The Prime Minister

The Prime Minister asks to be advised upon the points raised by the Attorney-General of South Australia (Mr J. H. Gordon, K.C.) in a memorandum mentioned in the telegraphic news of the Melbourne Age of 19 November 1902.

As no official copy of the memorandum has been received, I have been obliged to refer to the Adelaide Advertiser of 19 November, which publishes what I assume to be a correct copy of the memorandum as follows:

I beg to call attention to the fact that, in my opinion, the Commonwealth Parliament has, in the Commonwealth Electoral Act 1902, usurped powers which the Constitution vests in the State Parliament. The Constitution (section 9) provides as follows:

'The Parliament of a State may make laws for determining the times and places of elections of senators for the State.' In commenting upon this part of the Constitution Quick & Garran say:

'This sub-section further strengthens the control of the States over the election of senators. The Parliament of a State may, by legislation, determine the times when, upon the occasions arising under the Constitution, elections of senators for the State shall take place; it may also determine the places at which polling booths for the reception of votes for the election of senators shall be held. These powers are permanently and exclusively vested in the States.'

The Commonwealth Electoral Act, section 88, fixes a maximum and minimum limit of time from the day of nomination within which the polling for the election of both senators and members of the House of Representatives shall be held. So far as relates to election of senators, the provision is, in my opinion, ultra vires. Further the important power vested in the State to fix the places of elections of senators is usurped by the general scheme of the Commonwealth Electoral Act, which confers upon the Governor-General the right to appoint polling places (section 24) and to abolish polling places (section 26). It may perhaps be argued that it is convenient that the Federal Parliament should exercise these powers. So much may be conceded, having regard only to the convenience of the Federal authorities. But there is much else to be considered.

The part of the Constitution which gives the States equal representation in the Senate and control over the election of senators was only established after strenuous contention, and it forms the bulwark for State rights. To abandon any of the powers which the Constitution confers upon the States in this direction simply upon the plea of convenience, would, in my opinion be a fatal mistake. The danger of doing so is more than theoretical. Once concede, for instance (as submission to the Act in question would concede), that the Federal Parliament has power to fix a time limit from the day of nomination within which the polling must take place, and the State will concede to the Federal Parliament the power practically to disfranchise electors living in distant places by fixing a time limit so short as to prevent these electors from recording their votes.

I regard as still more dangerous the power which the Act seeks to confer upon the Governor-General to appoint and abolish polling places. It would be a very serious disadvantage if the State surrendered its right to fix polling places for elections for senators. The State Parliament is the best as it is the constitutional judge of what is required in this respect to secure proper representation in the Senate, which is the States House. If, as the eminent authorities above quoted hold, the power to fix times and
places for the election of senators is exclusive, then it cannot be legally exercised by the Federal Parliament under any circumstances, and an election held under a usurpation of the power might be held to be illegal. The State would in such a case be without representation in the Senate. Many serious unforeseen difficulties and dangers may arise if the State is deprived of these safeguards which the Constitution gives it.

The failure of the State Parliament to make the laws for the purposes mentioned may, perhaps, be cured by action by the Governor. Quick & Garran also refer to this point as follows:

'Under a similar section in the American Constitution it has been held that when the legislature of a State has failed to "prescribe the times, places and manner" of holding elections, the Governor may, in case of a vacancy, designate in his writ of election the time and place, when and where such election will be held; but that a reasonable time should be allowed for the promulgation of the notice. (Hoge's Case, CI. and Hall [U.S.], 135; cited Baker Annot. Const. 6.)'

This proposition is debatable. It is not, however, debatable that if the power is exclusively vested in the State Parliament, the Federal Parliament cannot exercise it. The penalty which the State will suffer if it fails to exercise this power is, I think, contained in section 11 of the Constitution, which states: 'The Senate may proceed to the despatch of business, notwithstanding the failure of any State to provide for its representation in the Senate'. It will be observed that section 11 contains no hint that failure by the State to provide for its representation may be cured by Federal action.

