King v Jones
Encyclopedia
King v Jones was an Australia
n court case decided in the High Court of Australia
on 1 September 1972. It concerned section 41 of the Australian Constitution
, and whether that section gave a person who had the right to vote in elections in South Australia
the right to vote in elections at a federal level. The main issue in the case was the meaning of the words "adult person" in section 41. The court decided that those words only applied to people who had attained the age of 21. A more significant issue, whether section 41 is a guarantee or a transitional provision, was considered briefly in this case.
was 21 across Australia, at both federal level and in all of the states and territories of Australia
. In that year however, the state of Western Australia
lowered the voting age to 18, and New South Wales
passed a law to lower the age, although it had not yet taken effect at the time of this case. South Australia lowered the age in 1971. At the federal level, the Liberal
government under Billy McMahon was opposed to lowering the voting age, and resisted calls to follow the states in lowering the age.
In 1972, Susan King, the 18 year old daughter of the Attorney-General of South Australia
, attempted to enroll to vote at her local electoral office in the Division of Boothby
. King was eligible to enroll to vote in South Australian elections, since she was over the voting age of 18, as required by the Age of Majority (Reduction) Act 1970. However, the electoral registrar there, Ernest Jones, did not enroll her because she was not over the age of 21, the minimum voting age under the Commonwealth Electoral Act 1918
. Another provision of that act allowed people who were refused enrollment to apply to a court to get an order to have their name put on the register, and King did so, applying to the Magistrates' Court of South Australia
.
However, before her application could be heard, the Attorney-General of Australia
, Senator Ivor Greenwood
, used his powers under the Judiciary Act 1903
to order that the case be removed into the High Court of Australia
. Two other people, Gerard McEwen and David Jones, had made similar applications after they were prevented from enrolling. Because the cases were similar, the three actions were heard together in the High Court. The Government of South Australia
also decided to intervene in the case.
King was represented in the case by Lionel Murphy
, a Labor
Senator, and the leader of the opposition
in the Australian Senate
. Jones was represented by the Solicitor-General of Australia
.
. That section provides that:
The argument was that, because King was an adult person who had a right to vote in elections for the South Australian House of Assembly
(the more numerous house of the Parliament of South Australia
), she therefore could not be prevented from enrolling or voting in federal elections by the Commonwealth Electoral Act 1918
.
came into being, the word "adult" would have been clearly understood as meaning a person over 21, and was used in contrast with the word "infant", which meant anyone under 21.
But it was argued for King that the South Australian Age of Majority (Reduction) Act 1970 had altered the age at which people in South Australia are legally considered adults from 21 to 18. Lionel Murphy also suggested that "adult person" really meant a person considered to be mature, and that in 1972, a person over 18 years old was considered mature, at least in South Australia. Murphy also raised the examples that people over 18 can, by law, marry, be tried as adults under Australian criminal law
, and can serve in the Australian Defence Force
. Murphy cited a range of dictionaries, including legal dictionaries, which gave the definition of adult as a person who is considered mature.
South Australia had intervened in the case, and the Solicitor-General for South Australia made the argument that section 41 of the Australian Constitution allows for differences between the states as to who has suffrage
. He argued that the section used the words "adult person" not as a technical legal word (because the technical words are words such as "majority" or "full age") but rather simply to refer to the common meaning of who is an adult. Thus section 41 entitled King to vote, because the meaning of "adult person" in South Australia was a person over 18.
Murphy attempted to call evidence from a professor of sociology
to support the claim that persons over 18 were considered mature persons in Australia. However, Chief Justice
Barwick
said that the court would only consider that evidence if they found that the meaning of "adult person" in section 41 was uncertain.
made laws about who could vote in federal elections. On this view, the section could be read as referring only to adult persons who were alive when the Constitution came into effect, or referring only to state laws in force when the Constitution came into effect, under which people might acquire a right to vote. This argument was first raised by John Quick
and Robert Garran
in their 1901 book, The Annotated Constitution of the Australian Commonwealth.
Jones argued that this interpretation should be adopted because of section 30 of the Australian Constitution. That section provides that "Until the Parliament
otherwise provides", the eligibility of people to vote at a federal level would be determined by state laws. The argument was that similarly, section 41 was a transitional provision designed to preserve the status quo until the parliament made laws about the subject (the first such law being the Commonwealth Franchise Act 1902
).
summed up the court's opinion:
Because the whole court decided that King was not an "adult person", and that section 41 did not apply to her, the court did not need to decide about the nature of section 41, whether it was a guarantee or a transitional provision. However, some of the judges did address the issue in obiter dicta
. Justice Menzies
said:
Justice Gibbs
was more reserved, saying:
Although the court did not reach a conclusion about the nature of section 41, since it was unnecessary to decide that question, the various judgments did indicate that the section was not a temporary or transitional provision, but was rather a guarantee of the right to vote for all who could vote in their state.
