to the internal government of the colony. The matter is referred to under the head of “Executive Power.” It may be noticed that the Constitution takes a new departure in speaking of the Governor-General “as Her Majesty's representative” (sections 2, 61, 68). It is true that this term is used colloquially to describe a Governor, and has been occasionally used in judgments. It is believed that it has never before been used in any Statute, Letters Patent, or Commission of a Colonial Governor; and, on the other hand, the expression “the representative of the Queen in the government of the colony” has more than once been used by the Judicial Committee to describe a Viceroy, and to distinguish him

  ― 94 ―
from a Governor, who is an officer merely with a limited authority from the Crown.note

The powers and duties of the Governor-General in relation to the Parliament and to legislation spring partly from the Royal grant, and partly from the provisions of the Constitution. Some of them, though of statutory origin, correspond with actual prerogatives of the Crown, or are in close analogy thereto; others are rather in the nature of ministerial Acts, lodged in the Governor-General as the only permanent officer of the Commonwealth. The following are the principal powers and duties related to the prerogative:

1. He summons, prorogues, and dissolves the Parliament.

These are prerogative powers, and in accordance with constitutional custom they are conferred upon the Governor-General by the Letter Patent (section v.). They are also, however, expressly granted by the Constitution itself (section 5), and the powers of dissolving and summoning the Parliament are the subject of important provisions. After any general election the Parliament shall be summoned to meet not later than thirty days after the day appointed for the return of the writs (section 5), and there is to be a session of the Parliament once at least in every year, “so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session” (section 6). The first Parliament of the Commonwealth was to be summoned to meet not later than six months after the establishment of the Commonwealth.note As to the dissolution of the Parliament, that extends in the ordinary case only to the House of Representatives (section 5); but in the special case of a “deadlock,” both Houses may be dissolved (section 57).

2. He recommends to the House in which the proposal

  ― 95 ―
originates, votes, resolutions, or proposed laws for the appropriation of revenue or monies (section 56).

3. He assents to legislation (sections 58, 128) in the Queen's name.

In the exercise of these powers the Governor-General will generally, but not necessarily nor always, act on the advice of his Ministers. As to the summoning of the Parliament, he is in this as in other matters the guardian of the law, and should see that it meets at the proper times. As to the power of dissolution, that has always been the most difficult and delicate of a Governor's powers in a self-governing colony; and is the one matter in which governors always exercise a personal discretion which not infrequently leads them to refuse a dissolution. The principle which has been acted upon is that with the short Parliaments in the colonies, a dissolution should, save in special circumstances, be resorted to only when it is clear that in no other way can government be carried on.note

The provisions of section 58 relating to the Royal Assent to Bills are taken from the British North America Act, 1867, section 55, with an important difference. The Governor-General is to exercise his powers of assenting, withholding the Royal Assent, or reserving “according to his discretion, but subject to this Constitution.” “According to his discretion” raises the consideration of two matters by which the discretion of the Governor-General may be guided—the Royal Instructions and the advice of his Ministers. As to the Royal Instructions, it has been doubted whether a law assented to by a Governor would not in all cases be valid, notwithstanding that such assent was given contrary to the terms of the Instructions. The Constitution Acts of the Australian Colonies, however, made the observance of the Instructions a condition of validity,note though as the Instructions themselves gave the Governor a discretionary power to assent to any Bill in case he should be of

  ― 96 ―
opinion that an urgent necessity existed for bringing it into operation, the result was that the non-reservation of a Bill prescribed for reservation by the Royal Instructions only, would not impair its validity. The British North America Act, section 55, provides that when a Bill is presented to the Governor-General for the Royal Assent, he shall declare “according to his discretion, but subject to the provisions of this Act, and to Her Majesty's Instructions, either that he assents,” etc. The words “and to Her Majesty's Instructions” are omitted in the Commonwealth Constitution, and there is no provision on the subject similar to that in the Constitution Acts of the Australian Colonies.note Section 58, however, provides that the Governor-General shall declare his assent, etc., according to his discretion, “but subject to this Constitution”; section 2, as has been seen, limits the powers of the Governor-General to such “powers and functions of the Queen as Her Majesty may be pleased to assign to him”; and it would seem to follow that if the Crown forbids the Governor-General to assent to a particular measure, his assent will be invalid. A difficulty arises from the fact that the limitation of power in section 2, like the grant of power in section 58, is expressed to be “subject to this Constitution.” Another question arises as to the application of the Colonial Laws Validity Act, 1865, section 5:—“No colonial law, passed with the concurrence of or assented to by the Governor of any Colony, or to be hereafter passed or assented to, shall be or be deemed to have been void or inoperative by reason only of any instructions with reference to such law or the subject thereof by any instrument other than the Letters Patent, or instrument authorizing such Governor to concur in passing or to assent to laws for the peace, order, and good government of such colony, even though such instructions may be referred to in such letters patent or last mentioned instrument.” The question is, for the present, without practical importance, for the Governor-General's instructions contain no restrictions on the subject.

