R v Pearson; Ex parte Sipka

High Court of Australia|1983-03-05|Before: Dawson JJ, Wilson JJ

For the reasons we have given we hold that s. 41 preserves only those rights which were in existence before the passing of the Commonwealth Franchise Act 1902. It follows that none of the prosecutors can succeed in the present case. None of them had acquired any right to vote at a State election before the federal franchise was established. None, therefore, is prevented from voting, within the meaning of s. 41, by the Commonwealth Electoral Act.

Section 41 is also open to the interpretation that it is directed to the franchise and not to the machinery for voting. The Parliament of the Commonwealth has power to make laws relating to elections for members of the House of Representatives and of the Senate: see ss. 9, 31 and 51(xxxvi). Section 45(a) of the Commonwealth Electoral Act is a law of that kind. There is much to be said for the view that to give effect to all the relevant sections of the Constitution it would be necessary to hold that any entitlement to vote given by s. 41 should be exercised in accordance with the provisions of a law for the conduct of elections validly made under the provisions of ss. 9, 31 and 51(xxxvi). It could not be suggested that s. 45(a) was other than a reasonable and bona fide exercise of constitutional power. However, it is unnecessary to discuss further this aspect of the matter.

In our opinion none of the prosecutors is entitled to vote at the forthcoming elections of the Commonwealth Parliament and the application in each case should be refused.

In issue is the integrity of the Australian democratic electoral system. An election for the 33rd Federal Parliament is now in progress. The four prosecutors, Mrs. Sipka, Mr. Kleppich, Mr. Chapman and Ms. Walters, claim to be entitled to vote at these elections by virtue of s. 41 of the Constitution which provides "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 32nd Parliament was dissolved by the fifth double dissolution in the history of the Commonwealth. Section 28 of the Constitution provides that, "Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General." The first meeting of the House of Representatives of the 32nd Parliament was on 25 November 1980; it would thus continue unless dissolved until 25 November 1983. Section 32 of the Constitution provides, "The Governor-General-in-Council may cause writs to be issued for general elections of members of the House of Representatives. the writs shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof." Thus, unless the 32nd Parliament was sooner dissolved, writs for an election for the 33rd Parliament would have been issued within ten days from 25 November 1983.

Leaving aside s. 41 of the Constitution on which the prosecutors rely, persons become entitled to vote, if they are qualified under the Commonwealth Electoral Act 1918 (as amended) (Pt IV) and are enrolled (s. 39(3)). Section 45(a) of the Commonwealth Electoral Act provides "claims for enrolment which are received by the Registrar after six o'clock in the afternoon of the day of issue of the writ for an election shall not be registered until after the close of the polling at the election."

Usually when a federal election is impending many of the hundreds of thousands of persons who have become qualified by naturalization or attaining the age of eighteen years or otherwise but are not enrolled, become enrolled before the writs are issued. This is because, apart from the obligation to enrol (see s. 42, Commonwealth Electoral Act) there is usually some reasonable warning that the election is imminent.

In accordance with constitutional practice a dissolution of the House of Representatives or of both Houses occurs only on the advice to the Governor-General of the Prime Minister. It is well known that during the latter part of 1982 and early 1983 the Prime Minister, in repeated announcements which were widely reported, stated that there would not be an early election and towards the end of that period, that he was exploring the possibility of an election in 1984. (See, e.g., The Australian, 3 February 1983.) However without any prior public notice the Prime Minister announced in the late afternoon of 3 February 1983, that on his advice, the Governor-General had that day agreed to a double dissolution of the Senate and the House of Representatives; that the writs for the election would be issued on 4 February 1983, the date for nominations would be fixed as 19 February 1983; for the polling day, as 5 March 1983, and for the return of the writs, on or before 5 May 1983. Proclamations to this effect were issued on 4 February 1983.

Thus, although s. 32 of the Constitution allows for issue within ten days, the writs were issued on the same day as the proclamation of the dissolution. Although that was done in 1914, the practice since then has been to allow a space of some days between the proclamation of a double dissolution and the issue of writs for the elections. In 1951 the writs were issued nine days after the proclamation; in 1974 the writs were issued nine days after the proclamation; in 1975 the writs for four States were issued six days after the proclamation and the writs for the other two States were issued ten days after the proclamation. (See Commonwealth Gazettes of 19 March 1951, 4 April 1974 and 11 November 1975.)