, later in the year, the Whitlam
Labor
government was elected, with Lionel Murphy becoming the new Attorney-General. The Whitlam government lowered the voting age at federal elections to 18 in 1973. The states of Victoria
, Tasmania
and Queensland
, which still had a voting age of 21, soon lowered their voting ages to 18 also.
The issue of the nature of section 41, which had not been decided in this case, was considered again in 1983 in the case of R v Pearson; Ex parte Sipka
. By that time, Lionel Murphy had been appointed to the High Court, and was able to advocate his interpretation of the section. However, Murphy was in lone dissent, since the six other justices took the narrower view of the section.
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
n court case decided in the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
on 1 September 1972. It concerned section 41 of the Australian Constitution
Section 41 of the Australian Constitution
Section 41 of the Australian Constitution is a provision of the Constitution of Australia which states that "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...
, and whether that section gave a person who had the right to vote in elections in South Australia
South Australia
South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland...
the right to vote in elections at a federal level. The main issue in the case was the meaning of the words "adult person" in section 41. The court decided that those words only applied to people who had attained the age of 21. A more significant issue, whether section 41 is a guarantee or a transitional provision, was considered briefly in this case.
Background to the case
Before 1970, the legal voting ageVoting age
A voting age is a minimum age established by law that a person must attain to be eligible to vote in a public election.The vast majority of countries in the world have established a voting age. Most governments consider that those of any age lower than the chosen threshold lack the necessary...
was 21 across Australia, at both federal level and in all of the states and territories of Australia
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
. In that year however, the state of Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
lowered the voting age to 18, and New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
passed a law to lower the age, although it had not yet taken effect at the time of this case. South Australia lowered the age in 1971. At the federal level, the Liberal
Liberal Party of Australia
The Liberal Party of Australia is an Australian political party.Founded a year after the 1943 federal election to replace the United Australia Party, the centre-right Liberal Party typically competes with the centre-left Australian Labor Party for political office...
government under Billy McMahon was opposed to lowering the voting age, and resisted calls to follow the states in lowering the age.
In 1972, Susan King, the 18 year old daughter of the Attorney-General of South Australia
Attorney-General of South Australia
The Attorney-General of South Australia is the member of the Government of South Australia responsible for maintenance and improvement of South Australia's system of law and justice...
, attempted to enroll to vote at her local electoral office in the Division of Boothby
Division of Boothby
The Division of Boothby is an Australian Electoral Division in South Australia. The division was created in 1903 and is named after William Boothby , the Returning Officer for the first election of Members of the House of Representatives in 1901....
. King was eligible to enroll to vote in South Australian elections, since she was over the voting age of 18, as required by the Age of Majority (Reduction) Act 1970. However, the electoral registrar there, Ernest Jones, did not enroll her because she was not over the age of 21, the minimum voting age under the Commonwealth Electoral Act 1918
Commonwealth Electoral Act 1918
The Commonwealth Electoral Act 1918 replaced the Commonwealth Franchise Act 1902 which defined who was allowed to vote in Australian federal elections. The Commonwealth Electoral Act comprehensively rewrote the Franchise Act and introduced instant-runoff voting, known in Australia as Preferential...
. Another provision of that act allowed people who were refused enrollment to apply to a court to get an order to have their name put on the register, and King did so, applying to the Magistrates' Court of South Australia
Magistrates' Court of South Australia
The Magistrates' Court of South Australia is South Australia's lowest level court.The Magistrates' Court has a criminal and civil jurisdiction. In its criminal jurisdiction, the Magistrates' Court deals with summary offences, which may be dealt with by a fine, imprisonment of up to two years,...
.
However, before her application could be heard, the Attorney-General of Australia
Attorney-General of Australia
The Attorney-General of Australia is the first law officer of the Crown, chief law officer of the Commonwealth of Australia and a minister of the Crown. The Attorney-General is usually a member of the Federal Cabinet, but there is no constitutional requirement that this be the case since the...
, Senator Ivor Greenwood
Ivor Greenwood
Ivor John Greenwood was an Australian politician and barrister.-Biography:Greenwood was born in North Melbourne and educated at Hartwell Central State School, Mont Albert Central State School, Scotch College and the University of Melbourne...
, used his powers under the Judiciary Act 1903
Judiciary Act 1903
The Judiciary Act 1903 regulates the structure of the Australian judicial system and invests federal Australian courts with jurisdiction. Its passage, on 25 August 1903, established the High Court of Australia...
to order that the case be removed into the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
. Two other people, Gerard McEwen and David Jones, had made similar applications after they were prevented from enrolling. Because the cases were similar, the three actions were heard together in the High Court. The Government of South Australia
Government of South Australia
The form of the Government of South Australia is prescribed in its constitution, which dates from 1856, although it has been amended many times since then...
also decided to intervene in the case.
