The franchise for Commonwealth elections cannot be extended to persons under twenty-one by State legislation reducing the age of majority; any such extension requires Commonwealth legislation under ss 30 and 51(xxxvi) of the Constitution.
Later decisions that cite King v Jones
Decisions cited by King v Jones
KING v. JONES ;
McEWEN v. HACKERT ;
JONES v. JONES. [1972] HCA 44; (1972) 128 CLR 221
Parliamentary Elections (Cth)
High Court of Australia.
Barwick C.J.(1), McTiernan(2), Menzies(3), Walsh(4), Gibbs(5) and Stephen(6)
JJ.
CATCHWORDS
Parliamentary Elections (Cth) - Franchise - House of Representatives and Senate - Adult person with right to vote at elections for more numerous house of State Parliament not to be prevented by law of Commonwealth from voting at Commonwealth parliamentary elections - Adult person - State law conferring franchise for lower house upon persons who attain eighteen years - State law providing that persons who attain eighteen years are sui juris, of full age and capacity - Reservation from State law of conferment of status necessary for exercise of State or Commonwealth voting rights - The Constitution (62 & 63 Vict. c. 12), ss. 8, 30, 41 51 (xxxvi.) - Commonwealth Electoral Act 1918-1966 (Cth), s. 39B - Age of Majority (Reduction) Act 1970-1971 (S.A.), s. 3 (1), (6) - Constitution Act, 1934-1971 (S.A.), s. 33.
HEARING
Sydney, 1972, August 1-4; September 1. 1:9:1972DECISION
September 1.
2. Section 58 comprising Pt IX of the Act provides that a person who has not
been enrolled pursuant to a claim for enrolment may
apply to a court of
summary jurisdiction for an order directing that his or her name be enrolled.
The defendant, Ernest Mervyn Jones,
at relevant times acted as electoral
registrar for the subdivision of Bragg and as divisional returning officer for
the division
of Boothby. In his capacity of electoral registrar, the defendant
received the applicant's claim for enrolment, and as divisional
returning
officer notified her of his rejection of that claim. Thereupon, the
applicant, by complaint, applied to the magistrate's
court in Adelaide, a
court satisfying the requirements of s. 58 (1), for an order directing that
her name be enrolled. (at p227)
3. Pursuant to s. 40 of the Judiciary Act 1903-1969 (Cth) this application
was removed into this Court by order made at the instance
of the
Attorney-General of the Commonwealth. The parties agreed on a statement of
facts in order to obviate the taking of evidence
in this Court. The
application has, therefore, been heard by a Full Court, contemporaneously with
two other like applications for
orders directing enrolment also removed into
this Court under s. 40 of the Judiciary Act, namely, the cases of Gerard
Robert McEwen
v. Colin Harrison Albert Hackert, No. 60 of 1972; and David
Kelvin Jones v. Ernest Mervyn Jones, No. 52 of 1972. Though the ages
of the
several applicants are not identical, all were eighteen years or more of age
and all were under the age of twenty-one at the
date of claiming enrolment
under the Act. Each made a claim for enrolment in a sub-division of an
electoral division of South Australia.
The electoral divisions were not
identical nor was the same electoral registrar and divisional returning
officer involved in each
case. But there is no relevant distinction between
the cases: each has been brought to raise the same question. In each case
the
court gave the Solicitor-General of South Australia leave to intervene on
behalf of the Attorney-General of that State. I shall
use the facts of the
application of Susan Therese King in these reasons as symptomatic of all three
cases and will discuss the arguments
offered in each case by the respective
counsel, the same senior counsel appearing for both Susan Therese King and
Gerard Robert McEwen.
My reasons in this case will therefore apply to all
cases. (at p228)
4. The applicant, at the time of making her claim to be enrolled, was an
elector for the House of Assembly of the State of South
Australia, that House
being the more numerous of the two Houses of the legislature of that State.
She was at that time of the age
of eighteen. She is and at all material times
had been a British subject and had been a resident of the sub-division of
Bragg for
at least one month prior to her application. She is not disentitled
to vote at any election for members of the House of Assembly
of the State of
South Australia by reason of any of the circumstances referred to in s. 33 (2)
of the Constitution Act, 1934-1971 (S.A.), nor disentitled to enrolment under
the Act by reason of any of the circumstances referred to in s. 39 (4)
and (5)
of the Act. (at p228)
5. The first submission of the applicant is that she is an "adult person"
within the meaning of s. 41 of the Constitution and thus within the ambit of
s. 39B of the Act. Her second submission is that, by reason of ss. 30, 31 and
41 of the Constitution, the franchise for an elector for the House of
Representatives in respect of electoral divisions of the Commonwealth within a
State
is as determined by the legislature of the State or, alternatively, that
this is presently so because the Parliament has not "otherwise
provided"
within the meaning of s. 30 of the Constitution. (at p228)
6. The first submission of the applicant turns exclusively upon the
construction of s. 39B of the Act, which in turn involves the
meaning of s. 41
of the Constitution: that is to say, the matter is entirely a question of
law. (at p229)
7. Section 39B of the Act is in the following terms:
"39B. Notwithstanding any other provision of this Act, a
person to whom section forty-one of the Constitution applies
is entitled to enrolment under Part VII and to vote at any
Senate election or House of Representatives election." (at p229)
8. Section 41 of the Constitution provides as follows:
"41. 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." (at p229)
9. Having regard to the facts which I have related and on the assumption that
a franchise derived from a State law made subsequent
to the enactment of the
Constitution is within s. 41 - a matter of construction which it is
unnecessary presently to resolve - no question arises as to whether the
applicant has or has
acquired the right to vote at elections for the more
numerous House of the Parliament of a State or that that right at present
continues.
The only question on this submission is whether as a matter of law
she is a person entitled to the benefit of the constitutional
provision and
therefore of the statutory provision. (at p229)
10. There are some basic propositions of constitutional construction which
are beyond controversy. The words of the Constitution are to be read in that
natural sense they bore in the circumstances of their enactment by the
Imperial Parliament in 1900. That
meaning remains, beyond the reach of any
Australian Parliament, subject only to alteration by the means provided by s.
128 of the Constitution. The connotation of words employed in the Constitution
does not change though changing events and attitudes may in some circumstances
extend the denotation or reach of those words. These
propositions are fully
documented in the reported decisions of this Court which has the task of
finally and authoritatively deciding
both the connotation and the denotation
of the language of the Constitution. (at p229)
11. It is appropriate, therefore, to refer briefly to the position of the
franchise in the Australian colonies at the time of the
passing of the
Constitution Act in July 1900. Each of the federating colonies and the colony
of Western Australia had at that date an electoral franchise for
males of and
above the age of twenty-one years. The colonies of South Australia and
Western Australia had extended that franchise
to include females of that age.
The qualifications and the grounds of disqualification of an elector for the
more numerous House
of the legislature of a colony otherwise varied. In
particular, three of the colonies including the colony of Western Australia
had a property qualification which supported plural voting. For particulars,
see Quick & Garran, Annotated Constitution of the Australian Commonwealth, pp.
469-470. However, the colony of South Australia did not have a property
qualification of any
kind. (at p230)
12. The Imperial Parliament had to provide in the Constitution for the
initial election of the Parliament and for a franchise until such time as the
Parliament should legislate to specify the
qualifications for electors of the
Parliament. This provision was effected by ss. 8, 9, 10, 30 and 31 of the
Constitution. Section 30 provided both for a franchise for the election of the
House of Representatives in the first Parliament and a franchise for election
of that House until the Parliament legislated on the matter. Section 31
utilized the colonial electoral machinery continued in force by s. 108 of the
Constitution as State law, for the purpose of electing the first House of
Representatives and thereafter, and if subsequently amended, perhaps,
as so
amended, until the Parliament passed a Commonwealth electoral law. Sections
8, 9 and 10 of the Constitution made comparable provisions as to the franchise
and the procedure for the election of the Senate. (at p230)
13. But clearly, in my opinion, it was contemplated from the inception of the
Commonwealth that in Australia, unlike the position
in relation to the
Congress as I think it was thought to be in the United States, the Parliament
would determine the franchise for
Australia for the election of both the House
of Representatives and the Senate. Consequently, both s. 30 and s. 31, in
relation to the House of Representatives, are prefaced with the formula "until
the Parliament otherwise provides". The provisions
of ss. 8, 9 and 10 with
respect to the Senate are to the like effect. Section 51 (xxxvi.) gives
legislative power to the Parliament to so provide. (at p230)
14. However, there was evidently thought to be a need to ensure that the
Parliament did not enact or enforce a franchise which was
less liberal in
basic respects than the most liberal franchise of the colonies. As I have
indicated, the age condition of the franchise
was the same in all the colonies
but females were not enfranchised in all. Further the franchise was not
completely uniform in respect
of other qualifications or in respect of
disqualifying circumstances. Section 41 is evidently intended to ensure that
certain persons who are entitled to a State franchise shall not be excluded
from the Commonwealth
franchise. The terms of the section raise a number of
questions including the identification of those persons to whom the Parliament
may not deny a vote. Some of these questions are beyond the purview of the
controversy in the present case and need not be discussed
in what follows. (at
p231)
15. I should remark at once, however, that s. 41 purports to protect
individuals who may not have an identically conditioned State franchise.
Thus, a lack of uniformity in the operation
of the section may be possible
when individual cases are compared. But it may be expected, in my opinion,
that the franchise enacted
by the Parliament will be uniform, and if s. 41
secures the right of voting to a person entitled to the most liberal franchise
of a State, only relatively minor elements of the
franchise are likely to give
rise to such a lack of uniformity subject, of course, to the possibility of
other divergences in the
State franchises due to legislative changes
subsequent to the enactment of the Constitution. A review of the conditions
of the colonial franchise, other than those of age and sex, indicates that the
diversity in the State
franchise was confined to such matters as length of
residence, stipulation for and the extent and purpose of a property
qualification
and the occasions for disqualification. The major of these
conditions, namely, a property qualification, has disappeared from the
franchises of the States for the more numerous House of the State legislature
and so far no other radical changes have been made
in the State franchises
since federation, other than the admission of females of and above the age of
twenty-one years to the franchise.
(at p231)
16. Section 41 is a permanent provision of the Constitution intended, as I
think, to find its principal operation when the Parliament had made a law
determining the Commonwealth franchise.
The expression in s. 41, however, is
"any law of the Commonwealth". Thus, it was theoretically possible for s. 41
to have had an operation before the Parliament had passed an electoral Act:
and it is also theoretically possible that, even after
the passage of a
Commonwealth electoral Act, some Act not being an electoral Act might operate
to impede a person within the description
of s. 41 from voting at an election
of the Parliament. But the law principally in mind by the draftsmen of s. 41
was, in my opinion, a law regulating the franchise. (at p231)
17. We are not here concerned with the interpretation of s. 41 in all its
aspects. The precise intent of its provisions in some respects may be thought
obscure, though it is clear from its language
that it intended to ensure that
the franchise enacted by the Parliament should not be such as to preclude a
person falling within
its description from voting at a Federal election.
Because of the presence of s. 39B of the Act, we are not here concerned with
the
effect which s. 41 might have had upon the validity of the Act, had that
section not formed part of it. Having regard therefore to the terms of the
section and the facts and circumstances of the case, the question to be
decided at this stage is simply the meaning of the expression
"no adult
person" in s. 41 of the Constitution. (at p232)
18. Naturally, as the Constitution must be read as a whole, it is necessary
at the outset to consider whether other provisions of the document throw light
on the meaning
of the words in question. In my opinion, there are only two
provisions of the Constitution which by their language might be said to bear
upon that meaning. I refer to s. 34 and s. 128. I shall need to discuss each
in turn. I turn first to s. 128. (at p232)
19. In providing in s. 128 the mechanism for the alteration of the
Constitution the possibility of a referendum being held before the Parliament
had made its own law for the Commonwealth franchise had to be borne
in mind.
It was therefore provided in s. 128 that "... until the qualification of
electors of members of the House of Representatives becomes uniform throughout
the Commonwealth,
only one-half the electors voting for and against the
proposed law shall be counted in any State in which adult suffrage prevails".