The effect of the circumstances in which this election was called is that many persons who were entitled to be but were not enrolled on the Commonwealth roll by 6 p.m. on 4 February 1983 are, apart from s. 41 of the Constitution, prevented from enrolling and voting in this election because of s. 45(a) of the Commonwealth Electoral Act. The four prosecutors were not enrolled on either the roll of electors for the Commonwealth or that for a State. Mrs. Sipka was entitled to be enrolled on 4 February 1983 and has been so since her naturalization on 2 December 1982. Mr. Chapman has also been entitled since 21 December 1977 to enrol for both New South Wales and federal elections. Mr. Kleppich was not so entitled until his naturalization on 15 February 1983 and Ms. Walters became eighteen and eligible to enrol for the State elections on 14 February 1983 (the day before her eighteenth birthday). The names of all four have now been placed on the roll of electors for New South Wales and they have thus acquired a right to vote at elections for its more numerous House of Parliament, that is, the Legislative Assembly. The roll is a joint Commonwealth/State roll (see Arrangement between the Governor-General and the Governor of New South Wales making provision for Joint Electoral Roll in New South Wales, Commonwealth Gazette, 19 February 1930; Supplemental Arrangement between the Governor-General of the Commonwealth and the Governor of New South Wales in relation to Joint Electoral Rolls in New South Wales, Commonwealth Gazette, 10 August 1979; s. 32 Commonwealth Electoral Act; s. 21B Parliamentary Electorates and Elections Act 1912 N.S.W.). Thus despite the provisions of s. 45(a) of the Commonwealth Electoral Act the names of the prosecutors appear physically on the roll but in accordance with the Joint Electoral (Commonwealth and New South Wales) Regulations 1930, reg. 6(4), a practical compliance with s. 45(a) is achieved by placing a circle next to the names to indicate that the persons are not permitted to vote in the current elections. This means that there is no administrative difficulty in permitting the prosecutors (or other persons who are entitled to vote in State elections), to vote in the current elections, if s. 41 so entitles them.

Anyone is entitled to invoke the assistance of this Court to implement the guarantee if he or she is an adult person and is entitled to vote at State elections. Three of the prosecutors, Mrs. Sipka, Mr. Kleppich and Mr. Chapman meet these conditions. Miss Walters is eighteen years old and there is a question whether she is an adult person. All four have a right to vote for the New South Wales Legislative Assembly. Thus if s. 41 means what is says the three adult persons (and Ms. Waters if she is an adult) are entitled to vote in the current elections, and shall not be prevented from doing so by any law of the Commonwealth. The respondents claim that they are prevented from voting by ss. 39(3) and 45(a) of the Commonwealth Electoral Act. That is a contradiction of the plain words of the guarantee and is unacceptable.

The respondents also argue that the plain meaning of s. 41 and the broad scope of its guarantee must be restricted by implications which exhausted its effect in 1902, or in any event confine it to persons who are now over 100 years old. The argument is that the right in s. 41 must have been acquired by the adult person before the Commonwealth Franchise Act 1902 came into force (i.e., before 12 June 1902). Under the State electoral laws then in force (as well as the then meaning of adult person in s. 41) only persons twenty-one years of age or over could have or acquire the right, therefore, so the argument runs, s. 41 was intended to apply only to persons who were adults at least by 12 June 1902, so that the only persons presently entitled to the benefit are centenarians. An interpretation which requires that "adult person", must in 1983 be read as referring to centenarians, cannot be correct. The argument requires that words "until the Parliament otherwise provides" or similar words be read into s. 41, presumably before the words "be prevented".

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. Rather every reasonable presumption and interpretation should be adopted which favours the right of people to participate in the elections of those who represent them.

Plain meaning. The purpose conveyed by its plain words is a constitutional guarantee that every adult person who has a right to vote at State elections shall not be prevented by any Commonwealth law from voting at federal elections. The only sensible meaning is that the persons described are entitled to vote in federal elections. The respondents contend that s. 41 does not confer any right to vote at federal elections; it merely says that no Commonwealth laws shall prevent the persons described from voting in federal elections and that the right to vote must be found elsewhere. This ridicules the constitutional guarantee. Such a pedantic interpretation should not be adopted to nullify this important personal right. Further, like other constitutional statutory provisions s. 41 is presumed to be prospective, ambulatory and constantly speaking. Its words are not transitional.

