R v Pearson; Ex parte Sipka
Encyclopedia
R v Pearson; Ex parte Sipka was an important Australia
n 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 federal level by a federal law which closed registration to vote on the day that the writs of election
were issued. The court decided that they could, adopting a narrow interpretation of section 41, and therefore finding that there is no express constitutional right to vote in Australia.
provided that:
This had the effect of closing the electoral roll on the day when an election was called, so that anyone who had not registered before it was called would not be able to vote.
Federal elections in Australia
are held at irregular intervals, but are usually about three years apart. However, in 1983, Liberal
Prime Minister
Malcolm Fraser
was keen to call an early election. Popular union leader Bob Hawke
had been elected to the Australian House of Representatives
in the 1980 election
, for the Australian Labor Party
(ALP), and was moving to challenge the ALP leader Bill Hayden
. Fraser thought his chances were better against Hayden than against Hawke, and so he wanted to hold the election before Hawke could take over the leadership.
Fraser requested a double dissolution
election (an election for the entire Parliament of Australia
, including both tranches of Senators), which was granted by Governor-General of Australia
Ninian Stephen
on 3 February, with the election date set for 5 March. The writs
were issued on 4 February, which meant that the electoral roll was effectively closed at 6 o'clock on that day.
Jarka Sipka, Rudolf Kleppich, Murray Chapman and Sarah Walters were four people from New South Wales
who were entitled to vote in New South Wales elections, but had not enrolled to vote in federal elections. When they applied to be put on the electoral roll, the Registrar refused to put their names on the roll until after the election, because the roll was already closed. Sipka and Chapman could have enrolled before the writs were issued, had they so chosen, but Kleppich and Walters could only have enrolled on or after 15 February, because Kleppich was not naturalised
until that date, and Walters did not turn eighteen (the minimum voting age
) until that date.
The four applied to the High Court of Australia
for writ
s of mandamus
compelling several people, including the Chief Australian Electoral Officer, to appear before the court to show cause for not registering the four people. The court granted the writs, and the hearings were held on 16 and 17 February.
. That section provides that:
The argument was that, because all four were adult persons who had a right to vote in elections for the New South Wales Legislative Assembly
(the more numerous house of the Parliament of New South Wales
), they therefore could not be prevented from enrolling or voting in federal elections by any provisions of the Commonwealth Electoral Act 1918
.
There were two other main potential interpretations of section 41, both of which suggested that the section was only ever intended to be a transitional provision, to preserve the status quo until the Parliament of Australia
could pass its own laws about elections and voting. The first interpretation was that section 41 only applied to people who were already entitled to vote when the Constitution of Australia
came into effect, an argument first advanced by William Harrison Moore
. The second argument was that it could apply to people who acquired a right after the Constitution came into effect, but only if they acquired that right on the basis of a state law which was in force before the Constitution came into effect, an argument put forward by John Quick
and Robert Garran
. The four people argued that neither of these interpretations should apply, because section 41 was not a transitional provision. They argued that if it were, it would have been worded like other transitional provisions, including the usual phrase "until Parliament otherwise provides".
The issue of section 41 had been considered, but not resolved, by the High Court in the earlier case of King v Jones
(that case was decided on a different basis, and it was unnecessary to reach a definite answer to this question). The four people argued that the obiter dicta
in that case supported their interpretation of section 41, that it was a guarantee rather than a transitional provision.
The Commonwealth electoral officers, who were represented by the Solicitor-General of Australia
Sir Maurice Byers, and William Gummow
(a future Justice of the High Court), argued that section 41 was indeed intended to be a transitional provision. They linked it with section 8 and section 30 of the Australian Constitution, which provide that until the federal parliament made laws on the matter, the qualification of electors for the Senate
(section 8) and the House of Representatives
(section 30) would be determined by state laws. Sir Maurice said:
Thus, their argument was that only rights existing before the passing of the Commonwealth Franchise Act 1902
(the first federal law to deal with the federal franchise
) would be protected by section 41.
Gibbs
and Justices Mason and Wilson
delivered one judgment, Justices Brennan
, Deane
and Dawson
delivering a second, concurring judgment.
The six majority judges decided that section 41
was indeed a transitional provision, which only operated as a restraint on the first law that the Parliament of Australia
passed concerning the federal franchise, the Commonwealth Franchise Act 1902
. That is, section 41 only protected rights which were in existence before the Franchise Act was passed. No new rights protectable by section 41 could be acquired after that time. Because the four people in this case did not acquire their right to vote in state elections until well after 1902, section 41 did not give them a right to vote in federal elections.