The draftsmen of these words evidently equated the provision by the Parliament
of a franchise for the election of the House of Representatives
with the
attainment of uniformity in the qualification of electors of members of the
House of Representatives. With the presence
in the Constitution of s. 41, it
is apparent that the qualification for electors of the House of
Representatives will not necessarily at any time be entirely
uniform. Because
of that section, the divergent qualifications and circumstances of
disqualification in the State franchise may
have to be regarded. The States,
of course, retain the right to determine the franchise for the election of the
more numerous House
of the State legislature. That is a circumstance which
could be relevantly significant if s. 41, in referring to a person who
"acquires a right to vote", included persons who at any time subsequent to the
commencement of the
Constitution acquires such a right under an electoral law
of a State passed subsequent to such commencement. As I have already remarked
this
matter of construction of s. 41 is one as to which it is unnecessary to
express an opinion in order to discuss this applicant's submissions. But at
least the possibility
of such a construction has a bearing upon the
draftsmen's assumption. The draftsmen were, I think, in error in treating the
uniformity
of qualification of the electors as necessarily following upon the
passage by the Parliament of a law governing the franchise for
the election of
the House of Representatives. As I have mentioned the law of the Commonwealth
defining the franchise can be expected
to be uniform in its operation, though
no express provision of the Constitution dealing with the exercise of the
legislative power under s. 51 (xxxvi.) ensures it. There is no need here to
discuss whether s. 117 may have any relevant operation. Further, the extent of
the franchise which the Parliament provides might leave no room for the
operation
of s. 41. But clearly enough, s. 41 can operate to affect that
uniformity, particularly if rights obtained under State electoral legislation
passed subsequent to the
commencement of the Constitution are relevant to the
operation of that section, though, as I point out later, these changes in the
State franchise cannot alter the
consequence or operation of the opening words
of s. 41. (at p233)
20. However, though the use of the term "uniform" in s. 128 might in the
circumstances have been inexact, the intention of the proviso which I have
quoted from the section, even bearing in
mind the presence of s. 41 in the
Constitution and its possible construction, is plain. The terms of the
proviso attempt to prevent the result of the operation of s. 128 in relation
to a proposed law being distorted by the circumstances that in some one or
more States, due to its or their franchise,
more people will be entitled to
vote than would be the case if the franchise of the States was substantially
uniform. The distortion
of the result of a referendum was most likely to be
caused by the voting in States in which women over the age of twenty-one as
well
as men over that age were or might be enfranchised. The solution adopted
by the draftsmen was arbitrary in that the vote cast, both
pro and con of the
proposal, was halved in any State in which what they called "adult suffrage"
prevailed. The halving of the vote,
as distinct from taking any other
proportion of it, in my opinion, suggests that the purpose was to reduce if
not eliminate the effect
in a referendum of the votes of every individual of
the age of twenty-one, as compared with the effect of the votes either of
males
over that age only, and perhaps also of persons of both sexes over that
age who also satisfied a property qualification. There being
a minimum age of
twenty-one years common to the franchise in all the colonies, the draftsmen's
description "adult suffrage", in my
opinion, was of the franchise in a colony,
now a State, in which all persons, females as well as males, of and above the
age of twenty-one
years were entitled to vote. "Adult suffrage" in this
section was, in my opinion, a reference to a franchise of the kind prevailing
at the time in South Australia, there generally known at the time as "adult
suffrage". The description "adult" would not be satisfied,
in my opinion, by
a franchise in which males and females irrespective of age equally
participated but necessarily required that the
individuals of each sex should
have attained the age of twenty-one years; in other words, should be adult in
what, in my opinion,
was the then commonly accepted meaning of the word. The
early demands such as those of the Chartists were for manhood suffrage,
a
universal suffrage for males over the age of twenty-one years. When South
Australia in 1894, pioneering in the liberalizing of
the franchise, decided to
extend the right to vote to women, it already had manhood suffrage, that is,
the right to vote for all
males of and over the age of twenty-one years,
without any property qualification. The Bill for an Act by which the
extension of
that franchise was intended to be effected was known in the
legislature as the "Adult Suffrage Bill" and was debated under that caption,
with the situation it would produce if passed being referred to by speakers as
"adult suffrage" (see, for example, Debates in the
Houses of Legislature,
South Australian Parliament, 2nd Session, 14th Parliament (1894), vol. I, pp.
514 et seq.). Adult suffrage,
in my opinion, requires at least full age as
the condition for the enfranchisement of both sexes. It may well be that the
absence
of a property qualification is also required. I have so indicated in
what I have so far said: though it would not affect my conclusion
if a
franchise of males and females of and over the age of twenty-one who satisfied
a property qualification were to be regarded
as adult suffrage. In any case,
the property qualification in those States which included it as a condition of
the franchise was
so small that, in the social conditions prevailing at the
time, it might not have excluded many persons from the vote. (at p234)
21. When in 1908 the State of Victoria extended its franchise to females of
and over the age of twenty-one, the Bill and the Act
were referred to both in
title and in debate as the Adult Suffrage Bill or Act, though that State at
that time maintained a very
small property qualification as the basis of
plural enrolment, though the elector could vote only once. It seems to me to
be inescapable
that the expression "in which adult suffrage prevails" in s.
128 refers, in my opinion, to a State in which the persons who were
entitled
to vote were persons of and over the age of twenty-one years irrespective of
sex. I am unable to accept the submission
that the expression "adult
suffrage" in s. 128 embraced only the condition in the franchise of equal
treatment of the sexes, but
did not include the condition of a minimum age for
each sex. The language of s. 128, in my opinion, is thus an aid to the
construction
of the expression "adult person" in s. 41, the word "adult" being
used as an adjective in each place. The universality indicated
by the
expression "adult suffrage" is supplied in s. 41 by the whole expression "no
adult person". (at p235)
22. Much reliance was placed by the applicant's counsel on the language of s.
34 of the Constitution. This section provides the qualifications of a member
of the House of Representatives "until the Parliament otherwise provides".
No
doubt the expression "he must be of the full age of twenty-one years" used in
addition to the condition that he "must be an elector
entitled to vote at the
election of members of the House of Representatives" appears to contrast with
the opening words of s. 41 - "No adult person". But the structure and purpose
of the two provisions are very different. Section 34 is expressed in the
masculine singular. To include the feminine, s. 34 relies upon s. 1 of the
then current Interpretation Act, 1889, of the United Kingdom. Thus, one of
the purposes of the use of the words "no adult
person" in s. 41, a function of
the words conceded by counsel, that is to say, to include both sexes, was
conveniently left by s.
34 to the operation of an interpretation Act.
Further, s. 34, in setting out the qualifications of a member of the House of
Representatives,
and therefore of the Senate (see s. 16 of the Constitution)
had need to include a number of conditions additional to that of a minimum
age. Its purpose is quite different from the purpose
of s. 41 which as a
limitation on Commonwealth power is in the nature of a guarantee of the
franchise to certain individuals. One might expect
that this difference of
purpose might well affect the form of expression in the constitutional
provisions, and so I think it does
in this Constitution. The terms of s. 34,
in my opinion, have no bearing on the construction of s. 41. In particular,
its terms do not support or warrant the argument of the applicant that the
word "adult" was chosen for use in s. 41 in order to exclude from that section
the element in a franchise of a minimum age. That argument was that by using
the word "adult"
as an adjective in the expression "no adult person" in s. 41,
the Constitution intended the word "adult" to be read in contrast to the
expression in s. 34 "of the full age of twenty-one years". The submission
then proceeds that the word "adult" does not mean "of the full age of
twenty-one
years" or any equivalent of those words but simply means "mature".
Maturity is said to be a condition in contradistinction to the
artificial
criterion of "full age" which is the attainment of the age of twenty-one
years. (at p235)
23. A great deal of what was said in argument on behalf of the applicant
depended upon acceptance of this construction of s. 41 and was directed to the
proposition that the court ought to be satisfied that every person, male and
female, in Australia is, as
of this time, mature at the age of eighteen years:
and that therefore the applicant was mature in a relevant sense at the date of
her application for enrolment under the Act. Statutes passed by State
legislatures, but particularly the Age of Majority (Reduction)
Act, 1970-1971
(No. 15 of 1971) and the Constitution Act Amendment Act (No. 2), 1970-1971
(No. 17 of 1971) of the State of South Australia, were referred to as
evidentiary material tending,
it was said, to that conclusion. So also were
statutes of the Commonwealth. It was submitted that these various statutes
indicate
that, certainly in the minds of the members of the respective
legislatures, but also in the minds of the general public, an
eighteen-year-old
person is regarded in 1972 as, and is, mature. It was
claimed that the description "mature" was capable of a developing application
widening its denotation as attitudes changed in the community. The submission
was that the words "no adult person" meant when enacted
no mature person and
that whilst it might have been considered in 1900 that to be such a person it
was necessary to be twenty-one
years of age, by now it is considered that a
person who has attained the age of eighteen is such a person. But that, it
seems to
me, was an unnecessary assertion. I would see no difficulty if the
word "adult" were replaced by the word "mature" in s. 41, in
agreeing that the
description would at any time be applied to the facts as at the date of
application for enrolment of the applicant,
the word "mature", if so used, of
its nature not being limited to the concepts of any particular time. It would
not be the case of
a word of fixed connotation acquiring an expended
denotation through a change in events or in attitudes or opinions. It would
merely
be a case of applying the words "no mature person" to the applicant, to
ascertain whether she satisfied them as of the relevant times.
(at p236)
24. If, on the other hand, the word "adult" is not so substituted, and if it
means "of the age of twenty-one years", there would
be no room for the
application of any widening denotation of the word. Its reference to the
arbitrary criterion of the attainment
of an age would make its denotation
insusceptible of change or variation. Therefore, whichever of the two
suggested meanings of
the word "adult" is adopted, I find no relevance in this
case in the reported decisions to which counsel referred in this connexion.
Perhaps R. v. Brislan; Ex parte Williams [1935] HCA 78; (1935) 54 CLR 262 sufficiently
illustrates the type of case to which he
referred. (at p236)
25. If the expression "no adult person" means "no mature person" and maturity
is not equated with the attainment of full age or
of majority then it would be
for the electoral registrar in the first instance and, on appeal, for the
court of summary jurisdiction
to be satisfied by evidence that the person who
makes application for enrolment is at the time of his application a mature
person.
I am somewhat at a loss to understand by what criteria the electoral
registrar would decide this question. Further, I do not see
how the registrar
could handle his business if a large number of applicants claimed to be mature
in some sense undefined in the legislation
which registrars are called upon to
administer. To parry the thrust presented by this difficulty, it was
suggested by the applicant's
counsel that this Court ought to make a
pronouncement that all eighteen-year-old people are mature in some specified
sense. In other
words, that this Court should now set a minimum age based
upon its own conclusions of fact. But this Court has no power so to do.
The
court of summary jurisdiction can hear an application by an individual for
enrolment. Whether that person ought to be enrolled
will depend upon the
material facts which that person presents to the magistrate and the
application of the Act properly construed
to those facts. The magistrate
could do no more than thus decide the case before him. When, as in this case,
the application is
removed into this Court, we can do as the magistrate, had
he heard the matter, could and ought to have done. But this Court can
do no
more. In any case, the selection of a minimum age for the franchise is
eminently a legislative and clearly not a judicial
function. (at p237)
26. Although the parties had agreed on the facts of the case so as to avoid
any contest of fact before the Full Court, the applicant's
counsel sought to
supplement that agreed statement of facts by evidence to be given by a
sociologist on the question whether the
applicant was a mature person at the
relevant time, presumably on the footing that all persons of eighteen years of
age are relevantly
mature. However, it was indicated to counsel that the
court would first decide the meaning of s. 41 of the Constitution and that
when it had decided that meaning, if it became necessary so to do, it would
take up the question whether any, and if so
what, further evidence should be
admitted along the lines proposed by the applicant. Consequently, the court
is not called upon
at present to express any opinion upon the question of fact
which might arise if the construction proposed by the applicant were
adopted.