After careful consideration of the question, I respectfully advise that the provisions of the Commonwealth Electoral Act 1902, to which I have referred, should be disregarded as being ultra vires, and that early in the ensuing session of the State Parliament a Bill should be introduced for an Act to fix the times and places for holding elections for senators of the State of South Australia.

In my opinion the provisions of the Commonwealth Electoral Act 1902 fully recognize the power of the Parliament of every State to make laws 'for determining the times and places of elections of senators for the State', and do not in any way infringe upon the State rights conferred by the Constitution.

The sections of the Constitution which chiefly affect the questions raised are:

9. The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State.

The Parliament of a State may make laws for determining the times and places of elections of senators for the State.

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

31. Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives. Reference may also be made to section 11 (failure of State to provide for its representation in the Senate); section 12 (issue of writs for Senate elections); and section 51 (xxxvi) ('until the Parliament otherwise provides').

Under these sections, the legislative powers of the Commonwealth and the States respectively with regard to Senate elections are as follows:

1. The Commonwealth Parliament has power to make laws-
1. prescribing a uniform method of choosing senators (section 9);
2. relating to elections of senators (sections 10, 51 (xxxvi)).
2. The State Parliament has power to make laws for determining the times and places of elections of senators for the State (section 9).

Section 9 has no counterpart in the provisions relating to the House of Representatives; though section 10 (application of State laws) has its exact counterpart in section 31. Section 9 must obviously be read in connection with section 12, which provides that writs for Senate elections shall be issued by the Governor of the State. Except that the State Governor issues the writs, and the State Parliaments may make laws for determining the times and places of elections, the Commonwealth has the same conduct and control of Senate elections as of elections for the House of Representatives. With those exceptions, it may legislate for both, it executes the laws relating to both, and it bears the expense of both (section 83).

Although the Parliament of a State has power to make laws for determining the times and places of elections of senators for the State, that power is not unlimited. It is subject in the first place to restrictions imposed by the Constitution itself-e.g. that the triennial elections to fill places vacated in rotation 'shall be made in the year at the expiration of which the places are to become vacant' (section 13). It is subject also to laws made by the Federal Parliament on subjects within its powers-e.g. laws on matters which necessarily come within the power to prescribe a 'uniform method of choosing senators'. And it must be noticed that the word 'uniform' necessarily precludes any legislation by a State, though prima facie within its powers, which conflicts with, or disturbs the uniform operation of, any'method of choosing senators' prescribed by the Federal Parliament.

There are thus two areas of authority: one including the 'uniform method of choosing senators', and vested in the Commonwealth Parliament; the other including 'times and places of elections of senators', and vested in the State Parliaments.

The question now in issue involves not only the determination of the limits of each of these areas, but also, in the possible event of their being found, on a reasonable construction of each, to overlap, a determination of the effect of Commonwealth and State legislation with respect to the common ground.

With respect to the overlapping area, if it exists, two extreme views are possible:

1. That the State right of legislation as to 'times and places' has priority, notwithstanding that it conflicts with Commonwealth legislation as to 'uniform method'; and that the Commonwealth must adapt its 'uniform method' to fit the varying policies that the States may see fit to adopt as to 'times and places'.
2. That the Commonwealth right of legislation as to 'uniform method' takes priority, notwithstanding that it conflicts with State legislation as to 'times and places', and whether it does or does not leave to the States any power of appointing'times and places'.

The Constitution, here and elsewhere, is susceptible of such extreme readings as to the respective powers of the Commonwealth and the States; but its whole character and purpose aim throughout at an interpretation which avoids either extreme, but distributes the power, wherever possible, so as to recognize a joint authority in each. In accordance with these general principles (except where the State has a 'concurrent' legislative power merely during the abstention of the Commonwealth from legislation), any overlapping area should be so divided as to give effect to every section of the Constitution and to each of its provisions, to ensure a fair distribution of control, and to give the utmost recognition to the just claims of both the Commonwealth and the States.