Justices Brennan, Deane and Dawson said:
They said that if the construction suggested by the applicants was correct, then:
Thus, for policy and historical reasons, the majority decided that the narrower interpretation of section 41 should be adopted.
, who before his appointment to the High Court had represented the applicant who was denied enrolment in the previous case to consider section 41, King v Jones
. Murphy took the view that section 41 was a constitutional guarantee of the right to vote, and that it should be interpreted on its plain meaning, that at any given time, all persons with a right to vote in state elections had a corresponding right to vote in federal elections. He said:
Murphy also referred to the history of section 41 in the Convention Debates
, in particular the records of 3 March 1898, where Edmund Barton
proposed that the clause which would become section 41 should explicitly apply only to electors who had the right to vote at state level "at the establishment of the Commonwealth or afterwards [acquires] under the law in force in any state at the establishment of the Commonwealth." But Barton faced opposition. Alexander Peacock
expressed concern that if Victoria
followed South Australia
in granting women's suffrage
, but did so after Federation
, then Barton's clause would not protect their rights federally. The President of the Convention, Charles Kingston
, was also sceptical. Frederick Holder
said that "If the clause is altered as our leader wishes it to be altered, the right of the state Parliaments to expand the franchise would cease on the establishment of the Commonwealth, and the federal action in reference to the franchise might not be taken for some years." Barton's proposal was defeated, and the broader wording remained, and so in Murphy's view, the history of section 41 demanded that it not be regarded as a transitional provision.
Murphy reached the conclusion that section 41 did give the four people a right to vote at a federal level, since they had a right to vote in New South Wales
. However, Murphy was the only judge to reach this conclusion.
.
Unbeknownst to Malcolm Fraser in Canberra
, on the day that the election was called Bill Hayden's supporters were moving against him in Brisbane
. They encouraged Hayden to resign, and he did so, with Hawke elected leader of the ALP unopposed. Thus Fraser's attempt to preempt a leadership change had backfired, and at the election, Fraser was defeated by Hawke.
In 1988, the Hawke government appointed a Constitutional Commission (chaired by the lawyer for the Commonwealth officers in this case, Maurice Byers) which was tasked with investigation options to reform the Constitution. Out of the resulting report, the Hawke government drew four main proposals, which were put to the people of Australia as referendums
later in the year. Of the four referendum questions proposed, one, titled Fair Elections
, included a proposal to remove section 41, and replace it with a clear guarantee of the right to vote. However, the referendum failed, attracting only 37.59% support nationally.
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 24 February 1983. 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 the question of whether four people eligible to vote in 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...
could be prevented from voting at the federal level by a federal law which closed registration to vote on the day that the writs of election
Writ of election
A writ of election is a writ issued by the government ordering the holding of a special election for a political office.In the United Kingdom and in Canada, this is the only way of holding an election for the House of Commons...
were issued. The court decided that they could, adopting a narrow interpretation of section 41, and therefore finding that there is no express constitutional right to vote in Australia.
Background to the case
In 1983, section 45 of the Commonwealth Electoral Act 1918Commonwealth 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...
provided that:
45 (a) Claims for enrolment... which are received by the Registrar after six o'clock in the afternoon of the day of the issue of the writ for an election shall not be registered until after the close of polling at the election.
This had the effect of closing the electoral roll on the day when an election was called, so that anyone who had not registered before it was called would not be able to vote.
Federal elections in Australia
Elections in Australia
Australia elects a legislature the Parliament of the Commonwealth of Australia using various electoral systems: see Australian electoral system. The Parliament consists of two chambers:...
are held at irregular intervals, but are usually about three years apart. However, in 1983, 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...
Prime Minister
Prime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
Malcolm Fraser
Malcolm Fraser
John Malcolm Fraser AC, CH, GCL, PC is a former Australian Liberal Party politician who was the 22nd Prime Minister of Australia. He came to power in the 1975 election following the dismissal of the Whitlam Labor government, in which he played a key role...
was keen to call an early election. Popular union leader Bob Hawke
Bob Hawke
Robert James Lee "Bob" Hawke AC GCL was the 23rd Prime Minister of Australia from March 1983 to December 1991 and therefore longest serving Australian Labor Party Prime Minister....
had been elected to the Australian House of Representatives
Australian House of Representatives
The House of Representatives is one of the two houses of the Parliament of Australia; it is the lower house; the upper house is the Senate. Members of Parliament serve for terms of approximately three years....
in the 1980 election
Australian federal election, 1980
Federal elections were held in Australia on 18 October 1980. All 125 seats in the House of Representatives, and 34 of the 64 seats in the Senate, were up for election. The incumbent Liberal Party of Australia led by Malcolm Fraser with coalition partner the National Country Party led by Doug...