King was represented in the case by Lionel Murphy
Lionel Murphy
Lionel Keith Murphy, QC was an Australian politician and jurist who served as Attorney-General in the government of Gough Whitlam and as a Justice of the High Court of Australia from 1975 until his death.- Personal life :...
, a Labor
Australian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
Senator, and the leader of the opposition
Opposition (Australia)
Her Majesty's Loyal Opposition in Australia fulfils the same function as the official opposition in other Commonwealth of Nations monarchies. It is seen as the alternative government and the existing administration's main opponent at a general election...
in the Australian Senate
Australian Senate
The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
. Jones was represented by the Solicitor-General of Australia
Solicitor-General of Australia
The Solicitor-General of the Commonwealth of Australia is the Second Law Officer to the Attorney-General of Australia. The holders of this office are not members of parliament....
.
Arguments
King's main argument was based on section 41 of the Australian ConstitutionSection 41 of the Australian Constitution
Section 41 of the Australian Constitution is a provision of the Constitution of Australia which states that "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...
. That section provides that:
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 argument was that, because King was an adult person who had a right to vote in elections for the South Australian House of Assembly
South Australian House of Assembly
The House of Assembly, or lower house, is one of the two chambers of the Parliament of South Australia. The other is the Legislative Council. It sits in Parliament House in the state capital, Adelaide.- Overview :...
(the more numerous house of the Parliament of South Australia
Parliament of South Australia
The Parliament of South Australia is the bicameral legislature of the Australian state of South Australia. It consists of the Legislative Council and the House of Assembly. It follows a Westminster system of parliamentary government....
), she therefore could not be prevented from enrolling or voting in federal elections by the Commonwealth Electoral Act 1918
Commonwealth Electoral Act 1918
The Commonwealth Electoral Act 1918 replaced the Commonwealth Franchise Act 1902 which defined who was allowed to vote in Australian federal elections. The Commonwealth Electoral Act comprehensively rewrote the Franchise Act and introduced instant-runoff voting, known in Australia as Preferential...
.
"Adult person"
However, the main argument for the respondent Jones was that King was not an "adult person" within the meaning of section 41, since adult meant a person who had reached the age of 21. It was argued that, when the Constitution of AustraliaConstitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
came into being, the word "adult" would have been clearly understood as meaning a person over 21, and was used in contrast with the word "infant", which meant anyone under 21.
But it was argued for King that the South Australian Age of Majority (Reduction) Act 1970 had altered the age at which people in South Australia are legally considered adults from 21 to 18. Lionel Murphy also suggested that "adult person" really meant a person considered to be mature, and that in 1972, a person over 18 years old was considered mature, at least in South Australia. Murphy also raised the examples that people over 18 can, by law, marry, be tried as adults under Australian criminal law
Australian criminal law
The criminal law of Australia generally administered by individual jurisdictions in the Commonwealth of Australia. These jurisdictions include the six states, the Commonwealth, and the self-governing territories...
, and can serve in the Australian Defence Force
Australian Defence Force
The Australian Defence Force is the military organisation responsible for the defence of Australia. It consists of the Royal Australian Navy , Australian Army, Royal Australian Air Force and a number of 'tri-service' units...
. Murphy cited a range of dictionaries, including legal dictionaries, which gave the definition of adult as a person who is considered mature.
South Australia had intervened in the case, and the Solicitor-General for South Australia made the argument that section 41 of the Australian Constitution allows for differences between the states as to who has suffrage
Suffrage
Suffrage, political franchise, or simply the franchise, distinct from mere voting rights, is the civil right to vote gained through the democratic process...
. He argued that the section used the words "adult person" not as a technical legal word (because the technical words are words such as "majority" or "full age") but rather simply to refer to the common meaning of who is an adult. Thus section 41 entitled King to vote, because the meaning of "adult person" in South Australia was a person over 18.
Murphy attempted to call evidence from a professor of sociology
Sociology
Sociology is the study of society. It is a social science—a term with which it is sometimes synonymous—which uses various methods of empirical investigation and critical analysis to develop a body of knowledge about human social activity...
to support the claim that persons over 18 were considered mature persons in Australia. However, Chief Justice
Chief Justice of Australia
The Chief Justice of Australia is the informal title for the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia...
Barwick
Garfield Barwick
Sir Garfield Edward John Barwick, was the Attorney-General of Australia , Minister for External Affairs and the seventh and longest serving Chief Justice of Australia...
said that the court would only consider that evidence if they found that the meaning of "adult person" in section 41 was uncertain.