(at p237)
27. I have already indicated my view of the expression "adult suffrage" in s.
128 and of the absence of the word "adult" and the presence of the words "of
full age" in s. 34. (at p237)
28. I turn to consider whether "no adult person" in s. 41 should be construed
as "no mature person". In the animal kingdom, maturity is a reference to
physical maturity, that point of time
beyond which there is no further
physical growth. So it is in the plant kingdom. So in the precise use of
language it is in relation
to humans. I suspect that the physical growth of
humans, at any rate of Australians, that is completion of skeletal formation
and
extension, is complete before the attainment of eighteen years of age. I
cannot believe that the draftsmen of the Constitution in 1900 would have
contemplated giving the franchise to males and females whose physical growth
had reached its maximum, making that
fact a criterion of the franchise. But
physical maturity apart, the word "mature" may possibly be used to express a
person's suitability
to exercise a capacity in relation to some subject matter
or in relation to some specified purpose or activity. For my part I would
regard this as an inappropriate use of the word. It is used at times as an
adjective descriptive of behaviour or outlook in
contradistinction to
adolescent or juvenile behaviour or attitudes. But even if thought to be a
proper use, it does not follow that
a person expressed to be mature in
relation to some stated activity or in relation to some attitude or behaviour
is mature in relation
to all matters or activities or in relation to all
purposes. A capacity to engage in contracts, to make a will, to borrow money
or to drive a motor vehicle is quite disparate from a capacity to exercise a
franchise. To decide to accord the one is not to compel,
or perhaps even
persuade, a decision to accord the other. If any instance of the expression
of so obvious an opinion were necessary,
one could recall what was said by
those who formed the majority of the Committee on the Age of Majority in the
United Kingdom on
whose report the applicant relied. It was there said in
par. 25:
"But it does not seem to us that changes in the civic field
are at all likely to follow changes in the private field even if we
wished that they should. It is a very different thing to cope
adequately with one's own personal and private affairs and to
measure up to public and civic responsibilities." (at p238)
29. But in truth, public affairs cannot be conducted on such a vague and
imprecise criterion as the expression "no mature person"
would afford. I
could derive no better synonym from the argument of counsel than "grown up"
which adds nothing of a definitive nature.
I can find no basis whatever for
the proposition that the word "mature" ever related to the attainment of any
particular age. Indeed
the concept of maturity, if extended to embrace more
than physical growth, is in contrast to that of majority and would deny the
need to attain a specific and arbitrarily determined age to fulfil it. Of its
nature, if not confined to use in relation to physical
growth, the word
relates to comparative qualities and capacities of individuals irrespective of
age. (at p239)
30. It has always been necessary for the law to select a specific age for the
purpose of determining the capacity of a person to
do various things. The
chosen ages are to a degree arbitrary but the choice has to be made and a
specific age laid down because
the criterion is to be applicable to all
persons and to be used without further inquiry by the courts, officials and
members of the
public. From a very early time, the selection of the age of
twenty-one at which a person should be capable of exercising a Parliamentary
franchise was chosen. The greater the arbitrariness which it is suggested
prompted the initial choice or which contributed to its
maintenance over a
long period of time, the less weight there must be in the argument that the
draftsmen of a Constitution chose "maturity" in some undefined sense as a
principal condition of access to a Parliamentary franchise. In considering
the submission
that the word "adult" means no more than "mature", it is
important to bear in mind that it is a Constitution which we are called upon
to construe: and, in this instance, in relation to a most practical matter.
We pay little compliment to
the very experienced men who engaged in its
formation to attribute to the Constitution the deliberate adoption of so vague
and uncertain expression as "mature" in relation to the exercise of the
parliamentary franchise.
(at p239)
31. In my opinion, all these considerations lead me to the clear conclusion
that the words "no adult person" means no person of
or above the age of
twenty-one. In my opinion, they meant that in 1900: and they mean it now.
Because that is their connotation,
there is no room for any change in their
denotation, for that connotation is referable to the attainment of age
specified by a number
of years. A person was adult in the law in 1900, in my
opinion, when he or she was of full age. Until that point of time he or
she
was in law an infant in contrast to being an adult. An instance of the grant
of legislative power to the Parliament by reference
to the contrasting concept
of infancy may be seen in s. 51(xxii.). Further, the requirement that to be
an adult a person should have become of full age, attained his or her
majority, or the age of
twenty-one years, is in conformity with the common law
and also, in my opinion, with general usage of language, both as in 1900 and
as at the present time. Perhaps the long title of the South Australian Act,
No. 15 of 1971, can be regarded as a clear example of
a contemporary
acknowledgment of that circumstance. (at p239)
32. I turn now to the other submissions of the applicant. I can find no
justification whatever in the Constitution for the submission that it provides
that the Commonwealth franchise shall be determined State by State by
legislation of each State.
The terms of s. 30 and s. 51(xxxvi.) expressly
deny this proposition. I need say no more of it. (at p240)
33. The alternative submission was that the qualification of an elector for
the more numerous House of a State still provides the
Commonwealth franchise
for the House of Representatives because Parliament has not yet otherwise
provided within the meaning of s. 30. This submission concedes that if the
Parliament exercises its legislative power derived from ss. 30 and 51(xxxvi.),
the State franchise is supplanted except in so far as s. 41 operates because
of it. The submission is that in enacting a Commonwealth franchise by the
Act, the Parliament did not "otherwise
provide" within the meaning of s. 30.
I have had some difficulty in appreciating what the submission supposes those
words to require,
but as well as I have been able to understand it, the
supposition is that in order "otherwise to provide", the Parliament must make
a law which in terms refers to s. 30 or to its provisions, expressly
displacing them. But to enact a franchise which is to derive
its force and
applicability from the law made by the Parliament is, in my opinion, of
necessity to displace the terms of s. 30 in
relation to the qualification of
electors. In my opinion, this alternative submission lacks substance and
should be rejected. (at
p240)
34. I should now refer to the submissions made on behalf of the other
applicant for enrolment. He did not adopt the submission
that "no adult
person" meant no mature person. He accepted that the words meant persons who
had attained the age of twenty-one years,
a condition which he described as
having attained their majority. The submission as I understand it was that,
by reason of the two
South Australian statutes to which I have already
referred, the applicant was an adult person, that is, a person who had
attained
his majority and entitled to vote for the South Australian House of
Assembly. It was said that an adult person was a person who
had the status of
having attained his majority and that the status of a person was a matter
within the control of the State legislature.
Thus, it was said that if a
person had the status of an adult under the legislation of a State he
satisfied the description of s.
41. Much was said in support of this view but
in the long run the submission necessarily involved a proposition which, in my
opinion,
cannot be accepted. In my opinion, the submission involved the
proposition that the meaning of a section of the Constitution may be
determined by an Act of a State legislature or at any rate by the operation of
such an Act. Counsel in terms disowned any
such proposition: but, in my
opinion, it must form part of the reasoning to support the submission. If an
adult person within s.
41 is a person who has attained the age of twenty-one
years the argument to which I have referred, by describing that age condition
as the attainment of majority or the acquisition of the status of an adult,
seeks to make room for a State law altering the age at
which majority is
attained. By this path, the applicant seeks, in my opinion, to alter the
meaning of s. 41 by substituting a different
age condition for that which is
meant by the section. The Constitution, as I would construe it, required the
age of twenty-one to have been attained. That requirement of s. 41 cannot be
altered by any State law, or for that matter by the Parliament. Of course,
the Parliament may create a franchise which
makes the attainment of some other
and lower age a condition of its franchise. If that age is less than
twenty-one years the restrictions
on the Parliament's legislative power
implicit in the opening words of s. 41 would have no application. I mention
this matter because of an oft repeated suggestion during argument that the
Constitution should not be so construed as to make the limitation of the
franchise to persons of the age of twenty-one years incapable of alteration
except by constitutional amendment. But this suggestion does not pay any
attention to the legislative power given by s. 51(xxxvi.), for, by use of that
power, the Parliament may determine all the elements of the franchise,
including the minimum age of the elector
at a level which leave no room for
the intrusion of s. 41 in so far as it protects persons of and above the age
of twenty-one years. (at p241)
35. But the terms of the South Australian statutes in any case afford no
basis for the submission of this applicant. By s. 3(1)
of the Age of Majority
(Reduction) Act, 1970-1971, it is provided that:
"3. (1) Subject to this section, a person of or above the ageThe other sub-sections of s. 3 contain a number of areas of the law in relation to which the change in the law effected by sub-s. (1) shall not apply. There is no need for me to refer to any of these other than that of which sub-s. (6) speaks. That sub-section is in the following terms:
of eighteen years shall be sui juris and of full age and capacity,
and notwithstanding any rule of law, no deficiency of juristic
competence or capacity shall attach to, or be attributed to,
any such person."
"(6) This section shall not be construed as conferring anyIt is evident that the draftsman of s. 3 considered that the attainment of full age and capacity was the acquisition of a status, though for my own part I question whether the possession of the capacities derived from the attainment of majority is properly regarded as the possession of a status. However, the draftsman regarded what was effected by s. 3(1) as a change in status. Consequently, he seems to regard the access to a franchise as indicative of a status, presumably to be described as the status of an elector. Consequently, sub-s. (6) is expressed in the manner I have quoted. Thus, whether or not one agrees with the appropriateness of the nomenclature the statute adopts, which I do not, the changes effected by s. 3(1) are not to affect eligibility to vote at a Commonwealth election. Consequently, whatever else may be said of this submission, it is plain that s. 3 has no impact, and indeed no intention to have any impact, upon s. 41. Section 3 does not, in my opinion, advance the argument of these applicants, nor bring them within the operation of s. 41 of the Constitution. (at p242)
status necessary for the exercise of any electoral or voting rights
in this State or the Commonwealth."
36. The Constitution Act Amendment Act (No. 2) 1970-1971 undoubtedly makes
these applicants persons who have acquired a right to vote for the more
numerous
House of the Parliament of a State. If s. 41 extends to persons who
acquire the right to vote at elections for such a House under
a statute passed
later than the commencement of the Constitution, then these applicants would
satisfy so much of s. 41 as relates to the right to vote at a State election.
But that leaves the opening words, "no adult person", to be satisfied. The
Constitution Act Amendment Act (No. 2) does not assist the applicants in this
respect. Neither, as I have pointed out, does the Age of Majority
(Reduction)
Act. Thus, even if a State statute could alter the connotation or the
denotation of the relevant words of the Constitution, the South Australian
legislation does not support the submission of these applicants. Nothing else
I heard from their counsel did
so. Consequently, in my opinion, the
submission should be rejected. (at p242)
37. There remains the submission of the Solicitor-General for South
Australia, who said that he adopted the arguments of both counsel
for the
applicants. I assume he meant in the alternative for these arguments were
somewhat antithetical. I have already dealt with
each of the arguments and
need not repeat anything I have said. The Solicitor-General also added some
submissions of his own. The
first was that the purpose of including s. 41 in
the Constitution was to "achieve diversity". That some diversity in what I
have termed the minor elements of the franchise might result from the
operation of s. 41 is a circumstance to which I have adverted. But it strains
credulity to say that at the moment of the union of the people of the
former
colonies into one indissoluble Federal Commonwealth it was intended to foster
a diverse franchise State by State for the election
of the Parliament. The
terms of ss. 8, 9, 10, 30 and 31 deny any such possibility. So do the
assumptions of s. 128 to which I have earlier referred. So in my opinion does
s. 41 itself. The proposition needs but to be stated, for it, in my opinion,
to be rejected. (at p243)
38. The Solicitor-General then submitted that the word "adult" in s. 41 and
in s. 128 merely meant "male and female" with no reference at all to the
attainment of any age. On this view, the word "adult" has no function
whatever in the expression "no adult person" in s. 41. The word "person"
clearly includes males and females. If adult means no more, it clearly adds
nothing to the total expression.
Again, it seems to me, the argument calls
for no refutation: it provides its own answer. (at p243)
39. Lastly, the Solicitor-General argued that in order to determine who is an
adult within the meaning of the constitutional provision,
the legal capacities
of a person according to the provisions of the law of each State should be
considered. If, according to that
law, the person is an adult, the
constitutional requirement is satisfied. This proposition the
Solicitor-General applied to the position
in South Australia and submitted
that a person of eighteen years of age had attained his or her majority under
the Age of Majority
(Reduction) Act and was, therefore, adult. To this point
the argument was of a like kind with that canvassed by counsel for David
Kelvin Jones. With that argument I have already dealt. But faced with the
terms of s. 3 (6) of that Act to which I have already
referred, the
Solicitor-General submitted that that sub-section was invalid and of no effect
because, as he said, clearly the State
could not in any case affect the
eligibility of a person to vote at a Federal election. The contrariety
between the two branches
of this argument does not appear to have been
realized. But it clearly appears in the statement of the submission which I
have made.