, for the Australian Labor Party
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...
(ALP), and was moving to challenge the ALP leader Bill Hayden
Bill Hayden
William George "Bill" Hayden AC was the 21st Governor-General of Australia. Prior to this, he represented the Australian Labor Party in parliament; he was a minister in the government of Gough Whitlam, and later became Leader of the Opposition, narrowly losing the 1980 federal election to the...
. Fraser thought his chances were better against Hayden than against Hawke, and so he wanted to hold the election before Hawke could take over the leadership.
Fraser requested a double dissolution
Double dissolution
A double dissolution is a procedure permitted under the Australian Constitution to resolve deadlocks between the House of Representatives and the Senate....
election (an election for the entire Parliament of Australia
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...
, including both tranches of Senators), which was granted by Governor-General of Australia
Governor-General of Australia
The Governor-General of the Commonwealth of Australia is the representative in Australia at federal/national level of the Australian monarch . He or she exercises the supreme executive power of the Commonwealth...
Ninian Stephen
Ninian 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:...
on 3 February, with the election date set for 5 March. The writs
Writ of election
A writ of election is a writ issued by the government ordering the holding of a special election for a political office.In the United Kingdom and in Canada, this is the only way of holding an election for the House of Commons...
were issued on 4 February, which meant that the electoral roll was effectively closed at 6 o'clock on that day.
Jarka Sipka, Rudolf Kleppich, Murray Chapman and Sarah Walters were four people from 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...
who were entitled to vote in New South Wales elections, but had not enrolled to vote in federal elections. When they applied to be put on the electoral roll, the Registrar refused to put their names on the roll until after the election, because the roll was already closed. Sipka and Chapman could have enrolled before the writs were issued, had they so chosen, but Kleppich and Walters could only have enrolled on or after 15 February, because Kleppich was not naturalised
Naturalization
Naturalization is the acquisition of citizenship and nationality by somebody who was not a citizen of that country at the time of birth....
until that date, and Walters did not turn eighteen (the minimum voting age
Voting 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...
) until that date.
The four applied to 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...
for writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
s of mandamus
Mandamus
A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
compelling several people, including the Chief Australian Electoral Officer, to appear before the court to show cause for not registering the four people. The court granted the writs, and the hearings were held on 16 and 17 February.
Arguments
The main argument for the four people 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 all four were adult persons who had a right to vote in elections for the New South Wales Legislative Assembly
New South Wales Legislative Assembly
The Legislative Assembly, or lower house, is one of the two chambers of the Parliament of New South Wales, an Australian state. The other chamber is the Legislative Council. Both the Assembly and Council sit at Parliament House in the state capital, Sydney...
(the more numerous house of the Parliament of New South Wales
Parliament of New South Wales
The Parliament of New South Wales, located in Parliament House on Macquarie Street, Sydney, is the main legislative body in the Australian state of New South Wales . It is a bicameral parliament elected by the people of the state in general elections. The parliament shares law making powers with...
), they therefore could not be prevented from enrolling or voting in federal elections by any provisions of 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...
.
There were two other main potential interpretations of section 41, both of which suggested that the section was only ever intended to be a transitional provision, to preserve the status quo until the Parliament of Australia
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...
could pass its own laws about elections and voting. The first interpretation was that section 41 only applied to people who were already entitled to vote when the Constitution of Australia
Constitution 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 effect, an argument first advanced by William Harrison Moore
William Harrison Moore
Sir William Harrison Moore KBE CMG , Australian lawyer and academic, was a professor at the University of Melbourne, and the third dean of the Melbourne University Law School.-Early life and education:Moore was born in London, England in 1867, the son of printer John Moore and...
. The second argument was that it could apply to people who acquired a right after the Constitution came into effect, but only if they acquired that right on the basis of a state law which was in force before the Constitution came into effect, an argument put forward 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...
. The four people argued that neither of these interpretations should apply, because section 41 was not a transitional provision. They argued that if it were, it would have been worded like other transitional provisions, including the usual phrase "until Parliament otherwise provides".
The issue of section 41 had been considered, but not resolved, by the High Court in the earlier case of King v Jones
King v Jones
King v Jones was an Australian 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...
(that case was decided on a different basis, and it was unnecessary to reach a definite answer to this question). The four people argued that the 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...
in that case supported their interpretation of section 41, that it was a guarantee rather than a transitional provision.
The Commonwealth electoral officers, who were 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....
Sir Maurice Byers, and William Gummow
William Gummow
William Montague Charles Gummow AC is a Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Biography:...
