Houses of Parliament, and appointment by the Governor with the advice of the Executive Council. In a case where the choice ought to be made by both Houses of Parliament it is quite clear that this Court could not command those Houses to meet and choose a senator, and it would be immaterial whether a writ had or had not been issued by the Governor for holding a popular election. It is equally clear that the Governor could not be commanded to do an act which he can only do with the advice of the Executive Council. As, therefore, this Court would have no authority to correct by mandamus a mistake of one kind as to the mode of choice, it seems clear that it was not intended to have authority to interfere by mandamus in such matters at all.

Apart from these considerations we think that a mandamus will not lie to the Governor of a State to compel him to do an act in his capacity of Governor. There is, of course, no British precedent for such a writ. Reference was made in argument to the cases in which it has been held that an action will lie against a Colonial Governor for wrongful acts done by him. But it by no means follows that, because a Governor is liable to an action for a wrongful act done by him to the prejudice of an individual, he is liable to be commanded by mandamus to repair an omission to do a lawful act.

It is settled law that a mandamus will not lie against an officer of the Crown to compel him to do an act which he ought to do as agent for the Crown, unless he also owes a separate duty to the individual seeking the remedy. We do not think that the Governor of a State in the issuing of a writ for the election of senators is acting as agent for the Sovereign in this sense, since the duty imposed by the Constitution is imposed by Statute law and not by delegation from the Sovereign himself. But, as already pointed out, it is a duty cast upon him as head of the State. And the same reasons which prevent a Court of law from ordering the Sovereign to perform a constitutional duty are applicable to a case where it is alleged that the constitutional head of a State has by his omission failed in the performance of a duty imposed on him as such head of the State.

In our opinion the Governor of a State is not, so far as regards the matter now in question, an officer of the Commonwealth within the meaning of the section. Nor do we think that the Judiciary Act has enlarged the jurisdiction of the Court in this respect.

"For these reasons we hold that the application fails. We refrain from expressing any opinion upon the other important and difficult question which the applicant desires to have decided. It seems to be clear that the question whether there is or is not now a vacancy in the representation of South Australia in the Senate is one of the questions to be decided by the Senate under the Constitution, section 47' unless the Parliament otherwise provides' Parliament can, no doubt, confer authority to decide such a question upon this Court, whether as a Court of Disputed Returns or otherwise. But until the question is regularly raised for decision we reserve our opinion upon it": The King v. The Governor of the State of South Australia, (1907) 4 C.L.R., at pp. 1506-1513.

Subsequently on a petition to the Senate, removed into the High Court as the Court of Disputed Returns under section 2 of the Disputed Elections and Qualifications Act 1907, it was held, that the vacancy existing after the declaration by the Court of Disputed Returns was not a vacancy arising in the place of a senator before the expiration of his term of office within the meaning of section 15 of the Constitution, and, therefore, the choice or election of a Senator by the State Parliament was null and void: Vardon r. O'Loughlin, 5 C.L.R., 201.

Qualifications of senator.

16 The qualifications of a senator shall be the same as those of a member of the House of Representatives

§ 31. "QUALIFICATIONS OF A SENATOR.”

LEGISLATION.

COMMONWEALTH FRANCHISE ACT 1902.

COMMONWEALTH ELECTORAL ACT 1902-11, SECTIONS 95, 96, 206, (a). COMMONWEALTH ELECTORAL ACT 1918, SECTIONS 39, 69, 70, 211.

To entitle a person to be nominated as a senator or a member of the House of Representatives, he must be qualified under the Constitution, section 34, to be elected as a senator or a member of the House of Representatives. A disqualification provided. by the Act of 1902-11, section 96, is re-enacted, viz., "No person who is at the date of nomination, or who was at any time

within 14 days prior to the date of nomination a member of the Parliament of a State, shall be capable of being nominated as a senator, or a member of the House of Representatives." Re-enacted in section 70 of the Act of 1918.

Election of President.

17. The Senate shall, before proceeding to the despatch of any other business, choose a senator to be the President of the Senate; and as often as the office of President becomes vacant the Senate shall again choose a senator to be the President.

The President shall cease to hold his office if he ceases to be a senator. He may be removed from office by a vote of the Senate, or he may resign his office or his seat by writing addressed to the Governor-General.

Absence of President.

18. Before or during any absence of the President, the Senate may choose a senator to perform his duties in his absence.

Resignation of senator.

19. A senator may, by writing addressed to the President, or to the Governor-General if there is no President or if the President is absent from the Commonwealth, resign his place, which thereupon shall become vacant.

Vacancy by absence.

20. The place of a senator shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the Senate, fails to attend the Senate.

Vacancy to be notified.

21. Whenever a vacancy happens in the Senate, the President, or if there is no President or if the President is absent from the Commonwealth the

Governor-General, shall notify the same to the Governor of the State in the representation of which the vacancy has happened.

Quorum.

22. Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers.

Voting in Senate.

23. Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote. The President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the negative.

PART III.--THE HOUSE OF REPRESENTATIVES.

Constitution of House of Representatives.

24. The House32 of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the

senators.

The number of members chosen33 in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner:

(i.) A quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of the senators:

(ii.) The number of members to be chosen in each State shall be determined by dividing the

number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one-half of the quota, one more member shall be chosen in the State.

But notwithstanding anything in this section, five members at least shall be chosen in each Original State.

§ 32.

"THE HOUSE OF REPRESENTATIVES.”

The House of Representatives is one of the two Chambers of the legislative organization of the Federal Government. intended to give particular force and expression to the national principle of the Commonwealth. In that Assembly, the Convention which drafted the Constitution, hoped that the national principle would find full scope and representation tending in the direction of the consolidation of the people of Commonwealth into one integrated whole, irrespective of State boundaries. In its constitution it represents the "people of the Commonwealth " as distinguished from the people of the States.". The natural bent, inclination and policy of such a House will therefore be to regard its constituents as one united people; one in community in rights and interests; one in their title to equal justice and to the equal protection of law; one in their claim to fair and beneficient treatment; one in destiny. On the other hand the design of the Constitution was that the Senate and the High Court would tend to check any unconstitutional encroachments on the reserved realm of provincial autonomy.

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§ 33. "THE NUMBER OF MEMBERS CHOSEN IN THE SEVERAL STATES."

LEGISLATION.

REPRESENTATION ACT 1905.

For the purpose of determining the number of members of the House of Representatives to be chosen from time to time in the several States, it is the duty of the Chief Electoral Officer of the Commonwealth at the times and in the manner prescribed by this Act to ascertain the numbers of the people of the Commonwealth and the numbers of the people of the several States.