In assenting to or withholding assent from Bills, the

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Governor-General must first regard his duty as an Imperial Officer. He must consult his instructions, and see whether the measure is one which he ought to reserve. He must then satisfy himself that the subject is one over which the Commonwealth Parliament has power, and that the proposed law does not conflict with any Imperial law in operation in the Commonwealth. For this purpose, he will probably receive a report from his Law Officers; and if the matter is of more than local importance, he may seek the advice of the Imperial Law Officers. With these limitations, it would seem that he ought to act upon the advice of his Ministers.note In any case where the Governor-General assents to a Bill, the Crown may disallow the Act within one year, and the law will then be annulled from the day when the disallowance is made known (sec. 59).

There is one matter in which the Constitution itself requires that proposed laws shall be reserved. Section 74, which gives power to the Parliament to make laws limiting the matters in which leave to appeal to the Crown in Council may be asked, directs that every such proposed law shall be reserved by the Governor-General for the pleasure of the Crown.

The minor powers of the Governor-General in relation to the Parliament will be considered with the matters to which they relate.

B. The Senate.

The principal character of the Senate may be gathered from the alternative names which were suggested for it— the House of the States, the States Assembly. Though it differs in many important respects from the Senate in the United States and in the Dominion of Canada, it stands like them for the federal principle in the Constitution.

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Every Original State has equal representation in the Senate (sec. 7), a condition which was vigorously assailed in the larger States. This equality can be varied only by an amendment of the Constitution, and then only with the consent of the electors of the State or States whose “proportionate representation” it is proposed to diminish (Section 128). In the first instance, each State has six members; but the Parliament may increase the number. There is no power to diminish the number, because it is part of the plan of the Constitution to set up a numerical proportion between the Houses, and an alteration of numbers might affect the balance of power.

As the Senate is to represent the States, it is fitly provided that each State shall constitute one electorate; though this is a provision which the Parliament may alter, and the Constitution itself makes special provision for Queensland (sec. 7). These provisions may also be regarded as a check upon localism in Commonwealth politics; it is a common complaint of popular assemblies that “they represent the nation too little and particular districts too much.” Large constituencies are in the colonies a feature of the Second Chamber, where that Chamber is elective. It is not impossible that, from the mode of its constitution, the Senate may be more “national” than the national Chamber itself.

Though federal in constitution, the Senate is, unlike the German Bundesrath, unitary in action. It may proceed to the despatch of business, notwithstanding the failure of any State to provide for its representation in the Senate (sec. 11). Until the Parliament otherwise provides, one third of the whole number of the Senators makes a quorum (sec. 22) without regard to the manner in which that quorum is composed. Questions arising in the Senate are determined by a majority of votes, and the voting is personal and not according to States (sec. 23).

A condition which the Senate shares with Second Chambers and Upper Houses in general is “perpetual existence.” Except in the event of deadlocks (sec. 57),

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it is not liable to dissolution. Its members retire by rotation after six years' service (sec. 7), the length of service of a Senator being double the term of the House of Representatives. The rotation of Senators is to be determined by the body itself as soon as practicable after its first meeting, and after every dissolution (sec. 13), so that half the Senators of each State in the first Senate and every new Senate will retire at the end of three years' service (sec. 13). Whenever the number of Senators for a State is increased or diminished, the Parliament may make such provision for the vacating of the places of Senators for the State as it deems necessary to maintain regularity in rotation (sec. 14).