Whilst it is abundantly clear that the State may not, by its
legislation, determine the meaning of the Constitution or directly change the
franchise enacted by the Parliament, I can find no reason why the State may
not lawfully limit the operation
of its statute so that it shall not so much
as purport to determine that meaning or affect that eligibility. That, in my
opinion,
is what sub-s. (6) affects to do. In my opinion, it is a valid
provision and effective to limit any operation s. 3 (1) might otherwise appear
to have. In the result, nothing said by the Solicitor-General affords any
reason for concluding that
any of the applicants are entitled to be enrolled
as electors of the Commonwealth. (at p244)
40. For all these reasons, each of the applications should, in my opinion, be
dismissed. (at p244)
McTIERNAN J. The primary question is what is the meaning of "adult person"
in s. 41 of the Constitution. This section is restrictive of federal
legislative power. The extent of the restriction intended by the section
depends upon the
meaning of "adult person". "Adult person" should be
construed as a term of the Constitution, not as it might be construed in
another context. In my opinion the term refers to a person who is not only an
elector of a State
but has attained adult age. When he or she, as the case
may be, claims the right under s. 41 of voting at elections for either House
of the Parliament of the Commonwealth, I think that "adult person" in s. 41 is
used as a term with a definite and specific meaning. The term means a person
who is adult by reason of having attained a specific
age, namely twenty-one
years. Section 41 does not contemplate a judicial inquiry to determine
whether a person under twenty-one years who is an elector under State law is
a
mature person and therefore an "adult person" within the meaning of s. 41. It
is of course within the power of the Federal Parliament to make a law under
which persons under the age of twenty-one years would
not on the ground of age
be prevented from voting at elections for either House of the Parliament of
the Commonwealth. (at p244)
2. In my opinion each of the present proceedings must fail. (at p244)
MENZIES J. These matters are not concerned with the power of the Parliament
of the Commonwealth to make a law amending s. 39 of
the Commonwealth Electoral
Act to give voting rights to persons under the age of twenty-one years. That
power exists and is not
here in question. Here the Court
is concerned with
the problem whether, because the State of South Australia has given the right
to vote at elections of members of
its House of Assembly to those who have
reached the age of eighteen years, it follows that those
thus enfranchised can
also vote
at Commonwealth elections by virtue of s. 41 of the Constitution of
the Commonwealth which is in these terms:
"41. 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." (at p245)
2. The simple question is whether a person who has reached the age of
eighteen years is an "adult person" as those words are used
in s. 41. (at
p245)
3. Two principal grounds have been advanced for an affirmative answer to this
question. The first is simply that because the Parliament
of South Australia
has, by its laws, (1) reduced the age of majority from twenty-one years to
eighteen years and, subject to certain
qualifications, made persons of or
above the latter age of full age and capacity - Age of Majority (Reduction)
Act 1971; and, (2)
given such persons voting rights - Constitution Act
Amendment Act (No. 2) 1970-1971 - such persons have become "adult persons" for
the purpose of the Constitutional provision.
The second ground is more
general and far reaching, though less easy to formulate with precision. It is
that the words "adult person"
in s. 41 do not refer to a person of a
particular age at all but rather to a person who has reached a particular
stage in his or
her development, i.e., maturity, and that now - even although
it was not so in 1901 - persons of eighteen years of age have reached
that
stage and therefore are adult persons. This argument wavered a little between
treating the words "adult person" in s. 41 as
meaning (1) a person of any age
who has in fact reached maturity and (2) a person who has reached the age
which ought to be recognized
as the age of maturity. (at p245)
4. It is only if both of these constructions are rejected that these matters
can, at this stage, be disposed of. An application
to call evidence relating
to maturity made at the hearing was deferred until the basic question of the
construction of s. 41 has
been decided. That question is simply whether the
words "adult person" mean a person who has reached the age of twenty-one years
or are satisfied by the establishment of maturity at some earlier age not
above the age of eighteen years. (at p245)
5. It appears to me clear that, unless there is in the Constitution some
context requiring a different meaning, the words "adult person" have been used
in s. 41 to differentiate those of full age from those who are infants in law
and further that, in 1901, persons were infants until they reached
the age of
twenty-one years when they became "adults" or "adult persons". The
Constitution-makers, in framing s. 41, were securing a Commonwealth franchise
to those entitled to vote in a State for the most numerous House of Parliament
but with a
particular safeguard, namely that however wide the State franchise
might be, infants should not be entitled to vote at elections
for the House of
Representatives or the Senate despite their enfranchisement by State law. The
safeguard so introduced was, I have
no doubt, intended to be uniform
throughout Australia. (at p246)
6. The character of s. 41 is that of a permanent constitutional provision.
It is not a provision to make temporary arrangements for the period between
the
establishment of the Constitution and the making of Commonwealth laws. It
applies to a person, who, in 1901, had or who, in the future, acquires
particular voting
rights by the laws of a State. (at p246)
7. It is beyond question that, in 1901, the legal meaning of the word "adult"
was a person who ceased to be an infant and became
of full age upon reaching
the age of twenty-one years. Indeed this was hardly in dispute. (at p246)
8. My inquiry is therefore whether there is anything in the Constitution to
show that the words "adult person" were not used with this ordinary meaning.
(at p246)
9. It is, of course, significant that the words are not in a private document
or in an ordinary act of Parliament but rather in
the organic instrument of
Government establishing a Federal Commonwealth and governing the Commonwealth,
States, and people of Australia.
It has often been said that the Constitution
must be construed generously to meet changes in circumstances in so far as its
language permits. This, as a general proposition,
I fully accept but it is
based upon principles which have little influence when what has to be
construed are words of limitation.
To escape regarding the word "adult" as a
word of limitation it was suggested that the word had nothing to do with age
or maturity
but was used with the significance of "male or female". This I
reject. The word "person" itself covers "male or female" without
any
superfluous adjective. In the Constitution, the word "person" is used again
and again, often in conjunction with the pronoun "his", but it is beyond
question that it covers
a woman as well as a man - see, for reference, ss. 4,
15, 34, 44, 75 (iii.), 120, 126. Accordingly, the suggestion that the word
"adult" is not a word of limitation, but a word of extension, cannot be
entertained. (at
p246)
10. In s. 128 there is to be found a reference to "adult suffrage"
prevailing. In the context the reference is to laws of a State authorizing all
adult persons to vote. This provision was framed to deal with a possible but
temporary situation, i.e., the event of a referendum
before the time that the
qualification of electors of members of the House of Representatives became
uniform throughout the Commonwealth.
That time has long since passed and it
will never have to be determined how the carry-over provision would have
applied had there
been in the interim period a referendum when there were
electoral laws in a State such as there are now in South Australia. Had
the
problem arisen, however, I have no doubt that the proper solution would have
been to submit the proposed law to the electors
qualified to vote for election
of members of the House of Representatives and in any State where all adults,
men and women alike,
were entitled to vote - even if voting was not confined
to such persons - to count but hald of the votes recorded. The only assistance
to be obtained from s. 128 is the reference to "adult suffrage" which simply
means a law entitling all adults to vote. (at p247)
11. There are two other sections of the Constitution to which attention must
be given. They are ss. 30 and 34. Section 30 is as follows:
"30. Until the Parliament otherwise provides, the qualificationThe contrast between s. 30 and s. 41 is illuminating. The limitation derived from the word "adult" in s. 41 is not present in s. 30 and consistently with its terms, had there been in South Australia in 1901 a law such as the Constitution Act Amendment Act (No. 2) 1970-1971, those enfranchised by that Act would have been entitled to vote at any Commonwealth election occurring before the Parliament of the Commonwealth had itself fixed the qualification of the electors. It is significant that s. 41 by the use of the word "adult" imposes a limitation which is absent from the temporary provision made by s. 30. The difference between s. 30 and s. 41 seems to render quite untenable the contention that Commonwealth franchise depends entirely upon the law of a State. The detailed difficulties of the South Australian legislation, particularly the effect of s. 3 (6) of the Age of Majority (Reduction) Act, I can leave to one side. (at p247)
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."
12. The significance of s. 34 is that, in stating the qualifications of a
member of the House of Representatives, it is provided
that "He must be of the
full age of twenty-one years". The words "of the full age of twenty-one
years", may be contrasted with the
word "adult" in s. 41, and the contrast
suggests that there may be a difference between the two which would disappear
if "adult"
were construed to mean "of the full age of twenty-one years". This
is, to my mind, the one argument to be derived from the words
of the
Constitution in favour of considering "adult" in s. 41 as meaning something
different from "of the full age of twenty-one years" and this consideration
must be given appropriate weight.
Before assessing that weight, however, it is
proper to refer to other considerations which were urged in favour of
considering "adult"
as less precise than "of the full age of twenty-one
years". (at p248)
13. It was suggested that young people now reach maturity earlier than they
did in the past, and reference was made to reports such
as the Report of the
New South Wales Law Reform Commission on Infancy in Relation to Contracts and
Property (L.R.C. 6 (N.S.W.)) and
the Report of the Committee on the Age of
Majority in England (Cmnd. 3342) to support this suggestion. From this
starting point,
it was then argued that it was intended by s. 41 to keep up
with this social development that has taken place and that it would be
to
defeat the purpose of that section to treat
the words "adult person" as
importing a hard-and-fast age limit. I am prepared to
assume for the purposes
of argument and without
accepting the proposition as established, that young
people of today do, as a class,
reach maturity at an earlier age than did
their
parents and grandparents and that more is expected of them in the way of
social and
community responsibilities than used to be the
case. The argument
based on this assumption is, however, altogether a different matter.
The word
"adult" as I have said, did and
still has, a well-recognized legal
significance, that is, one who is no longer an infant
and in 1901 that meant
having reached the
age of twenty-one years. It is not apparent to me why that
well-known meaning should be
rejected in a constitutional provision where
it
is used as a form of limitation. The argument that an eighteen-year-old
person is
now an "adult person" is one that carries with
it some sort of
comfortable assurance of educational and social advancement between
1901 and
today which is attractive. It is necessary,
however, to consider how the
argument for a non-precise meaning for the word
"adult" would appear if the
evidence were to establish
that the maturity of those twenty-one years of age
in 1901 is now reached
only at the age of twenty-five years so that those
entitled
to vote in a State because they had reached the age of twenty-one
years
would fall outside the operation of s. 41 because they are not "adult"
in the sense of having achieved responsibility and maturity.
It is not, I
think, to be predicated that
in 1901, there was any sort of assurance that
people in the future would mature earlier
than they had in the past.
Everything was
in favour of introducing the required limitation with precision
so that it would not go
up or down as the relationship between years
and
maturity might vary. I see no reason for importing uncertainty into what
must,
in 1901, have appeared clear. It is to be observed
that in South
Australia the amendment of the Constitution to enlarge the franchise has taken
the form of substituting "eighteen" for "twenty-one" years of age and not by
adopting any imprecise
and difficult term such as maturity. This litigation
does not, at this stage, pose a problem in physiology or sociology, whatever
may be the case if "maturity" has to be defined and established. The problem
which is posed now is simply one of the construction
of a provision which has
to be applied in the daily task of making up a roll of those entitled to vote,
and in which precision is
to be expected. (at p249)
14. I turn, therefore, to consider whether I should merely by reason of the
use of the words "of the full age of twenty-one years"
in s. 34 infer that the
word "adult" in s. 41 means something different and less precise. (at p249)
15. It is not to be expected that, in any statute, words will always be used
in the same sense or that a conception will always
be defined in the one way.
A good example of the kind of difference that regularly occurs is afforded by
a comparison between ss. 30 and 41. These sections, which I have already
quoted, deal with a like subject matter but their form is different. The
former speaks of
"the qualification of electors of the more numerous House of
Parliament of the State"; the latter of a person "who has or acquires
a right
to vote at elections for the more numerous House of the Parliament of a
State". The form of words is different but the effect
is the same. (at p249)
16. As I have already indicated, I do get some assistance from the words
"adult suffrage" in s. 128. There, they mean the right of every man and woman
who is of full age to vote, and it seems to me, that, when in s. 41, a
provision had to be framed to deal with voting rights, it was quite natural to
use the word "adult" in the same sense as used
in s. 128. On the other hand,
however, in s. 34 (1) which is not dealing with suffrage but with the
qualification of members, it was also in keeping with usage to employ the
phrase
"of the full age of twenty-one years". (at p249)
17. It is for these reasons that I do not think that the word "adult" in s.
41 should be given a meaning other than its ordinary meaning simply because in
s. 34, the phrase "of the full age of twenty-one years" appears. (at p249)
18. In coming to a final conclusion, I also attach some importance to the
terms of the electoral laws of the colonies which, in
1901, became States.
