A.B.C., a native of India, born in the Punjab, has claimed to be enrolled as an elector for the Division of Adelaide, South Australia.

It is stated that claimant came to South Australia in 1896, and became qualified to be registered on the House of Assembly Roll of the State by virtue of the Electoral Laws Amendment Act 1904, No. 876, and first applied to be enrolled on 9 May 1911. I assume that he is still enrolled for the State.

The Chief Electoral Officer minutes the papers as follows:

The view hitherto taken after conference with the law authorities has been that a right under section 41 of the Constitution must have been acquired prior to the passing of the Franchise Act 1902. If this view be correct A.B.C. is not entitled to Commonwealth enrolment.

The Secretary, Department of Home Affairs asks for advice.

Section 41 of the Constitution is as follows:

41. No adult person who has or acquires a right to vote at elections for the more nu-merous 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 Par-liament of the Commonwealth.

The section has not yet been the subject of judicial decision. The difficulty of con-struing it is dealt with at some length in Quick & Garran, pp. 484-7.

In my opinion, a right, to be preserved under the section, must have been in exist-ence prior to the passing of the Federal Franchise Act.

Section 41 must, I think, be read in the light of section 30, which provides that 'Until the Parliament otherwise provides' the qualification of Commonwealth electors 'shall be in each State that which is prescribed by the law of the State as the qualifica-tion of electors of the more numerous House of Parliament of the State'.

I think that the intention of section 41 is that an elector, who under the provisional franchise established by section 30, has (at the establishment of the Commonwealth) or acquires (before the Parliament passes a Franchise Act) a right to vote at Com-monwealth elections by virtue of his State right, that right shall not be taken away by any law of the Commonwealth.

That is to say, the right to vote at State elections which is referred to in section 41 means a right to vote at State elections which is by section 30 made effective for Fed-eral elections; a man who is a Federal elector by virtue of section 30 cannot, while his State right continues, be disfranchised by Commonwealth law.

[Vol. 12, p. 493]