The Senate is popular in the mode of its Constitution. The Bill of 1891 followed the United States Constitution in providing that Senators should be directly chosen by the Houses of the Parliament of the several States. There was nothing as to which there was more agreement than that this system should give way to one which secured immediate responsibility to the people. Senators are to be directly chosen by the people of the States (sec. 7), and the qualification of Senators and electors is not left to the States to determine, but is uniform with that of members and electors for the House of Representatives, “but in the choosing of Senators each elector shall vote only once” (sections 16, 8). Only in the case of casual vacancies is the scheme of 1891 resorted to (sec. 15). The provision for filling casual vacancies is curiously complex and minute. The person chosen holds the seat until the expiration of the term of the person whose seat he fills, or until the election of a successor, whichever first happens. If the State Parliament is not in session when the vacancy is notified (by the President, or, if there is no President, by the Governor-General, to the Governor of the State— sec. 21), the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place until 14 days after the beginning of the next session of the State Parliament, or “until the election

  ― 100 ―
of a successor, whichever first happens.” The last-mentioned condition of tenure is explained by a provision that “at the next general election of members of the House of Representatives, or at the next election of Senators for the State, whichever first happens, a successor shall, if the term has not then expired, be chosen to hold the place until the expiration of the term” (sec. 15).

The Parliament may provide a uniform method of electing Senators throughtout the Commonwealth. Subject to any such law, the State Parliaments may make laws prescribing the method of choosing Senators (sec. 9).

The State Parliaments may make laws for determining the times and places of elections of State Senators (sec. 9). The Commonwealth Parliament may make laws regulating the conduct of the Senate elections, but in default of such provisions the State laws, for the “more numerous House of the Parliament of the State,” shall, subject to the Constitution, apply to Senate elections as nearly as practicable (sec. 10).

The Governor of a State may cause writs to be issued for the election of the State Senators; in case of the dissolution of the Senate, the writs shall be issued within ten days of the proclamation of the dissolution (sec. 12).

The Senate, before proceeding to the despatch of business, and thereafter as occasion arises, is to choose a Senator to be President (sec. 17). In the business of the Senate, as in the House of Lords, the President has a single ordinary vote, and no casting vote; and in the Senate, as in the Lords, when the votes are equal, the question passes in the negative (sec. 23). The President ceases to hold office (a) if he ceases to be a Senator, (b) by a vote of the Senate removing him, or (c) by resignation of his office or seat by writing addressed to the Governor-General (sec. 17).

A Senator may resign his seat (sec. 19), and if he be absent from the Senate without leave for two consecutive months of any session of the Parliament his seat becomes

  ― 101 ―
vacant (sec. 20). His seat may also become vacant under sections 44 and 45.

C. The House of Representatives.

The Constitution contains throughout elements which suggest unity, and elements which suggest union merely. Writers on the Constitution of the United States, which presents the same phenomena, speak of these respectively as the national and federal elements in the Constitution. Using the terms in this sense, we have seen that the Senate is the Federal Chamber; and we now come to the House of Representatives, which is regarded as the National Chamber. As the name “Commonwealth” has been objected to on account of its Republican associations, so the title “House of Representatives” has been criticised as too American. It is not, however, altogether new in Australian Constitutions. Earl Grey's Act of 1850, giving Constitutions to all the Australian Colonies, empowered them to substitute for their single-chambered legislature “a Council and House of Representatives.” None of them adopted the name House of Representatives; but in New Zealand the General Assembly does consist of a Council and House of Representatives. There were sufficiently good reasons for not following the Dominion of Canada in establishing a “House of Commons”; you cannot translate the thing or its traditions, and without these the name in Canada or Australia is meaningless or misleading. If we look to history, we see that it is the Senate rather than the House of Representatives which recalls the communitas communitatum—the assembly of the organized political communities. It is indeed a signal merit that in the Senate the constituency is such an organized body, and not a mere electoral district formed ad hoc. If we look to practical politics we shall hardly find that the Lower House can successfully maintain the same supremacy which the House of Commons claims in England and Canada.

The national character of the House, the federal character

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of the Senate, are intended to be emphasized by the different terms used in respect to their constitution. The Senators are directly chosen by the people of the States (sec. 7); the House is composed of members “directly chosen by the people of the Commonwealth” (sec. 24). But even in the case of the House the State is for many incidental purposes an electoral unit.