(a future Justice of the High Court), argued that section 41 was indeed intended to be a transitional provision. They linked it with section 8 and section 30 of the Australian Constitution, which provide that until the federal parliament made laws on the matter, the qualification of electors for the 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,...
(section 8) and the House of Representatives
Australian House of Representatives
The House of Representatives is one of the two houses of the Parliament of Australia; it is the lower house; the upper house is the Senate. Members of Parliament serve for terms of approximately three years....
(section 30) would be determined by state laws. Sir Maurice said:
"Section 41 refers to adult persons who had a right to vote in State elections at the establishment of the Commonwealth, and those who acquired such a right under State law before the establishment of the federal franchise. Pending that establishment, the right to vote was defined in ss 8 and 30 of the Constitution by reference to electors' qualifications from the more numerous State House. These sections speak of circumstances existing at the establishment of the Commonwealth and thereafter until the commencement of a federal law. They envisage the displacement of the Constitutional suffrage by a federal suffrage established by Parliament."
Thus, their argument was that only rights existing before the passing of 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...
(the first federal law to deal with the federal franchise
Suffrage
Suffrage, political franchise, or simply the franchise, distinct from mere voting rights, is the civil right to vote gained through the democratic process...
) would be protected by section 41.
Judgment
Only a week after the hearings, on 24 February, the High Court reached its decision. Three judgments were delivered, Chief JusticeChief 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...
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...
and Justices Mason and Wilson
Ronald Wilson
Sir Ronald Darling Wilson, AC, KBE, CMG, QC was a distinguished Australian lawyer, judge and social activist serving on the High Court of Australia between 1979 and 1989 and as the President of the Human Rights and Equal Opportunity Commission between 1990 and 1997.Wilson is probably best known as...
delivered one judgment, Justices Brennan
Gerard Brennan
Sir Francis Gerard Brennan, AC, KBE, QC , is an Australian lawyer, judge and 10th Chief Justice of Australia. He is father to Jesuit priest and lawyer Frank Brennan....
, Deane
William Deane
Sir William Patrick Deane, AC, KBE, QC , Australian judge and the 22nd Governor-General of Australia.-Early life:William Deane was born in Melbourne, Victoria. He was educated at Catholic schools including St. Joseph's College, Hunters Hill and at the University of Sydney, where he graduated in...
and Dawson
Daryl Dawson
Sir Daryl Michael Dawson, AC, KBE, CB Australian judge and naval officer, was a Justice of the High Court of Australia from 1982 to 1997.-Education:...
delivering a second, concurring judgment.
The six majority judges decided that section 41
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...
was indeed a transitional provision, which only operated as a restraint on the first law that the Parliament of Australia
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...
passed concerning the federal franchise, 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...
. That is, section 41 only protected rights which were in existence before the Franchise Act was passed. No new rights protectable by section 41 could be acquired after that time. Because the four people in this case did not acquire their right to vote in state elections until well after 1902, section 41 did not give them a right to vote in federal elections.
Justices Brennan, Deane and Dawson said:
"Though it is right to see s 41 as a constitutional guarantee of the right to vote, the means by which that guarantee is secured is itself definitive of the extent of the guarantee. Voting, that is, the exercise of an existing right to vote, at elections of the Commonwealth Parliament cannot 'be prevented by any law of the Commonwealth'. But s 41 does not in terms confer a right to vote."
They said that if the construction suggested by the applicants was correct, then:
"the power conferred upon the Parliament to legislate for a uniform franchise would be destroyed. A Parliament of a State would be empowered to give the federal franchise to those whom the Commonwealth Parliament has excluded or disqualified, for example, property owners who do not live in the State, aliens, prohibited immigrants or convicts under sentence for more serious offences."
Thus, for policy and historical reasons, the majority decided that the narrower interpretation of section 41 should be adopted.
Murphy's dissent
The lone dissenting judgment was delivered by Justice MurphyLionel 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 :...
, who before his appointment to the High Court had represented the applicant who was denied enrolment in the previous case to consider section 41, King v Jones
King v Jones
King v Jones was an Australian 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...
. Murphy took the view that section 41 was a constitutional guarantee of the right to vote, and that it should be interpreted on its plain meaning, that at any given time, all persons with a right to vote in state elections had a corresponding right to vote in federal elections. He said:
"Section 41 is one of the few guarantees of the rights of persons in the Australian Constitution. It should be given the purposive interpretation which accords with its plain words, with its context of other provisions of unlimited duration, and its contrast with transitional provisions. Constitutions are to read broadly and not pedantically. Guarantees of personal rights should not be read narrowly. A right to vote is so precious that it should not read out of the Constitution by implication."