The Solicitor-General of the Commonwealth, in the course of his argument, drew
our attention to these laws in
detail. (at p249)
19. Both the laws of South Australia and Victoria, The Constitution Amendment
Act, 1894 (S.A.) and the Adult Suffrage Act 1908 (Vict.), enacted to confer
the franchise upon those who had reached the
age of twenty-one years, were
referred to as laws to introduce
adult suffrage. (at p250)
20. To summarize my views, I would say that prima facie this word "adult" in
s. 41 means "of the full age of twenty-one years" and
that it bears that
meaning is a conclusion supported by s. 30 and s. 128 and that s. 34 affords
no sufficient reason for a contrary
conclusion. (at p250)
21. It is for the foregoing reasons that I construe the word "adult" in s. 41
of the Constitution as meaning "of the full age of twenty-one years". (at
p250)
WALSH J. In making provision in the Constitution for the qualification of
electors of senators and of electors of members of the House of
Representatives, the course was not adopted
of including in the Constitution
itself permanent provisions setting forth positive qualifications by which the
right to be an elector was to be determined. The
fixing of those
qualifications was left as a matter for the decision of the Parliament. But
there was a need to specify by what
means the entitlement to be an elector was
to be determined, before the Parliament provided what the qualifications were
to be.
That need was met by declaring that, until Parliament should otherwise
provide, the qualification of electors of members of the House
of
Representatives should be in each State that which was prescribed by the law
of the State as the qualification of electors of
the more numerous House of
Parliament of the State, and by making the same rule applicable to determine
the qualification of electors
of senators. The provisions of the Constitution
which dealt with this question in the manner I have stated are ss. 8, 30 and
51 (xxxvi.). In addition to those positive provisions a further provision of a
negative character was made, imposing a restriction upon
the exercise by the
Parliament of the power to determine who should be entitled to vote at
elections for either of the Houses of
the Parliament. The limitation was
imposed by s. 41 of the Constitution, which is in these terms:
"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." (at p250)
2. The cases now before the Court call for a decision as to the meaning of s.
41 and, in particular, the meaning therein of the words "adult person". That
decision will determine, also, whether the applicants
are entitled to
enrolment in accordance with s. 39B of the Commonwealth Electoral Act 1918, as
amended. The cases do not call, of
course, for a decision by the Court on the
question whether persons who have reached the age
of eighteen years or persons
who belong
to any other age group ought to be entitled to vote at elections
for the Houses of the Commonwealth
Parliament. Subject to the limitation
imposed by s. 41, it is to the Parliament that the decision of that question
has been assigned by the Constitution. Any change that may occur in community
attitudes and opinions, tending towards a reduction of the age at which the
civic responsibility
of voting at federal elections may properly be assumed by
young people, is therefore capable of being recognized by the Parliament
and
reflected in the electoral laws which it enacts. Section 41 could not present,
upon any view of its meaning, any obstacle to that course being taken by the
Parliament if it chose to take it.
(at p251)
3. Section 41 operates to prevent a person from being deprived by a law of
the Commonwealth from voting at elections for either House of the Commonwealth
Parliament if two conditions are fulfilled. The first is that that person is
an "adult person". The second is that he or she is
a person "who has or
acquires a right to vote at elections for the more numerous House of the
Parliament of a State". There has
been some discussion by commentators on the
Constitution as to the meaning of the words that I have last quoted. But for
present purposes, I assume that they are not limited so as to refer
only to a
right to vote given by a law of a State already in force when the Constitution
became operative or, alternatively, to refer only to a right given by the law
of a State which came into force before the Commonwealth
Parliament first
enacted a law dealing with the qualification of electors. I assume that in
the cases before the Court the second
condition for the operation of s. 41 is
fulfilled. So far as that second condition is concerned, the operation of s.
41 was and is capable (upon the assumptions just stated) of being affected by
changes made from time to time in the electoral laws of
a State and,
therefore, it was and is capable of having an application in one State not
identical with its application in another
State, because the conditions for
entitlement to vote at elections for the more numerous House of the Parliament
of one State may
not be the same as those laid down in another State. But I
do not accept the view that s. 41 is to be construed so as to enable the
question whether or not a person is an adult person to be determined in
accordance with the
laws in force for the time being in any particular State,
with the result that persons who reside (or, as one argument suggested,
who
are domiciled) in one State are "adult persons", whilst persons who live (or
are domiciled) in another State, but are in no way
different in any other
respect from the first-mentioned persons, are not. (at p252)
4. In one of the arguments, reliance was placed on the laws of the State of
South Australia to provide an affirmative answer to
the question whether the
applicants are adult persons. It was not suggested, I think, that this answer
could be based solely upon
the amendment made by Act No. 17 of 1971 to the
Constitution Act, 1934, as amended, of that State, by which amendment the
right to vote in elections of members of the Legislative Council and
of the
House of Assembly was conferred, subject to other requirements of the
Constitution Act, upon persons who are at least eighteen years of age. The
argument called in aid other enactments in that State and, in particular,
the
Age of Majority (Reduction) Act, 1970-1971. But I am of opinion that those
enactments cannot operate to determine, in relation
to persons within that
State, the question whether they are adult persons within the meaning of s.
41. If the State electoral law
itself could operate to make a person an adult
person within s. 41, the word "adult" in that section would serve no purpose
at all.
Section 41 requires as one of the conditions for its operation that
the person invoking it should be entitled under the electoral
laws of a State
to vote at elections for the more numerous House of the Parliament of a State.
But in addition it requires that he
or she should be an adult person. It
cannot be supposed in my opinion that if the condition of entitlement under
the State law is
fulfilled, a consequence of its fulfilment is that such a
person is within the meaning of s. 41 an adult person. (at p252)
5. But it has been submitted that by the Age of Majority (Reduction) Act
there has been conferred upon persons who are of or above
the age of eighteen
years what was described as the status of being an
adult person. The
argument, as I understand it, proceeds
to affirm that having acquired that
status, they must then be regarded
as adult persons for all purposes (with
certain specified
exceptions mentioned in the Act and its Schedule), and that
as a consequence
they come within the operation of s. 41 of the Constitution.
It is my opinion that that is not an acceptable statement of what was intended
or what was effected by the Age of Majority (Reduction)
Act. It made
important changes in what it describes as "the juristic competence or
capacity" of persons of or above the age of eighteen
years. It did not,
however, make any change relevant to these proceedings in the "status" of
those persons for voting purposes.
On the contrary, it made by s. 3 (6) an
express disclaimer of such a change. But quite apart from that provision I am
of opinion,
as I have already indicated, that
s. 41 cannot be interpreted as
using the expression "adult person" in a sense which would require
or permit
its ambit to be determined
State by State according to the laws of each State
relating to the legal capacities of those
to whom they apply or relating to
the
creation and enforcement of rights and obligations of various kinds. In
my opinion, when s.
41 is considered in conjunction with
s. 30 of the
Constitution, it should be concluded that in applying s. 41 so as to give
effect to its guarantee of a right to vote in federal elections to such of the
electors qualified to vote in the election
of members of the more numerous
House of Parliament of a State as are adult persons, the expression "adult
person" should be interpreted
as having the same meaning and operation
throughout the Commonwealth, and it should be held that the ambit of that
expression does
not vary from State to State and is not subject to expansion
or contraction as a consequence of the legislation of a particular State.
(at
p253)
6. The rejection of the view that the class of adult persons should be
identified in each State by reference to the laws of that
State does not
necessarily dispose of the possibility that a development by which persons
come to be recognized as being of full
age at an age other than the age of
twenty-one years could affect the operation of s. 41. It is suggested that
the word "adult" refers to the attainment of the age of majority, and that
this may not remain always the age
of twenty-one years but may come to be some
other age, in which event those who attain that other age may be held to be
within the
operation of the section. On this view the question whether some
age other than twenty-one years should be found to be the age of
majority is
not necessarily to be examined State by State or dependent entirely upon the
laws of a particular State. It is suggested
that the answer to the question
may be found by an examination of all the laws in force in the Commonwealth,
whether enacted by State
Parliaments or by the Commonwealth Parliament. We
were referred to a large number of enactments and it was suggested that these
indicated that throughout the Commonwealth the age of majority was no longer
to be regarded as the age of twenty-one years but should
be held to have
become eighteen years. (at p253)
7. In my opinion, there are two reasons why the foregoing solution of the
problem before the Court should not be accepted. One
is that even if the
basic premises of the argument were to be accepted, in my opinion the
conclusion cannot be sustained. There
has been no such consistent and uniform
development in the laws in force throughout the Commonwealth as to justify the
assertion
that by reason of those laws the age of eighteen years has become
the age of majority and has replaced the age of twenty-one years
as the age
which in the legal sense constitutes "full age". But my more fundamental
reason for rejecting the conclusion reached
by means of this argument that
persons of the age of eighteen years are now to be regarded as adult persons
for the purposes of s. 41 is that I do not accept the construction of the
section upon which the argument is based. (at p254)
8. I am of opinion that of the submissions presented to the Court in support
of the claims of the applicants, that which is most
attractive is the
submission that the words "adult person", used without an express reference to
a specified age, are apt to convey
a central idea of freedom from those
disabilities which are removed upon the attainment of "full age" and that the
language used
leaves scope for the application of the provision in a manner
appropriate to the circumstances which exist from time to time. But,
in my
opinion, the submission cannot be accepted. I am of opinion that the words
"adult person" in s. 41 were not used in order to convey a general idea of
majority, without reference to any specific age. I am of opinion that they
meant
when the Constitution was enacted and still mean a person who has
attained the age of twenty-one years. In reaching that conclusion I have
considered
other provisions of the Constitution that may have a bearing upon
the meaning of s. 41 and I have had regard to the electoral laws in force in
the Colonies immediately before federation and to the usage then current
of
the term "adult" when used in relation to voting rights. These are matters
which are discussed in the judgments of other members
of the Court and I feel
no need to refer to them in detail. (at p254)
9. There were a number of submissions by which interpretations of s. 41,
other than that which I have adopted, were proposed and supported. Some of
these I have already discussed. Some are, in my opinion,
shown by the reasons
of other members of the Court to be without substance and need not be examined
by me. But there are some remaining
matters to which I wish to refer. (at
p254)
10. I have said that in my opinion the persons who are to be classed as adult
persons for the purposes of s. 41 are not to be ascertained State by State. I
am of opinion, also, that it is clear that they are not to be ascertained
person by
person, by means of an examination of the individual qualities or
characteristics (regardless of the attainment of any particular
age) of each
person claiming to be entitled to the benefit of s. 41. It was not argued
that such an examination could or should be made. But it appears to me that
the need for the making of such an
examination is a necessary consequence of
the acceptance of some forms at least of the arguments put on behalf of the
applicants,
by which it was claimed that the word "adult" in s. 41 was simply
a synonym for the word "mature". However, this part of the argument, as I
understood it, stopped short of what may be
thought to have been its logical
conclusion, and it was not claimed that a person of any age, who in fact is
found to have reached
"maturity", can claim the benefit of s. 41. It was
acknowledged that a criterion of reaching a certain age must be adopted, all
persons who have reached that age being regarded
as being mature and,
therefore, as being adult persons. In this part of the submissions for the
applicants there is a departure from
the line of argument, already considered
above, according to which a judgment upon the question whether persons who
have reached
a certain age other than the age of twenty-one years are adult
persons is to be based upon developments in the laws affecting the
attainment
of full legal capacity. In the part of the argument now being considered, the
Court is asked to make a judgment that
persons of the age of eighteen years
are, as a class, to be regarded as being "mature", not according to a legal
criterion or test
of maturity, but according to the opinions held in the
community as to the age at which it may be said that in fact maturity is
reached.