The number of members of the House is regulated by provisions which have reference to two matters—the distribution of seats, and the relation of the House to the Senate.

By Section 24 the number of members chosen in the several States is in proportion to the respective numbers of their people; and until the Parliament otherwise provides, is determined whenever necessary as follows:

1. A quota is ascertained by dividing the number of the people of the Commonwealth as shown by the latest statistics of the Commonwealth, by twice the number of the senators.

2. The number of members to be chosen is determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one half of the quota, one more member shall be chosen in the State. But five members at least shall be chosen from each Original State. By a provision suggested by the Fourteenth Amendment (sec. 2) to the United States Constitution, if the law of a State excludes the people of any race from the franchise, such race is not to be reckoned in computing the population of the State (sec. 25).

The distribution of seats among the States is thus subject to change. The total number of seats in the House, however, bears a fixed relation to the number in the Senate—the number of members is as nearly as practicable twice the number of the Senators (sec. 24). This provision has more than one reason. In the first place it was inserted with a view to measuring the strength of the House on a joint sitting should that ever be necessary;

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and in the end the scheme for avoiding deadlocks does involve such a joint sitting. In the second place it serves to maintain the tradition of the Lower House as “the more numerous House,” and at the same time it maintains the relative proportions of the Houses which without it might be upset by the increase of members of the House of Representatives which may become advisable by the increase of population. It will be remembered that the Parliament may increase or diminish the number of senators, but cannot diminish the representation of Original States below the present number—six (sec. 7).

The representation to which each State was entitled in 1900 was ascertained during the passage of the Bill through the Imperial Parliament, and section 26 provides for the number of members to be returned from each State at the first election as follows:

New South Wales, . . . . . .  26 
Victoria, . . . . . . . .  23 
Queensland, . . . . . . . 
South Australia, . . . . . . 
Western Australia, . . . . . . 
Tasmania, . . . . . . . . 

“Subject to this Constitution,” the Parliament may make laws for increasing or diminishing the numbers of the members of the House (sec. 27)—i.e. so that it does not alter the proportion of members to Senators, and does not bring the number of members returned from an original State below five. By section 128 no alteration of the Constitution altering the proportionate representation or the minimum number of representatives of a State in the House shall become law unless the majority of the electors voting in that State approve the proposed law.

In respect to the constitution of electoral divisions there are three possibilities. The Commonwealth Parliament may provide; in default of any provision, the State Parliament “may make laws for determining the divisions in each State for which members may be chosen, and the number of members to be chosen for each division,” but a division is

  ― 104 ―
not to be formednote out of parts of different states. In the absence of provision by Commonwealth or State each state is to be one electorate (sec. 29). Under the powers of this section and sec. iv. of the Act, four of the States passed laws dealing with this subject; but at the first general election South Australia and Tasmania voted as single electorates.note

Any provision corresponding with that referring to the Senate under which the House may proceed to business, notwithstanding the failure of a State to provide for its representation, is of course unnecessary in relation to a national chamber; and it has been thought unnecessary to provide directly for the failure of electoral divisions to return members. By sec. 39, until the Parliament otherwise provides, the presence of one-third of the whole number of the members of the House is necessary to constitute a meeting of the House for the exercise of its powers. In respect to its duration, the House is assimilated to the popular House in all British colonies. It is liable to dissolution by the head of the Government—the Governor-General—and if not dissolved it expires three years after its first meetingnote (sec. 28). (Three years is the term assigned to the Lower House in all the Australian Colonies, except Western Australia, where it is four years.) The House has thus no permanent existence, and it is made of course more sensitive to public opinion than the Senate by the fact that a general election sends all the members to their constituents at the same time.

The Governor-General may cause writs to be issued for general elections, and after the first general election writs shall be issued within ten days from the expiry of the House, or the proclamation of a dissolution (sec. 32). Casual

  ― 105 ―
vacancies are filled by election on the writ of the Speaker, or, in his absence, of the Governor-General (sec. 33). Until the Parliament otherwise provides, but subject to the Constitution, the laws in force in the States respectively regulating the conduct of State elections for the “more numerous House” are to govern the conduct of elections for the House of Representatives (sec. 31). A member may resign his seat (sec. 37); and his seat becomes vacant if for two consecutive months of any session, without leave, he fails to attend the House (sec. 38).