The context. Section 41 is the first section in Pt IV of the Constitution which is headed "Both Houses of Parliament". The sections which follow immediately deal with oaths or affirmations of senators and members (s. 42); ineligibility of members of one House to be chosen or sitting as a member in the other (s. 43); disqualifications (s. 44); vacancies (s. 45), are not of limited duration. They are all prospective, ambulatory and constantly speaking. This context strongly suggests a similar interpretation of s. 41.

Contrast with transitional provisions. Where it was intended in Pt IV that a constitutional provision was to be transitional the section is introduced by the words "Until the Parliament otherwise provides" (see ss. 46, 47, 48). The same clause is expressed in other parts of the Constitution (see ss. 3, 7, 10, 20, 29, 30, 31, 34, 39, 65, 66, 67, 73, 87, 93, 96 and 97). There is no warrant for reading it into s. 41. When the framers intended such a limitation they expressed it. Its omission was intended to ensure that the Parliament could not prevent adult persons with a right to vote in State elections from voting in federal elections. If it were included, expressly or impliedly, s. 41 would be nonsensical. A section which read, until Parliament otherwise provides, no adult person etcetera shall be prevented by any law of the Commonwealth etcetera, would be internally contradictory. It would say that no law of the Commonwealth shall prevent voting until the law of the Commonwealth did prevent it.

Policy considerations. One of the arguments against giving the s. 41 guarantee the full scope of its plain meaning is that this would be undesirable, in particular that it would at least from the viewpoint of 1901 and subsequent history have made ineffective the desirable goal of a uniform federal franchise which was achieved by the Commonwealth Franchise Act 1902. This does not bear examination.

Before 1901 the immediate concern was that without s. 41 the women of South Australia, who were entitled to vote in State elections, might be prevented from voting in federal elections. The concern was not limited to women's rights nor was the guarantee. Before 1901, Aborigines had the right to vote at elections in certain States but not in others. The right to vote was not absolute. For example, those in receipt of aid were disqualified in New South Wales until 1926 (see Parliamentary Electorates and Elections Act, (No. 2) 1912 N.S.W. s. 20, 3(b); Parliamentary and Elections Amendment Act 1926, s. 9, (2); "House of Representatives Report from the Select Committee on Voting Rights of Aborigines" in Parliamentary Papers (General and Finance), vol. 2 (1961), p. 1401).

The Commonwealth Franchise Act 1902 purported to be "An Act to provide for an Uniform Federal Franchise". Policy arguments by the respondents are based on it being such an Act. It was not. Its s. 4 provided:

No aboriginal native of Australia, Asia, Africa or the Islands of the Pacific except New Zealand shall be entitled to have his name placed on an Electoral Roll unless so entitled under section forty-one of the Constitution. Although the Act extended the franchise to women in general, by disqualifying aboriginals who were not entitled to vote in State elections (and thus entitled by s. 41) it deliberately abstained from introducing uniform federal franchise. (This was continued by the Commonwealth Electoral Act 1918 s. 39(5).)

The Commonwealth Electoral Act (No. 26 of 1961) removed the disqualification of aboriginal natives of Asia, Africa and the Islands of the Pacific, but retained it for aboriginal natives of Australia (s. 4).

The Select Committee on the Voting Rights of Aboriginals established by the House of Representatives in 1961, sought the opinions of Solicitor-General Bailey and of Geoffrey Sawer, Professor of Law, Australian National University on the bearing of s. 41 on the power of the Commonwealth to extend the franchise to aborigines in those States of the Commonwealth where there were qualifications on this right. The Solicitor-General conceded that several views were open but stated: "In short, my advice on this matter is that, though s. 41 prevents the Commonwealth Parliament from denying to any person entitled under State law to vote at elections for the Lower House in the State the right to vote at a Federal election, the section does not in any way prevent the Parliament from conferring a federal vote on persons not entitled to vote at a State election" (Appendix VI, p. 1438). On the question "whether s. 41 is prospective in operation, or applies only to those who were qualified at the date when the first Commonwealth Franchise Act came into operation", Professor Sawer advised "The prospective view seems clearly the correct one, though s. 39(5)(a) and (aa) of the Commonwealth Electoral Act for caution covers both possibilities" (Appendix IV, p. 1434).

Following the Report of the Select Committee the disqualification of Australian aborigines was removed in 1962 by amendment of the Commonwealth Electoral Act No. 31 of 1962 (s. 2). Until then, the only right of Australian Aboriginals to vote in federal elections was derived from the guarantee in s. 41 (see Parliamentary Debates, House of Representatives, vol. 30, 20 April 1961). It guaranteed the right to vote to Aborigines in New South Wales, Victoria, South Australia and Tasmania. The history of discrimination against Aboriginal voting rights repudiates the argument that giving the s. 41 guarantee the full scope of its plain meaning would be an undesirable departure from the allegedly "Uniform Federal Franchise" introduced in 1902.