In my opinion this view of the meaning and effect of s. 41 is
untenable. The learned counsel for two of the applicants proposed to adduce
expert evidence to establish that persons of eighteen
years in Australia are
mature persons and are adult persons, from a professor in the Sociology
Department at one of the universities
in Sydney. Upon the view that I take as
to the meaning of s. 41, that evidence could have no relevance to the question
which the Court has to decide and should not be admitted. (at p255)
11. In my opinion the applications made by the applicants pursuant to s. 58
of the Commonwealth Electoral Act should be dismissed.
(at p255)
GIBBS J. The applicant in each of these three cases lodged with an
electoral registrar a claim for enrolment under the Commonwealth
Electoral Act
1918-1966 and upon the rejection of that claim applied to a magistrate by way
of appeal under s. 58 (1) of the Act.
The applications have been removed into
this Court under s. 40 of the Judiciary Act. At the time the respective
claims were made
and rejected each of the applicants was a resident of South
Australia and had attained the age of eighteen years but had not attained
the
age of twenty-one years. Each had been enrolled as an elector for the House
of Assembly for the State of South Australia. The
qualifications of electors
of that House are laid down by s. 33 of the Constitution Act, 1934-1971 (S.A.)
which, since its amendment by the Constitution Act Amendment Act (No. 2)
1970-1971, which came into operation on 30th June 1972, entitles every person
who is at least eighteen
years of age to vote at elections for members of the
House of Assembly provided the other requirements of the section are met and
subject to the disqualifications set out in the section. It was not in
contest that the applicants were entitled to be enrolled
as electors under
this provision. It was further not disputed that if they had not been under
twenty-one they would have been entitled
to enrolment under the Commonwealth
Electoral Act. However, the right to be enrolled under that Act is restricted
to persons who
are not under twenty-one years of age (s. 39 (1)
) except in
the case, not here relevant, of certain members of the Defence Force
(s. 39A
(3) ) and except that "a person to whom
section forty-one of the Constitution
applies" is by s. 39B entitled to enrolment. The applicants' claims to
enrolment have been rejected on the ground that the applicants
are under
twenty-one years of age and are not persons to whom s. 41 of the Constitution
applies. (at p256)
2. Section 41 of the Constitution provides as follows:
"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." (at p256)
3. The decision of the present cases depends entirely upon the true meaning
and effect of s. 41 of the Constitution. We are not called upon to decide,
and are not entitled to consider, whether as a matter of policy young men and
women who are eighteen
years of age should be given the right to vote at
Commonwealth elections. Such questions as whether persons of the age of
eighteen
now have such civic responsibilities that it would be unfair to deny
them the franchise, and whether they are likely to possess such
experience and
discretion as would enable them to vote wisely are for others to debate. The
matter for our determination is not
whether it would be just or prudent to
extend the franchise to persons aged eighteen, but whether such persons, if
entitled to vote
at State elections, are given by s. 41 the right to vote at
Commonwealth elections. The following words of the Chief Justice in State of
Victoria v. The Commonwealth
[1971]
HCA 16; (1971)
122 CLR 353, at p 363 are entirely
apposite to the present case:
"The question is a legal question. It is to be resolved by
legal considerations alone, that is to say, by the construction
of the Constitution according to legal principle." (at p257)
4. By the combined effect of s. 30 and s. 51 (xxxvi.) of the Constitution,
the Parliament of the Commonwealth is empowered to make laws as to the
qualification of electors of members of the House of Representatives,
and the
qualifications prescribed by any such law become, by virtue of s. 8 of the
Constitution, those of electors of members of the Senate also. However, s. 41
places a restriction on this power of the Parliament. Viewed in another
light, s. 41 guarantees to those persons to whom it applies the right to vote
at elections for both Houses of the Parliament. In the present
case, it is
necessary to consider who are the persons whose right to vote is thus
guaranteed. (at p257)
5. Early distinguished commentators on the Constitution expressed views as to
s. 41 which, if correct, would be fatal to the applicants' contentions at the
very outset. Sir John Quick and Sir Robert Garran, in their
Annotated
Constitution of the Australian Commonwealth, which was written in 1901, before
the Commonwealth Parliament first exercised its power to pass a
law
establishing the franchise for Commonwealth elections, submitted (at p. 487)
that once the Commonwealth Parliament had passed
such a law, a State
Parliament would no longer be able to confer by fresh legislation any further
right of voting at Commonwealth
elections. They submitted that this
interpretation should be gathered from the section, either by construing
"acquires" as meaning
"acquires before the framing of the federal franchise"
or by construing "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". They further thought that
a person "acquires" a right
to vote within s. 41 when he individually becomes qualified to vote and not at
the time when the franchise under which he claims was enacted. Professor
Harrison Moore (Commonwealth of Australia, 1st ed. (1910), pp. 108-109)
regarded the problem of the construction of s. 41 as associated with that of
s. 30 which inter alia reads as follows:
"Until the Parliament otherwise provides, the qualificationThis section, unlike ss. 10 and 31, does not speak of the laws in force in the State "for the time being", and Professor Harrison Moore thought it reasonable to suppose that the qualification referred to in s. 30 was that existing at the establishment of the Commonwealth. He then expressed his views as to s. 41 as follows:
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."
"If the true construction of s. 30 be the 'law in force inHowever, he disagreed with the view of Quick and Garran that persons who become entitled to vote in State elections after the passing of the Commonwealth law establishing a franchise are not within s. 41 even if the State law was passed before the Commonwealth law. (at p258)
each State at the establishment of the Commonwealth', then
under s. 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, s. 30 means laws enacted
by the State Parliament at any time before the establishment
of a federal franchise by the Commonwealth Parliament, s. 41
presents some difficulties of construction. 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."
6. Since the Commonwealth Parliament has exercised its power to prescribe by
legislation the qualification of electors of members
of the House of
Representatives, the doubts raised by Professor Harrison Moore as to the
meaning of s. 30 have become only of academic interest, and it does not seem
necessary to attempt to resolve them for the purpose of ascertaining
the
meaning of s. 41. In my opinion the latter section speaks at the date of the
Constitution and refers to a right to vote which any adult person then has or
subsequently acquires. The word "acquires" is not subject to any
express
qualification as regards time or otherwise, and can only be read as meaning
"acquires under a law in force at the date of
the establishment of the
Commonwealth" or "acquires before the framing of the federal franchise" if the
context indicates that it
should be impliedly qualified in that way. It may
be argued that the words "prevented by any law of the Commonwealth from
voting"
do carry the implication that if it were not for the passing of the
Commonwealth law in question, the person concerned would have
been able to
vote at Commonwealth elections, or, in other words, that s. 41 only
invalidates a law which disqualifies from voting at Commonwealth elections
persons who at the date when the law was passed were
qualified to vote at
them. On the other hand, a law which establishes a franchise might be said to
have the continuing operation
of preventing from voting all those persons to
whom the franchise is not extended. I find it impossible to accept one of the
theories
suggested by Professor Harrison Moore, that s. 41 only applies to
persons whose right to vote at State elections was acquired under a law passed
before the establishment of the Commonwealth,
for on that theory the use of
the word "adult" in s. 41 would, as I shall later explain, have been quite
unnecessary. The view of Quick and Garran, that s. 41 assures the right to
vote at Commonwealth elections only to persons whose right to vote at State
elections was acquired before the
framing of a franchise by the Commonwealth
Parliament, although perhaps deriving some support from the use of
"prevented", is far
from clearly correct, but I find it unnecessary to express
a final opinion upon it. On any view the applicants can only succeed
if they
are "adult" persons within s. 41, and, for the reasons that I shall give, I
consider that they do not answer that description. (at p259)
7. The main arguments advanced in support of the contention that the
applicants are "adult" persons within s. 41 may be broadly summarized as
follows. First, it was submitted that the word "adult" has no technical legal
meaning and does not
denote any particular age but simply means "mature", and
that a person is within the protection afforded by s. 41 if he has reached
maturity. However, it was not suggested that the Constitution intended that an
inquiry as to maturity was to be conducted person by person; rather the
question was said to be whether persons
aged eighteen as a class may be
regarded as mature. It was submitted that a recognition that persons of
eighteen are mature might
be found in the statutory provisions of the
Commonwealth and the States and in the attitude of the community generally,
and that
regard should be had to evidence which it was sought to call which
was intended to show that persons of eighteen under modern conditions
are as a
class mature. Alternatively, it was submitted that "adult" means of full age
and that the question whether the applicants
are "adult" persons in this sense
must be decided by reference to the law of South Australia, under which, it
was said, persons eighteen
years of age are now treated as having full legal
capacity. A third submission was that "adult" in s. 41 means "male and
female" and has no connotation of age. This argument is quite insupportable;
"adult" connotes age or maturity of
development but not sex. Moreover, the
word "person" is undoubtedly capable of including members of either sex - if
judicial authority
is wanted for so obvious a statement, Edwards v.
Attorney-General (Canada) (1930) AC 124 provides it - and in the context of
s. 41 did not need any qualifying adjective to make it refer to women as well
as to men; if "adult" meant "male and female" it would add
nothing to the
section. (at p260)
8. The ordinary meaning of the adjective "adult" according to the Oxford
English Dictionary is "grown up; having reached the age
of maturity". It is
apparent from this definition that the word is an ambiguous one, since a
person may be regarded as "grown up"
because of his physical development or
intellectual maturity or because he has reached a particular age. At the date
when the Constitution took effect, and indeed for many years thereafter,
"adult" was commonly used as meaning that the person to whom it referred had
attained
the age of twenty-one. Similarly the expression "adult suffrage" was
employed by those who wrote and spoke of the franchise in the
colonies and the
States shortly before and after federation to describe a right to vote which
could be exercised by any man or woman
of the age of twenty-one. As an
illustration of this usage, and also as a statement of the state of things
existing when the Constitution took effect, and in relation to which s. 41 was
enacted, it is convenient to refer to the summary of the qualifications of
electors of the more numerous Houses of Parliament
of the several States and
of New Zealand given by Quick and Garran in their Annotated Constitution of
the Australian Commonwealth, at pp. 469-470. At federation in all States men
aged twenty-one, who were British subjects and satisfied
a residential or a
property qualification (or in some cases both a residential and a property
qualification) were entitled to vote,
subject to miscellaneous
disqualifications that varied from State to State. In addition, in South
Australia and Western Australia
the franchise had been extended to women aged
twenty-one. In some States plural voting was allowed. In New Zealand male
and female
inhabitants of the age of twenty-one years who satisfied a
residential qualification were entitled to vote. The learned authors
summed
up the position in these words (at p. 470):
"These different franchises may be shortly described asA similar statement was given by Harrison Moore, op. cit., at p. 107, and he also used the words "adult suffrage" to describe the franchises of South Australia and Western Australia. It is unnecessary to multiply examples of this usage, but it may be remarked that the words "adult suffrage" in s. 128 of the Constitution were clearly used in the same sense. It was suggested on behalf of the applicants that if "adult suffrage" in s. 128 meant a right to vote exercisable by any man or woman of twenty-one, a State, by extending its franchise to persons a few months younger than twenty-one, could have avoided the effect of the third paragraph of that section which provides that until the qualification of electors becomes uniform throughout the Commonwealth only one-half of the electors voting at a referendum shall be counted "in any State in which adult suffrage prevails". I should have thought that if all adult persons were entitled to vote in a State, "adult suffrage" would "prevail" there notwithstanding that some persons not adult might vote as well, but in any case the remote possibility that a State might have endeavoured to evade the effect of this provision does not assist to determine the meaning of the words "adult suffrage", for a similar endeavour could have been made whatever their meaning. (at p261)
follows: New South Wales and Victoria, one man one vote.
Queensland, manhood suffrage, with plural votes for property.
South Australia and New Zealand, one adult one vote. Western
Australia, adult suffrage, with plural votes for property.
Tasmania, a small property or income qualification, with plural
votes for property."
9. In my opinion it cannot be doubted that the phrase "adult person" in s. 41
was intended to refer to a person who had attained the age of twenty-one.