The House, before proceeding to the despatch of business and as often as occasion arises, must choose a member to be Speaker. The Speaker ceases to hold his office (a) if he ceases to be a member, or (b) if he be removed by a vote of the House, or (c) if he resign his office or his seat (sec. 35).

Questions arising in the House of Representatives are determined by a majority of votes, and the Speaker has no ordinary vote, but has a casting vote where the numbers are equal (sec. 40).

Qualifications of Electors and Members of the Senate and House of Representatives

The Constitution assimilates these qualifications (sections 8, 16). Some of the qualifications are dealt with in the Constitution under the head of “the House of Representatives,” others under “Both Houses of the Parliament.”

In regard to the qualification of electors and members alike, it is a striking feature of the Constitution that it gives power to the Commonwealth over each; and this power was accorded in recognition of the fact that it was impossible to regard such matters as purely of state concern. The qualifications of electors and members therefore may be prescribed by the Parliament; and the provisions of sections 30 and 34 are only until provision is made by the Parliament. The power of the Parliament is, however, limited by conditions, of which the first is that the qualification for members and electors is the same for the Senate as the

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House; while as to electors, the provisions of sections 8, 30, and 41 are designed to secure the “democratic” principle that the suffrage shall be of the widest, and that no person shall have more than one vote.


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

Section 8. The qualification of electors of senators shall be in each State that which is prescribed by this Constitution or by the Parliament as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once.

On these sections the following observations may be made:

1. In sec. 30, the words, “until the Parliament otherwise provides,” carry under sec. 51, art. xxxvi., the power to provide from time to time.

2. The reference to the more numerous House of Parliament of the State is taken from the United States Constitution, where the federal franchise is regulated by the provision that “the electors in each State shall have the qualification requisite for electors of the most numerous branch of the State Legislature.” In those States of the Commonwealth in which both Houses are elective, the law of the State has fixed the number of representatives in each House, and has always provided that the Lower House shall contain a number of members which is substantially larger than that in the Upper House. In New South Wales and Queensland the Upper House is nominated, not elected, and the number of members is by law unlimited. The present electoral qualifications in the States vary considerably. In

  ― 107 ―
all the States electors must be British subjects, 21 years of age or over, and there are certain conditions of residence.

New South Wales (Parliamentary Electorates and Elections Act, 1893).—Manhood suffrage, the elector voting in the division of the electoral district in which he resides.

Victoria (Constitution Act Amendment Act, 1890 and 1899).—Manhood suffrage, the elector voting in the district in which he resides; all persons on the ratepayers' roll; freehold property of the value of £50 or of the annual value of £5. Since 1899, though a person may be on the roll in various electoral districts, in virtue of his various qualifications, and entitled, therefore, to vote in any one of them, he may not vote more than once.

Queensland (The Elections Acts, 1885 to 1897—a consolidation).—Manhood suffrage, the elector voting where he resides. Leasehold occupation, or freehold or leasehold estate, or pastoral licence of specified value. An elector may vote in any number of electoral districts in which he may have a qualification, but not more than once in any particular district.

South Australia (Electoral Code, 1896).—Adult suffrage, the elector voting where he resides.

Western Australia (Constitution Acts Amendment Acts, 1899 and 1900).—Adult suffrage; freehold, leasehold, household, or Crown lease or licence of certain value, exerciseable as in Queensland.

Tasmania (Constitution Amendment Act, 1896, No. 2; Electoral Act, 1896, and Electoral Continuation and Amendment Act, 1899).—Men in receipt of income of £40 a-year have a vote in the district in which they reside; ratepaying qualifications exerciseable wherever the qualification exists.

3. The provision that in the choosing of members each elector shall vote only once, seems clearly to run throughout the Commonwealth and to prohibit an elector from voting more than once, whether in the same State or in different State.

4. There is room for some doubt whether the provisions

  ― 108 ―
of sec. 30 against plural voting applies to the suffrage under a law of the Commonwealth Parliament as well as to a State law. It is not clear whether the controlling words are “Until the Parliament otherwise provides” or “but in the choosing of members each elector shall vote only once.” It is submitted that the latter words govern the power of the Parliament. The similar prohibition in sec. 8 regarding the Senate clearly binds the Parliament, and by the section the Constitution has prescribed uniformity in the qualifications of electors for the two Houses.