In this case there is such an overlapping. Provision for a uniform method of election may seriously affect the determination of times and places by the States; and on the other hand provision by the different States for determining times and places may hamper or even cripple the 'uniform method' prescribed by the Commonwealth. Allowing for the widest reading of the power to determine 'times and places', the exercise of that power must clearly leave to the Commonwealth a sufficiency of power to make such provision as is essential to the method of choosing which it decides to adopt.

It must also be remembered that, in the determination of the extreme limits of the two areas mentioned, the question of overlapping must be taken into consideration; the presumption being in favour of an interpretation which reduces the area of conflict to a minimum. Thus in deciding what the 'times and places of elections' are, the scope of the power to prescribe a 'uniform method' of choosing must be considered, and vice versa. In this connection it is necessary to consider the purpose of the grant of each power, as well as the weight and importance attaching to the grant.

The purpose of the Federal authority as to uniform method is plain, and in fact indispensable. The purpose of the State power as to times and places is probably to keep under State control the exercise, by the State Governor, of the power vested in him of issuing writs for Senate elections-a power which, if its exercise were controlled by the Federal Parliament, would be reduced to the mere formal right of signing a document.

As regards relative weight and importance, the power to prescribe a uniform method is clearly principal, and the power to appoint times and places subsidiary. A construction which would unnecessarily extend the subsidiary power so as to seriously hamper the effective exercise of the principal power is to be avoided.

The whole point of Mr Gordon's argument is that sections 88, 24 and 26 of the Commonwealth Electoral Act 1902 are ultra vires so far as Senate elections are concerned, on the ground that section 88 intrudes upon the power of the State Parliament to determine the 'times of elections', and sections 24 and 26 upon the power to determine the 'places of elections'.

1. Times of elections. Section 88 of the Commonwealth Act provides that in Senate elections, 'The date fixed for the polling shall not be less than seven days or more than thirty days after the date of nomination'.

This provision neither determines the time of the election, nor prevents the State Parliament from determining the time of the election. It merely prescribes as a necessary part of the 'method of choosing senators', the maximum and minimum intervals between two steps in the election. The Act nowhere attempts to limit the power of the State Parliament, or the discretion of the State Governor, as to when the writ shall be issued or the election held. The determination of the 'time of election'-so far as it is not fixed by the Constitution itself-is left entirely to the State.

But after the issue of the writ, the election is conducted by the Commonwealth in accordance with the method prescribed by the Federal Parliament. Ballot-papers have to be prepared and distributed, and complete arrangements made. Legislation as to the sequence of the different steps, and the time allowed for each, is necessarily involved in the method of choosing, and clearly must be within the powers of the Commonwealth Parliament. Any other course would lead to chaos.

2. Places of elections. Section 24 of the Commonwealth Act provides that:

The Governor-General may, by proclamation-

1. Appoint a chief polling place for each Division;
2. Appoint such other polling places for each Division as he thinks necessary;
3. Declare that any polling place shall cease to be a polling place.

Section 26 provides that when a polling place has been abolished, the Governor-General may 'direct at what place electors previously entitled to vote thereat may vote'.

In my opinion, notwithstanding the passage quoted from Quick & Garran, this is not a law for determining the 'places of elections'. The 'place of election' is the place where the nominations are received and the poll declared-which the Act does not attempt to determine in the case of Senate elections (see sections 104, 165). Polling places are not 'places of elections', but merely centres for collecting ballot-papers. Polling places are not essential to an election; the Commonwealth Parliament might have prescribed a 'method of choosing' which required all voters to vote by post. Would a State Parliament then have power to make laws for determining the places where postal pillar-boxes should be erected?

The Act as it stands provides for voting by post in certain cases. Has a State Parliament any power to make laws for determining where an elector shall mark his postal ballot-paper or where he shall deliver it?

