King v Jones

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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".

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.

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.

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 [1] sufficiently illustrates the type of case to which he referred.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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:

(1) Subject to this section, a person of or above the age 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.

The 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:

(6) This section shall not be construed as conferring any status necessary for the exercise of any electoral or voting rights in this State or the Commonwealth.

It 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, presumaby 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.

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.

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.

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.

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.

For all these reasons, each of the applications should, in my opinion, be dismissed.

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.

In my opinion each of the present proceedings must fail.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 half 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.

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:

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

The 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.

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".

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.

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.

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.

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".

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.

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.

Both the laws of South Australia and Victoria, The Constitution Amendment Act, 1894 SA 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.

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.

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".

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

In my opinion the applications made by the applicants pursuant to s. 58 of the Commonwealth Electoral Act should be dismissed.

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 SA 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.

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.

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 [1] 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. 1. (1971) 122 C.L.R. 353, at p. 363.

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.

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 qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State. This 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: If the true construction of s. 30 be the "law in force in 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. However, 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.

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.

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) [1] 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.

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 as 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. A 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.

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.

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.

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.

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 UK, 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 SA, s. 3 (1), and Minors (Property and Contracts) Act, 1970 NSW, 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 WA) 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 NSW 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.

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 SA would present them with an insurmountable difficulty. That section reads as follows:

This section shall not be construed as conferring any status necessary for the exercise of any electoral or voting rights in this State or the Commonwealth. The 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 SA 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.

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 [1] . 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.

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 [1] . 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.

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.

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 [2] , 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.

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 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.

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.

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.

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.

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.

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.

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 [1] - 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 [2] . 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.

1. (1945) 71 C.L.R. 29, at p. 81. 2. (1936) 55 C.L.R. 1, at p. 43.

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.

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.

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".

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.

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.

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.

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.

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.

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.

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.

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.