5. In speaking of the qualification “which is prescribed by the law of the State,” does the Constitution mean the qualification as prescribed from time to time? The provision of the United States Constitution certainly does mean that; but in the United States the federal suffrage is treated as a matter for State regulation, and Congress has no power over it, save under the Amendments, to prevent abuses by the State. In the Commonwealth the suffrage is treated as a national matter, and in the absence of any words of futurity (such, for instance, as are contained in section 31, the “laws in force in each State for the time being”), it is reasonable to suppose that the qualification referred to is that existing at the establishment of the Commonwealth.

If this view be correct, section 41, which imposes an important limitation upon the power of the Parliament, is shorn of some of its difficulties. Section 41 provides that “No adult person who has or acquires 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.” As has been seen, two of the States— South Australia and Western Australia—have adopted adult suffrage, in which they followed the lead of New Zealand, also a possible State. “Women's suffrage,” too, was being strongly pressed upon the Legislatures of New South Wales and Victoria. Accordingly, a concession was

  ― 109 ―
made to the States, which should, in its political operation, facilitate the adoption in regard to each State of its own policy. For it is clear that the preservation of rights in States where they have been acquired will more readily reconcile those States to a Commonwealth law which accords with the policy of those States which have not adopted women's suffrage.

If the true construction of section 30 be the “law in force in each State at the establishment of the Commonwealth,” then under section 41 any person who at that time has, or who at any time afterwards acquires a right under that law to vote for the more numerous House of the State Parliament, may vote in federal elections, whatever law be established by the Commonwealth Parliament. If, on the other hand, section 30 means laws enacted by the State Parliament at any time before the establishment of a federal franchise by the Commonwealth Parliament, section 41 presents some difficulties of construction.note It would probably mean has at the establishment of the federal franchise or acquires at any time afterwards under a State law in force at the establishment of the federal franchise.

  ― 110 ―

Qualifications of Members.

By section 16, the qualifications for a Senator are the same as those of a member of the House, and by section 34 it is enacted that the Parliament may deal with the qualifications of a member of the House, but until the Parliament has provided otherwise:

i. He must be (a) of the full age of 21 years, and must be (b) an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector, and (c) must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he is chosen.

ii. He must be a subject of the Queen, either natural born or for at least five years naturalized under a law of the United Kingdom or of a colony which has become, or becomes, a State, or of the Commonwealth or a State.note

  ― 111 ―

Disqualifications for Membership.

Section 43. A member of either House of the Parliament is incapable of being chosen or of sitting as a member of the other House.

Section 44. Any person who

i. Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen, or is entitled to the rights or privileges of a subject or a citizen of a foreign Power;note or

ii. Is attainted of treason or has been convicted and is under sentence or subject to be sentenced for any offence

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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 Crown, or any pension 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 agreement 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 Member of the House of Representatives.

These disqualifications require little explanation. Subsection iv. is dealt with in the section itself by a provision that it does not apply to the office of (a) any of the Queen's Ministers of State for the Commonwealth; or (b) any of the Queen's Ministers for a State; or (c) to the receipt of pay, half-pay, or a pension as an officer or member of the Queen's navy or army; or (d) to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth. Sub-section iv. does, however, apply generally to offices of profit in the States other than the excepted offices, and is not confined to offices of profit held of the Crown in right of Commonwealth or State.

A member of either House vacates his seat if he becomes subject to any of the disabilities mentioned in section 44, or if he takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors; or “directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth,” or for services rendered in the Parliament to any person or State (sec. 45).

Until the Parliament otherwise provides, any person declared by the Constitution to be incapable of sitting as a member of either House is liable, for every day on which he so sits, to pay £100 to any person who sues for it in

  ― 113 ―
a court of competent jurisdiction. It is noteworthy that the Constitution does not disqualify members of the State Parliaments from being members of the Commonwealth Parliament. The State Parliaments, however, have already passed Acts which disqualify members of the Commonwealth Parliament from sitting in the State Parliament. In so doing they have followed the examples of the States in America, and have acted on the principle that a seat in Parliament is a seat to which the familiar doctrine “one man, one billet” applies.