Nature of section 41
An alternative argument raised for the respondent Jones was that section 41 was only ever intended to be a transitional provision, to have effect only until the Parliament of AustraliaParliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
made laws about who could vote in federal elections. On this view, the section could be read as referring only to adult persons who were alive when the Constitution came into effect, or referring only to state laws in force when the Constitution came into effect, under which people might acquire a right to vote. This argument was first raised by John Quick
John Quick (politician)
Sir John Quick , Australian politician and author, was the federal Member of Parliament for Bendigo from 1901 to 1913 and a leading delegate to the constitutional conventions of the 1890s.-Early life:...
and Robert Garran
Robert Garran
Sir Robert Randolph Garran GCMG KC was an Australian lawyer and public servant, an early leading expert in Australian constitutional law, the first employee of the Government of Australia and the first Solicitor-General of Australia...
in their 1901 book, The Annotated Constitution of the Australian Commonwealth.
Jones argued that this interpretation should be adopted because of section 30 of the Australian Constitution. That section provides that "Until the Parliament
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
otherwise provides", the eligibility of people to vote at a federal level would be determined by state laws. The argument was that similarly, section 41 was a transitional provision designed to preserve the status quo until the parliament made laws about the subject (the first such law being the Commonwealth Franchise Act 1902
Commonwealth Franchise Act 1902
The Commonwealth Franchise Act 1902 was an Act of the Parliament of Australia which defined who was allowed to vote in Australian federal elections. The Act granted Australian women the right to vote at a national level, and to stand for election to the Parliament...
).
Judgment
In a unanimous decision, the court held that the words "adult person" in section 41 were fixed with the meaning they had when the Constitution came into effect, and thus applied only to people aged over 21. Justice StephenNinian Stephen
Sir Ninian Martin Stephen, is a retired politician and judge, who served as the 20th Governor-General of Australia and as a Justice in the High Court of Australia.-Early life:...
summed up the court's opinion:
"The ordinary legal meaning of "adult"... was, at FederationFederation of AustraliaThe Federation of Australia was the process by which the six separate British self-governing colonies of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia formed one nation...
, 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."
Because the whole court decided that King was not an "adult person", and that section 41 did not apply to her, the court did not need to decide about the nature of section 41, whether it was a guarantee or a transitional provision. However, some of the judges did address the issue in obiter dicta
Obiter dictum
Obiter dictum is Latin for a statement "said in passing". An obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision...
. Justice Menzies
Douglas Menzies
Sir Douglas Ian Menzies KBE , Australian judge, was a Justice of the High Court of Australia.-Biography:Menzies was born in Ballarat, Victoria, in 1907. He was educated at Hobart High School and Devonport High School in Tasmania, before returning to Victoria to study at the University of Melbourne...
said:
"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."
Justice Gibbs
Harry Gibbs
Sir Harry Talbot Gibbs, GCMG, AC, KBE, QC was Chief Justice of the High Court of Australia from 1981 to 1987 after serving as a member of the High Court between 1970 and 1981...
was more reserved, saying:
"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... is far from clearly correct, but I find it unnecessary to express a final opinion upon it."
Although the court did not reach a conclusion about the nature of section 41, since it was unnecessary to decide that question, the various judgments did indicate that the section was not a temporary or transitional provision, but was rather a guarantee of the right to vote for all who could vote in their state.
Consequences
At the 1972 federal electionAustralian federal election, 1972
Federal elections were held in Australia on 2 December 1972. All 125 seats in the House of Representatives were up for election. The Liberal Party of Australia had been in power since 1949, under Prime Minister of Australia William McMahon since March 1971 with coalition partner the Country Party...
, later in the year, the Whitlam
Gough Whitlam
Edward Gough Whitlam, AC, QC , known as Gough Whitlam , served as the 21st Prime Minister of Australia. Whitlam led the Australian Labor Party to power at the 1972 election and retained government at the 1974 election, before being dismissed by Governor-General Sir John Kerr at the climax of the...
Labor
Australian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
government was elected, with Lionel Murphy becoming the new Attorney-General. The Whitlam government lowered the voting age at federal elections to 18 in 1973. The states of Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
, Tasmania
Tasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...
and Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
, which still had a voting age of 21, soon lowered their voting ages to 18 also.
The issue of the nature of section 41, which had not been decided in this case, was considered again in 1983 in the case of R v Pearson; Ex parte Sipka
R v Pearson; Ex parte Sipka
R v Pearson; Ex parte Sipka was an important Australian court case decided in the High Court of Australia on 24 February 1983. It concerned section 41 of the Australian Constitution, and the question of whether four people eligible to vote in New South Wales could be prevented from voting at the...
. By that time, Lionel Murphy had been appointed to the High Court, and was able to advocate his interpretation of the section. However, Murphy was in lone dissent, since the six other justices took the narrower view of the section.