Murphy also referred to the history of section 41 in the Convention Debates
Constitutional Convention (Australia)
In Australian history, the term Constitutional Convention refers to four distinct gatherings.-1891 convention:The 1891 Constitutional Convention was held in Sydney in March 1891 to consider a draft Constitution for the proposed federation of the British colonies in Australia and New Zealand. There...
, in particular the records of 3 March 1898, where Edmund Barton
Edmund Barton
Sir Edmund Barton, GCMG, KC , Australian politician and judge, was the first Prime Minister of Australia and a founding justice of the High Court of Australia....
proposed that the clause which would become section 41 should explicitly apply only to electors who had the right to vote at state level "at the establishment of the Commonwealth or afterwards [acquires] under the law in force in any state at the establishment of the Commonwealth." But Barton faced opposition. Alexander Peacock
Alexander Peacock
Sir Alexander James Peacock, KCMG , Australian politician, was the 20th Premier of Victoria.Peacock was born of Scottish descent at Creswick, the first Victorian Premier born after the gold rush of the 1850s and the attainment of self-government in Victoria. He was distantly related to the family...
expressed concern that if 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....
followed 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...
in granting women's suffrage
Women's suffrage
Women's suffrage or woman suffrage is the right of women to vote and to run for office. The expression is also used for the economic and political reform movement aimed at extending these rights to women and without any restrictions or qualifications such as property ownership, payment of tax, or...
, but did so after Federation
Federation of Australia
The 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...
, then Barton's clause would not protect their rights federally. The President of the Convention, Charles Kingston
Charles Kingston
Charles Cameron Kingston, Australian politician, was an early liberal Premier of South Australia serving from 1893 to 1899 with the support of Labor led by John McPherson from 1893 and Lee Batchelor from 1897 in the House of Assembly, winning the 1893, 1896, and 1899 state elections against the...
, was also sceptical. Frederick Holder
Frederick Holder
Sir Frederick William Holder KCMG was the 19th Premier of South Australia and a prominent member of the inaugural Australian Commonwealth Parliament, including the first Speaker of the House of Representatives.-Life:...
said that "If the clause is altered as our leader wishes it to be altered, the right of the state Parliaments to expand the franchise would cease on the establishment of the Commonwealth, and the federal action in reference to the franchise might not be taken for some years." Barton's proposal was defeated, and the broader wording remained, and so in Murphy's view, the history of section 41 demanded that it not be regarded as a transitional provision.
Murphy reached the conclusion that section 41 did give the four people a right to vote at a federal level, since they had a right to vote in 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...
. However, Murphy was the only judge to reach this conclusion.
Consequences
The four applicants were thus prevented from voting in the 1983 electionAustralian federal election, 1983
Federal elections were held in Australia on 5 March 1983. All 125 seats in the House of Representatives, and all 64 seats in the Senate, were up for election, following a double dissolution...
.
Unbeknownst to Malcolm Fraser in Canberra
Canberra
Canberra is the capital city of Australia. With a population of over 345,000, it is Australia's largest inland city and the eighth-largest city overall. The city is located at the northern end of the Australian Capital Territory , south-west of Sydney, and north-east of Melbourne...
, on the day that the election was called Bill Hayden's supporters were moving against him in Brisbane
Brisbane
Brisbane is the capital and most populous city in the Australian state of Queensland and the third most populous city in Australia. Brisbane's metropolitan area has a population of over 2 million, and the South East Queensland urban conurbation, centred around Brisbane, encompasses a population of...
. They encouraged Hayden to resign, and he did so, with Hawke elected leader of the ALP unopposed. Thus Fraser's attempt to preempt a leadership change had backfired, and at the election, Fraser was defeated by Hawke.
In 1988, the Hawke government appointed a Constitutional Commission (chaired by the lawyer for the Commonwealth officers in this case, Maurice Byers) which was tasked with investigation options to reform the Constitution. Out of the resulting report, the Hawke government drew four main proposals, which were put to the people of Australia as referendums
Referendums in Australia
In Australia, referendums are binding polls usually used to alter the Constitution of the Commonwealth or a state or territory. Non-binding polls are usually referred to as plebiscites.-Federal referendums:...
later in the year. Of the four referendum questions proposed, one, titled Fair Elections
Australian referendum, 1988 (Fair Elections)
Constitution Alteration 1988 proposed to enshrine in the constitution a guarantee that allCommonwealth, State and Territory elections would be conducted democratically.The question was put to a referendum in the Australian referendum, 1988....
, included a proposal to remove section 41, and replace it with a clear guarantee of the right to vote. However, the referendum failed, attracting only 37.59% support nationally.