This, in my opinion, was the natural meaning of the phrase
in its context. As
I have already pointed out, s. 41 at once defines a class whose right to vote
at Commonwealth elections is guaranteed and imposes a restriction on the power
of the
Commonwealth Parliament to prescribe a franchise. It is apparent that
by the use of the word "adult" in s. 41 it was intended to narrow the class of
persons whose right to vote at elections for either House of the Commonwealth
Parliament was
guaranteed. If the protection of s. 41 had been afforded only
to persons who had at the date of the Constitution a right to vote at State
elections, it would have been unnecessary to add the qualification that they
must be "adult" persons, for
no person below the age of twenty-one then had
such a right to vote. However, since the section applies also to persons who
subsequently
acquire a right to vote, and since, even on the restrictive view
of the section taken by Quick and Garran, such a right might be
acquired under
a State law passed after the date of the Constitution, if the word "adult" had
not been included, any person, however young, to whom a State extended its
franchise (at least before the
Commonwealth first established a franchise)
would have had the right to vote at Commonwealth elections. The obvious
purpose of the
framers of the Constitution in using the words "adult person"
was to prevent this result. It is inconceivable that in a provision of this
kind it was intended
that the existence of the right and the extent of the
restriction on Commonwealth power should be decided by so vague a criterion
as
the maturity of a person or class of persons. The section contains no
indication as to how a court might gauge the degree of
physical or mental
maturity of persons of a certain age, or in what manner it might be
ascertained at what age, below the age of
majority, persons were recognized by
the community as being adult, or how, if different sections of the community
held conflicting
views on this point, as would not be surprising, it should be
decided which of those views should prevail. The difficulty that would
result
from the adoption of so uncertain a test provides the strongest reason for
regarding the word "adult" in s. 41 as referring only to a person who has
attained a particular age, which, in the absence of any indication to the
contrary, must be
the age at which, at the date of the Constitution, persons
attained their majority, that is, the age of twenty-one. It therefore clearly
appears that it was not intended that persons
under the age of twenty-one
should be guaranteed a right to vote at Commonwealth elections,
notwithstanding that a State might enlarge
its franchise so as to include
them. Of course, s. 41 does not prevent the Commonwealth Parliament from
extending the franchise to persons under twenty-one, but whether it does so or
not is a matter for its decision. (at p262)
10. I accordingly reject the view that the phrase "adult person" in s. 41
means a person who is mature, whether maturity is to be tested by physical or
intellectual standards or by the view which the community
generally takes of
the maturity of persons of a particular age. It follows that evidence
designed to show that persons of eighteen
are, or are generally regarded as
being, mature is irrelevant and should not be admitted. (at p262)
11. It then becomes necessary to consider the alternative argument advanced
in support of the applicants' case. For the purposes
of this submission it
was conceded that "adult" in s. 41 means "of full age" and that in 1901 a
person below the age of twenty-one was not of full age. However, it was
submitted that the
term "adult" in s. 41 did not simply mean "of the age of
twenty-one" and that the essential idea which it connoted was that the age of
majority had been
attained. It was then said that once that age was lowered,
however unlikely that development may have seemed in 1901, the term "adult"
would embrace those persons who were then of full age, although below
twenty-one. Finally, the submission was that according to
the law of South
Australia persons aged eighteen are of full age and are therefore "adult
persons" within s. 41, because that section looks to the law of the State in
which the elector is enrolled, or alternatively to the law of his domicile,
to
determine whether or not he is an adult person. (at p263)
12. The rule of the common law which, during mediaeval times, fixed the age
of majority at twenty-one remained unaltered for many
centuries. It was still
in force in each of the Australian colonies when the Commonwealth was
established. The period of twenty-one
years thus settled as the duration of
infancy was, however, as Blackstone said, "merely arbitrary, and juris
positivi" (Blackstone,
Commentaries, book 1, p. 464) and thus, although
hallowed by time, not insusceptible of change. During the second half of the
twentieth
century in some quarters it began to be thought that the age of full
legal capacity ought to be reduced. By the Family Law Reform
Act 1969 (U.K.),
s. 1(1), which took effect on 1st January 1970, it was provided that a person
becomes of full age on attaining the
age of eighteen. Similar legislation has
been passed in South Australia and in New South Wales, and in those States a
person of
or above the age of eighteen is now of full age and no longer
legally an infant - see Age of Majority (Reduction) Act, 1970-1971
(S.A.), s.
3(1), and Minors (Property and Contracts) Act, 1970 (N.S.W.), ss. 8, 9, which
came into operation respectively on 15th April 1971 and 1st July 1971. Since
this case was argued, the Parliament of Western
Australia has passed a similar
statute (the Age of Majority Act, 1972) which has not yet been proclaimed. In
Tasmania, the Age of
Majority Bill, which not only lowers the age of majority
to eighteen
but also gives the franchise to persons of that age has been
passed in the lower house and is awaiting consideration in the Legislative
Council. Historically, although the right to vote does
not necessarily
accompany the attainment of majority, it has not usually
been extended to
infants, except in special cases such as
those of men in the services. In the
United Kingdom, the voting age has
now been fixed at eighteen - Representation
of the People
Act 1969, s. 1(1). The right to vote at State elections has been
conferred
on persons aged eighteen in Western Australia (Electoral
Act
Amendment Act (No. 2), 1970 (W.A.)) as well as in South Australia, and
in New
South Wales a statute to the same effect, the Parliamentary
Electorates and
Elections (Amendment) Act, 1970 (N.S.W.) has been
passed but not proclaimed.
In Victoria and in Queensland, although
some laws have been passed increasing
in certain respects the
capacity of persons below the age of twenty-one,
neither the age of
majority, nor the age at which the franchise may be
exercised,
has been reduced. In argument, some reference was also made to
Commonwealth
legislation and in particular to the National Service
Act 1951
(Cth) (as amended) under which persons aged twenty (or, in certain
circumstances, nineteen) are liable to national service.
However, the fact
that persons under the age of twenty-one have responsibilities
of that kind,
or that, as in Victoria and Queensland,
they have been given capacity to do
some legal acts of which they were formerly
incapable, does not mean that the
law treats them
as of full age. At no stage in the history of the common law
have infants been
devoid of all capacity or free from all responsibility.
At
the time of the first settlement of Australia, for instance, a boy of
fourteen
might marry, make a will or be put to death for
a capital offence, but he was
none the less an infant (Blackstone, Commentaries,
book 1, 463-466; book 2,
497). The distinction
between infancy on the one hand and full age on the
other is that a person having
the latter status, if not otherwise under a
disability,
has the fullest possible capacity to do legal acts and exercise
legal rights;
generally speaking, he has no incapacity or disability
which
results from age alone. It is beyond question that in Victoria and
Queensland, and in Western Australia and Tasmania also
until the laws proposed
in those States take effect, persons still remain
infants until they attain
the age of twenty-one, although
in South Australia and New South Wales the age
of majority is now eighteen.
Further, it is impossible to find in the law of
the
Commonwealth any recognition that persons under the age of twenty-one are
of
full age. (at p264)
13. If the contention of the applicants that the question whether they are
"adult" persons within s. 41 is to be decided by reference
to the law of South
Australia were correct, the provisions of s. 3(6) of the Age of Majority
(Reduction) Act, 1970-1971 (S.A.) would
present them with an insurmountable
difficulty. That section reads as follows:
"This section shall not be construed as conferring anyThe insertion in this sub-section of the words "or the Commonwealth" shows that the legislature of South Australia intended that a person of the age of eighteen, although of full age for most purposes of the law of that State, should not acquire a status that would entitle him to vote at Commonwealth elections. The fact that a person aged eighteen is of full age under South Australian law could only be relevant to his right to vote at Commonwealth elections if he thereby became an "adult person" within s. 41. The South Australian legislature therefore obviously intended that the Age of Majority (Reduction) Act 1970-1971 (S.A.) should not confer on persons under twenty-one a status that would make them "adult persons" for the purposes of s. 41. It was submitted that the State legislature cannot prevent s. 41 from having its full effect in the situation created by the South Australian Act, and that the provisions of s. 3(6) are ineffectual so far as they refer to Commonwealth voting rights. I cannot accept this argument. If s. 41 requires that the question whether the applicants are "adult" persons be answered by inquiring whether they are of full age according to the law of South Australia, it is not permissible, in answering that question, to have regard to part only of that law; if the whole of the State law is regarded, it is seen that it does not confer on the applicants the status of persons of full age, in so far as that status is necessary for the exercise of voting rights at Commonwealth elections. (at p265)
status necessary for the exercise of any electoral or voting rights
in this State or the Commonwealth."
14. However, it is not necessary to base a decision in this case on that
narrow ground alone, because, in my opinion, even if the
applicants were
regarded as of full age for all purposes by the law of South Australia, they
would nevertheless not be "adult" persons
within the meaning of s. 41. I
agree that as a general rule it is right to say that, although words used in
the Constitution should bear the meaning which they had at the time of
federation, which meaning does not change, their denotation must extend as
new
concepts develop: cf. Lansell v. Lansell [1964] HCA 42; (1964) 110 CLR 353, at pp 366, 369
and 370 . When, however, the Constitution itself contains an indication that
it was intended that a word should be understood in a particular sense, and in
that sense alone,
effect must of course be given to the intention thus
revealed. I have already pointed out that the whole purpose of including the
word "adult" in s. 41 was to ensure that a State legislature should not be
able, by lowering the age at which the State franchise was granted, to confer
a right to vote at Commonwealth elections on persons under the age of
twenty-one. It would be quite inconsistent with this purpose
to leave to
State law the determination of the question who is an "adult person" for the
purposes of s. 41. Moreover, the words of such a provision as s. 41 must have
a fixed meaning throughout the Commonwealth, and it cannot be supposed that it
was intended that a person of a given age
might be an "adult person" within
the section if he lived in one State, but not if he lived in another. In my
opinion the intention
revealed in s. 41 is that the words "adult person"
should denote persons of the age of twenty-one, and that this denotation
should not be extended
to include persons below that age who might in future
be treated by State law as of full age. (at p266)
15. It remains to notice a subsidiary argument advanced on behalf of the
applicants. Section 34 of the Constitution states that, until the Parliament
otherwise provides, a member of the House of Representatives must, inter alia,
be "of the full
age of twenty-one years". It was submitted that the fact that
the words "adult person", instead of "person of the full age of twenty-one
years", were used in s. 41 indicates that it was intended that the former
words should have a different meaning from the latter. Although, in
construing a
statute, there is a presumption that the draftsman will use the
same or similar language throughout when meaning the same thing,
and that
where different words are used a change of meaning is intended, the
presumption is of no great weight, for the variation
in language may be
accounted for by the alterations and additions from various hands which Acts
undergo in their process through
Parliament, as well as by other circumstances
- Maxwell on Interpretation of Statutes, 12th ed., (1969), at p. 286; and see
also
Commissioner of Taxes (Vict.) v. Lennon [1921] HCA 44; (1921) 29 CLR 579, at p 590 . As
at the date of the Constitution the expressions "adult person" and "person of
the full age of twenty-one years" were regarded as identical in meaning, and
the difference
between the wording of the two sections must have appeared
insignificant, but in any case any slight presumption that might arise
in the
interpretation of s. 41 by reason of the variation in language is clearly
displaced by the considerations which I have already discussed. (at p266)
16. It follows that in my opinion the applicants are not entitled to be
enrolled under the Commonwealth Electoral Act and that their
claims were
rightly rejected. The applications, which have been removed into this Court,
should accordingly be dismissed.