Both Houses of the Parliament.

Several of the provisions under this head have been already considered.

By section 42 every member must complete his title by making and subscribing an oath or affirmation of allegiance in the form set out in the schedule to the Constitution.

By section 47 any question respecting the qualifications of members, or respecting a vacancy in either House, and any question of a disputed election, is determined by the House in which the question arises. The Parliament may, however, provide otherwise. By section 48 the members of each House receive an allowance of £400 a year, to be reckoned from the day on which they take their seats. In all the States members of the Lower House are paid a salary,note “allowances,” or “re-imbursement of expenses” varying from £100 to £300 per annum with railway passes and other privileges. Only in South Australia, Tasmania, and Western Australia are members of the Legislative Council paid a salary, but they have in all the States the same privileges of travelling as members of the Lower House. The payment of members of the Commonwealth Parliament is under no constitutional guarantee: the Parliament may abolish it or alter the amount.

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Privilege of the Parliament.

It has long been settled that the lex et consuetudo Parliamenti does not apply to Colonial Legislatures.note While the Chambers of such a Legislature have “every power reasonably necessary for the proper exercise of their functions and duties, powers such as are necessary to the existence of such a body and the proper exercise of the functions which it is intended to execute,” this does not extend to nor justify punitive action. Accordingly, the Constitution Acts of most of the colonies have authorised the Legislature or the Houses respectively to supply this defect in their power.note The Legislature of Victoria having adopted for each House and for the Committees and members thereof the powers, privileges, and immunities of the House of Commons, it was held by the Privy Council that the doctrine of the English privilege cases applied, and that where a person was committed by order of the Legislative Assembly for contempt, there was no power in the Courts to examine the cause of contempt.note

The Constitution proceeds at once to oust the common law doctrine from application to the Parliament. “The powers, privileges, and immunities of the Senate and the House of Representatives and of the members and committees of each House shall be such as are declared by the Parliament, 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” (sec. 49).note The Parliament has thus plenary

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power over the subject, untrammelled by the condition that privileges shall not exceed those of the House of Commons at the date of the Constitution Acts respectively, as in the case of the other Australian Acts, or at the date of the Act conferring the privileges, as in Canada.


Under section 50, each House separately, or the two Houses in conjunction, may make rules and orders for the conduct of its or their business and proceedings. The same section contains a provision that each House may make rules and orders with respect to “the mode in which its powers, privileges, and immunities may be exercised and upheld.” These are somewhat startling terms, and on the face of them would justify the House in establishing appropriate penalties for breach of privilege. The term “powers, privileges, and immunities,” however, includes the sanctions which are available to each House, and therefore it is conjectured that “mode” relates exclusively to what may be called procedure—the “machinery as distinguished from the product.”

The procedure in legislation is to some extent regulated by the Constitution itself. The provisions affecting the Royal Assent (sections 58–60) have been already referred to. The proceedings in regard to Money Bills, so far as they concern the relations of the Senate and the House, are considered in the next chapter. The provision requiring the recommendation of money votes by the Governor-General may be here referred to. It is an essential part of our Parliamentary system that every grant of money for the public service shall be based upon the request or recommendation of the Crown. “The foundation for all Parliamentary taxation is its necessity for the public service as declared by the Crown through its Constitutional advisers.”note This principle fixes upon the Ministry a definite responsibility for the national finance, which acts as a safeguard against Parliamentary recklessness. The absence of such a rule in

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the colonies was regarded by Lord Durham as one of the principal factors in the ill-government of Canada; competent observers to-day notice the financial chaos in France and Italy as a consequence of the neglect of this rule. Ever since the introduction of responsible government into the colonies, the rule has in one form or other found a place in colonial constitutions. Consistently, therefore, it is provided in the Constitution that “a vote, resolution, or proposed law for the appropriation of revenues or monies shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor-General to the House in which the proposal originated” (section 56). This provision must, like so much else that belongs to our system of Parliamentary government, be supplemented by conventional rules such as exist in the House of Commons as to the origination of laws imposing taxation, and the prohibition of the increase of the amount asked for by the Crown.