The powers of the Federal Parliament to make laws prescribing a uniform system of choosing senators, and laws relating to the election of senators, clearly include the power to provide for the compilation of rolls, the grouping of electors in subdivisions of rolls, and effective provisions with regard to the voting of electors in each group so as to secure effective and honest exercise of the franchise, and to prevent personation and fraud. The 'method of choosing' might allow any elector to vote at any polling place in the State-or in the Commonwealth; or it might restrict him to polling places in a particular division or subdivision. Whichever method is adopted, the whole electoral machinery must be framed in accordance with that method.

As it happens the particular method adopted in the Act is to group the electors according to the polling places; to build the rolls, as it were, round the polling places. The polling places must be determined before the rolls can be compiled. An Act of a State Parliament declaring other polling places would conflict with the 'method of choosing senators' prescribed by the Commonwealth Act, and would be void.

Looking at the matter from the point of view of practical administration it is plain that the power to fix polling places claimed by Mr Gordon would be nugatory without a power to assign electors to the several polling places. A polling place at which no electors can vote is an absurdity. To make his contention effective, Mr Gordon must claim that a State Parliament has the right, not only to appoint polling places, but to assign electors to the polling places appointed-i.e. to break up and redistribute the Commonwealth rolls. No such power is conferred upon the State by the Constitution; and the establishment of such a claim would make a 'uniform method of choosing senators' impossible.

To sum up: the power of the State to make laws for determining the times and places of elections of senators is a power which was meant to be incidental to the power given to the State Governor, to issue the writs for the elections of senators. A writ ordinarily names a time and place of election; it does not fix places of polling. The power of the Federal Parliament to prescribe a uniform method of choosing extends to the whole machinery of the election; and includes a power to prescribe the sequence of the several steps, the structural organization of the rolls, the collection of ballot-papers, and so forth. The provisions of the Commonwealth Act objected to by Mr Gordon are essential to the 'method of choosing senators' adopted by the Parliament, and do not affect the power of the State Parliament to make laws for determining'the times and places of elections of senators'.

Mr Gordon states that:

The part of the Constitution which gives the States equal representation in the Senate and control over the election of senators was only established after strenuous contention, and it forms the bulwark for State rights.

As regards equal representation in the Senate this statement-though irrelevant-is unimpeachable. But as regards the control of the States over elections of senators-or at least over the times and places of elections of senators-it is not borne out by history. Indeed, the absoluteness of the provision as to times and places seems to be more a matter of accident than of intention. In the Constitution of the United States (which provides for the election of senators by the State legislatures) the places, but not the times, of elections were left ultimately to the States. In the Commonwealth Bill of 1891, which adopted the same mode of election, the power of the State Parliament as to both times and places was subject to laws made by the Federal Parliament. This was also the case in the first draft of 1897; and at the Sydney sitting of the Convention a suggestion by the Victorian Parliament to give the Commonwealth Parliament express power to legislate as to time and place, was agreed to (Convention Debates Sydney, pp. 987-8). It was not until after the Bill had been reported a fourth time at the Melbourne session that, in the process of recasting by the Drafting Committee, the clause took its present shape.

There can be no doubt that it is intended by the Constitution that the Commonwealth and the States shall co-operate in providing for the election of senators; and it is also desirable-apart from legal requirements-that there should be a mutual understanding so as to secure efficiency of administration and economy of cost. The exact position of the dividing line between their functions is to be deduced from the Constitution itself, read in the light of a practical understanding of the course and conduct of elections. It is submitted that the attempt to invest this issue with grave constitutional effects arises from a misunderstanding. The point is really one of practical administration; and on examination the provisions of the Federal Act will be found to be workable as well as legal, while the suggestions of Mr Gordon, must, if acted upon, result in conflict and confusion.

[Vol. 2, p. 479 & Vol. 3, p. 67⁽¹⁾]

(1) The above is a consolidation of opinions dated 4 December 1902 and 30 December 1902 respectively by Mr Deakin on this subject.