(at p266)
STEPHEN J. The extent of the franchise in a democracy is a matter of
fundamental importance determining, as it does, the right
to vote, described
by Isaacs J. in Judd v. McKeon [1926] HCA 33; (1926) 38 CLR 380, at p 385 , as a political
right of the highest
nature. The
franchise for federal elections could, no
doubt,
have been expressly prescribed in the Constitution itself, as in the
Swiss Constitution of 1874; instead federal Parliament was, by the interaction
of ss. 8, 30 and 51(xxxvi.) of the Constitution, empowered itself to legislate
with respect to the qualification of electors of members of both Houses. This
power it exercised
in 1902 and the principal features of that legislation have
since remained unaltered; one vote only, free of property qualification,
being
granted to each male and female resident British subject who has attained the
age of twenty-one. (at p267)
2. In many countries the franchise is not now restricted to those over the
age of twenty-one years, a minimum age of eighteen or
twenty being common:
see C.J. Puplick, Politics, vol. VI(2), November 1971, pp. 188-189. It is now
no longer so restricted in all
the constituent States of the Commonwealth; in
1971, the Constitution Act of South Australia was amended so as to extend the
franchise in State elections to those of eighteen years or over and the
resultant
disparity between State and federal franchises has provided the
occasion for the present applications which have been removed into
this Court
for determination. (at p267)
3. At Federation the franchises for the lower Houses of the several
federating colonies were by no means uniform even in basic principles;
male
suffrage only, property qualifications and plural voting were features of some
but not of others. The need for a franchise
for federal elections was met,
first, by the interim measures contained in s. 30; secondly, by conferring
upon federal Parliament
the power to create a new federal franchise; lastly,
by the terms of s. 41, which reads:
"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." (at p267)
4. The three applicants in these present applications claim to be persons
having the benefit of s. 41, and, accordingly, entitled
to enrolment and to
vote at federal elections by virtue of s. 39B of the current Commonwealth
Electoral Act, which confers such entitlement
upon those to whom s. 41 of the
Constitution applies. (at p267)
5. Whether the applicants are so entitled depends exclusively upon the
meaning of s. 41, which is a section presenting a number of difficulties in
its interpretation. For present purposes, but without so deciding, I
assume,
in favour of the applicants, that it applies to any "adult person" who at any
time acquires, by amendment of State electoral
legislation, a right to vote at
relevant State elections. Reference to Quick and Garran's Annotated
Constitution of the Australian Commonwealth (1901), Harrison Moore's
Commonwealth of Australia, and Nicholas' The Australian Constitution (1948)
will indicate possible alternative interpretations. (at p267)
6. On this assumption the question is whether each applicant is an "adult
person" within s. 41; each applicant has now acquired "a right to vote at
elections for the more numerous House of the Parliament" of South Australia
and, if an "adult person" within that section, will be entitled to enrolment
and to vote at federal elections. (at p268)
7. If "adult person" means a person who has attained twenty-one years of age,
the applicants fail. On their behalf it is contended
that it has no such
meaning but, on the contrary, refers to the possession of a quality of
maturity now possessed by those of the
applicants' age or to the attaining of
a recognised age of maturity, which may alter as community standards change,
or to a status
of full age, capable of being conferred by State legislation.
(at p268)
8. I have concluded that the phrase is no more than descriptive of those
persons who have attained twenty-one years of age; on this
view there can be
no question of any alteration, with the passing of time, either in its meaning
or in the class of persons falling
within its description. This is a result
which I find in no way surprising or inconvenient in view of the essential
nature of s. 41. Before expressing shortly my reasons for concluding that
"adult person" refers simply to the attaining of the age of twenty-one,
I
state what I regard as the nature and function of s. 41. (at p268)
9. The section may be viewed from two aspects, as a restraint upon
Commonwealth legislative power or as a Constitutional guarantee;
I prefer the
latter view, regarding it as ensuring that those State electors to whom it
refers will not be excluded from any federal
franchise which the federal
Parliament may enact. It guarantees an entitlement to the federal franchise
for those State-enfranchised
electors who fall within its terms. So regarded
there can be no place, in its interpretation, for the well-established
doctrine
that the import or meaning of a Constitutional grant of legislative
power or of an immunity from legislative interference, when "expressed
in
general propositions wide enough to be capable of flexible application to
changing circumstances" - per Dixon J. in Australian
National Airways Pty.
Ltd. v. The Commonwealth [1945] HCA 41; (1945) 71 CLR 29, at p 81 - may "only be appreciated
when considered,
as the years
go on, in relation to the vicissitudes of fact
which from time to time emerge": James v. The Commonwealth [1936] HCA
32; (1936) 55 CLR 1,
at p
43 . On the contrary its function would suggest that it will have a
constant operation so far as concerns
the character of the class
in whose
favour it guarantees a right to the federal franchise. (at p268)
10. There are a number of considerations which have led me to conclude that
"adult person" describes a person who has attained twenty-one
years of age.
The ordinary legal meaning of "adult", employed as a noun, was, at Federation,
and had for centuries been, that of
a person who had ceased to be an infant
and had attained full age by attaining the age of twenty-one years. Although
it was argued
that when used as an adjective a word may well have a wider
meaning than when used as a noun, this is not so when "adult" is used
as an
adjective to qualify the noun "person". When "adult" is used as a noun, there
is implicit in that use the notion that it is
of a person that it is employed;
reference to an "adult" has, I think, no different meaning than has reference
to an "adult person".
"Adult", as a noun, was, at Federation, in common use
as meaning the condition of having attained the age of twenty-one and was
used
in contradistinction to "infant", although standard dictionaries then, as now,
gave other meanings to the word in its non-legal
sense. Accordingly, although
by no means conclusive of the matter, it does appear that a quite acceptable
meaning of "adult" in
the Constitution is that which involves reference to the
attaining of the age of twenty-one years. (at p269)
11. Secondly, the context of s. 41 supports this meaning of "having attained
the age of twenty-one". Section 41 forms but one part of the group of
sections which together went to make up the pattern of the federal franchise.
Of these, s. 30 played the initial role; it ensured that initially the
existing colonial franchises applicable to the more numerous House of
Parliament
of each colony should apply. The then existing divergencies in
those existing franchises would thus be reflected in the franchise
for the
federal Parliament until it enacted a federal franchise. When that occurred,
s. 41 came into play and those divergencies would continue to operate to the
extent to which any State franchise was more liberal than
the enacted federal
franchise. All those colonial franchises were ones conferring suffrage only
upon persons who had attained twenty-one
years of age; they diverged in a
number of other respects but were uniform on this point. Thus, when s. 41
came to confer upon State-enfranchised electors a continuing constitutional
right to the federal franchise, there was only one common
factor in existence,
that of having attained twenty-one years of age, and in employing the words
"adult person", it was, I think,
this factor which was being referred to, the
other, divergent factors being caught up by the reference to the right to vote
at State
elections. (at p269)
12. Thirdly, the terms of s. 128 aid in the interpretation of s. 41. Of the
divergent colonial franchises to which I have referred the most striking
difference was between, on the one hand, the two
western colonies, which had
granted the franchise to women as well as men, and the four eastern colonies,
which retained male suffrage.
Should a referendum require to be conducted
before a uniform federal franchise was in existence, this would involve
submission of
the proposed law "to the electors qualified to vote for the
election of members of the House of Representatives". In the two western
States, as they became on Federation, because women as well as men had votes
by reason of the operation of s. 41, their populations would have twice the
voting power, on a referendum, of like populations in the eastern States. The
third paragraph
of s. 128 accordingly provided that in such an event only one
half of the electors voting on a referendum should be counted "in any State in
which adult suffrage prevails". (at p270)
13. This reference to "adult suffrage" provides an instance of the use of the
adjective "adult", in a provision of the Constitution closely related to s.
41, to describe the suffrage situation existing in the two western States,
where men and women over the age of twenty-one had the franchise,
that being
the situation which made it necessary to have recourse to the particular
solution adopted of counting one half only of
those electors. Moreover, this
most manifest of all the divergencies in colonial franchises at Federation
provided the most striking
field in which s. 41 might operate, preserving for
the women electors of those western States the franchise in federal elections
which they had gained
in State elections. But only those women over the age
of twenty-one had gained that right; it was therefore natural enough for s. 41
to be limited in like fashion by the use of the adjective "adult"; other
existing divergencies, arising from absence of property
qualifications or from
varying criteria for disqualification, would, at the same time, also be
provided for by s. 41, unhampered by the requirement that the persons entitled
to the benefit of s. 41 should be over the age of twenty-one. (at p270)
14. A fourth factor leading me to my conclusion is the wealth of published
Australian material of about the time of Federation,
in the form of works of
constitutional commentators, debates in colonial and State legislatures and
enactments of those legislatures,
all concerned with questions of the
electoral franchise and in which reference is made to "adult suffrage". The
term was used as
descriptive of a right to vote conferred upon men and women
who had attained the age of twenty-one years. It is clear that, together
with
"manhood suffrage" and "female suffrage", the term, used in this sense, was
common currency. It would, in these circumstances,
be strange indeed to find
"adult" used in some different sense, albeit as an adjective, in s. 41,
concerned as it is with this very topic of suffrage and the right to the
franchise. (at p271)
15. Finally, if "adult" in s. 41 is to be given some meaning other than that
of having attained the age of twenty-one years, it is likely to be a meaning
which, used
in a Constitution to secure important political rights to the
citizens of federating colonies, was both certain and uniform throughout the
Commonwealth.
It may be objected that other phrases employed in the
Constitution have proved difficult to describe as possessing certainty of
meaning but "adult person" is not concerned with any definition of fields
of
legislative power, it deals with no broad concepts of freedom; there is no
reason why it should involve any obscurity of language
such as is perhaps
inherent in other parts of the Constitution. On the contrary it is in subject
matter such as s. 41 that certainty of expression may be anticipated, as may
Commonwealth-wide uniformity of meaning; the provisions of s. 128 disclose the
concern felt lest adult suffrage in some States should lead to distortion of
voting strengths. A meaning of "adult"
which would enable a particular State,
by appropriate State legislation, to enfranchise large numbers of persons
under the age of
twenty-one and, by the operation of s. 41, confer upon them
the federal franchise, thus distorting voting strengths in referenda, is one
not lightly to be attributed to the
framers of the Constitution. Particularly
is this so in the light of those provisions of s. 128 which reveal both their
appreciation of the possibility of s. 41 operating in this way and their care
to avoid such a possibility. The state of the various colonial franchises at
Federation left
open only two possible means whereby a major distortion of
voting strengths might occur; the one was safeguarded against by s. 128, the
other, the granting of voting rights in a particular State to those under
twenty-one, could readily be prevented by the imposition
of a minimum age
qualification in s. 41. I take the view that this was what was achieved by the
use in s. 41 of the phrase "adult person". The applicants' contentions lead,
on the other hand, to the unlikely conclusion that any such safeguard
was
either overlooked or deliberately omitted. (at p271)
16. The alternative meanings of "adult person" urged upon us appear to me to
lack certainty of meaning and uniformity of application
throughout the
Commonwealth; this in itself tells against the view that any one of such
meanings was that intended by the words used
in the section; "maturity" is a
quite indefinite quality, involving distinct intellectual and physical, and no
doubt also psychological,
criteria not all of which will necessarily apply
with the same result to any one person and the application of which to any one
person
will involve subjective assessment unaided by predetermined standards.
Any generally accepted "age of maturity" ascertained by current
standards of
the community suffers from a similar absence of precision, although to a
lesser degree. To the extent to which community
acceptance of such a standard
is capable of being affected by the conferring, by State legislation, of
particular rights and obligations
upon persons under the age of twenty-one, it
will be unlikely to be the same throughout the Commonwealth. (at p272)
17. The alternative view that "adult" means "of full age" also suffers from
both the above defects. If "full age" depends upon
the existing legislation
of each State at any given time, uniformity of meaning is at an end. As to
certainty, it was urged that
a status of adulthood was something which could
be discerned from the state of the legislation in a particular State at any
given
time. This I doubt; statutes commonly confer capacity at various ages
in respect of various subject matters. Even when they are
as all-embracing as
is the South Australian Age of Majority (Reduction) Act 1970-1971 they are
likely to contain qualifications which
suggest that they are concerned with
declaring persons to be of full age for specified purposes rather than with
creating a status
of being of full age; sub-s. (6) of s. 3 of the South
Australian Act is a clear instance of this. (at p272)
18. It is for these reasons that I consider that s. 41 confers rights only
upon those who have attained the age of twenty-one years.
(at p272)
19. It was said on behalf of the applicants that the terms of s. 34 of the
Constitution, dealing with the qualification of members of the House of
Representatives, supported the contention that "adult" did not bear the
meaning which I give to it. That section refers specifically to a member
being "of the full age of twenty-one years" and the contrast
which this
language provides with that in s. 41 is certainly marked. However, having
regard to the different subject matter being dealt with, this consideration is
of reduced weight
and is, in my view, far outweighed by the other matters to
which I have already referred. (at p272)
20. Concluding as I do that "adult person" in s. 41 means a person who has
attained the age of twenty-one years, it is unnecessary for me to consider
further the detailed submissions
made on behalf of the applicants concerning
the various other meanings, to which I have already referred in passing, and
which they
seek to attribute to the phrase "adult person"; nor, on this view,
can the South Australian legislation dealing with the juristic
competence and
capacity of those who attain the age of eighteen have any bearing on the
present cases. (at p273)
21. I would dismiss each of these applications. (at p273)
ORDER
Applications dismissed with costs.