King v Jones

King v Jones - [1972] HCA 44 - HCA 1972 case summary — Zoe

[17]

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.

[18]

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.

[20]

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.

[21]

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.

[33]

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.

[61]

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.

[73]

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.

[75]

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.

[80]

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.

[90]

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.

[94]

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.

[97]

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.

[119]

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.

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Judgment (124 paragraphs)

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Cases Cited (1)