The Prime Minister:

Mr Arthur Griffith, M.L.A., of New South Wales, in a letter to the Prime Minister raises the contention that section 96 of the Commonwealth Electoral Act 1902- providing that no member of a State Parliament shall be capable of being nominated as a senator or member of the House of Representatives-is unconstitutional. He says:

It seems to me that when the Constitution Act lays down absolutely certain disqualifications, without giving Parliament any voice in the matter that if Parliament adds another disqualification such action must be ultra vires.

If Parliament has power to create disqualifications it seems to me the framers of the Constitution were wasting time in doing so.

The Prime Minister asks to be advised on the matter.

Section 16 of the Constitution provides that the qualifications of a senator shall be the same as those of a member of the House of Representatives.

Section 34 provides that: 'Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be' as therein stated.

Section 44 provides that any person who is under any of the disabilities therein mentioned 'shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives'.

The effect of these provisions is that the Parliament has power to define the qualifications-and correlatively the disqualifications-of members of Parliament; subject to the limitation that it cannot qualify any person who is disqualified by section 44. It can add to those disqualifications, but it cannot subtract from them.

Accordingly I am of opinion that section 96 of the Commonwealth Electoral Act 1902 is not ultra vires.

[Vol. 4, p. 59]