If the respondents' view of s. 41 is adopted, it has been, and is open to the federal Parliament to restrict the federal franchise in other ways so as to deprive persons with a State franchise from voting at federal elections. Thus Quick and Garran suggested that the Parliament could well disqualify persons who were in receipt of charity (The Annotated Constitution of the Australian Commonwealth (1901), p. 485). A modern version of this would be that Parliament disqualify persons in receipt of unemployment benefits or other social services. Section 41 protects those with a right to vote in State elections from any such disfranchisement.

Section 41 is a very important right. It permits extension to adult persons of voting rights to the full extent permitted to them from time to time under State law. It cannot reduce federal voting rights, nor can it extend them to other than "the people of the Commonwealth" (see s. 24), nor in the case of voting for senators to other than "the people of the State" (see s. 7). Section 41 cannot effect the proportionate representation of any State in either House of the Parliament.

It is no novelty for a constitutional guarantee to be read in such a way as to make a mockery of it. Dixon and Evatt JJ. so regarded the interpretation given to the guarantee of trial by jury in s. 80 of the Constitution. They said "there is high authority for the proposition that "the Constitution is not to be mocked" ". Their observation in relation to s. 80 that no court could countenance the suggestion that the language was carefully chosen so that the guarantee it appeared on the surface to give, should be in truth illusory, is also applicable to s. 41. (See R. v. Federal Court of Bankruptcy; Ex parte Lowenstein [9] .) To read s. 41 as referring to adult persons who on 1 January 1901 had or who shortly thereafter acquired a State voting right (or any similar modification) is to misread it and produce another mockery of the Constitution.

Quick and Garran favoured a restricted interpretation of s. 41 based on their account of the Convention Debates and this was followed by other early scholars (see Harrison Moore (The Constitution of the Commonwealth (1902)) and Solicitor-General Garran (Opinions of the Attorneys-General of the Commonwealth of Australia (1981), p. 695). However, Quick and Garran's account of the Debates in this respect are not entirely satisfactory. At the Constitutional Convention on 3 March 1898 the precursor to s. 41 was debated. It was in these terms:

No elector who has at the establishment of the Commonwealth, or who afterwards acquires, a right to vote at elections for the more numerous House of the Parliament of a state, shall, whilst the qualification continues, be prevented by any law of the Commonwealth from exercising such right at elections for either House of Parliament. (Convention Debates, cl. 44a, p. 1840) "Right to vote" was substituted for "qualification" (see p. 1847).

Mr. Barton recognized that the clause would have a continuing operation notwithstanding the introduction of any Commonwealth franchise and expressed fears of the extent to which the State franchise and consequently the Commonwealth franchise in that State might be extended. He said "any state might alter from time to time its suffrage for its House of Assembly, and, having altered it, notwithstanding the existence of the Commonwealth the person who acquired under that alteration a right to vote for the House of Assembly in that particular state might vote - although the extension of the suffrage gave it not only to women, but, perhaps, to such a class as the young persons of sixteen years of age who are now agitating in some places for a vote - notwithstanding the different suffrages of other states, at elections for either House of the Commonwealth as they were given that right under the law of the state, they, by the operation of this clause, would be entitled to the benefit of every successive alteration of the law, no matter to what length or depth it went, and in such a way that they would be entitled to influence, and very strongly influence the composition of both Houses of the Parliament" (p. 1841).

To meet the objection that as the clause stood there will be "an indefinite power in the hands of the States to constantly enlarge the franchise", Mr. Isaacs proposed that it be altered to read "Any elector who has, at the establishment of the Commonwealth, or who afterwards, and before the Parliament prescribes the qualification of electors for the Houses of Parliament, acquired a right to vote etc." (see p. 1851) That proposal was never adopted. Section 41 omits the very restrictions which Mr. Isaacs proposed. Unfortunately Quick and Garran in The Annotated Constitution of the Australia Commonwealth do not disclose fully these references to the continuing operation of the clause and although suggesting that there were several possible interpretations of s. 41 preferred that which in fact reflects the unadopted proposal of Mr. Isaacs. The respondents now contend likewise. The argument is unacceptable.

More recent scholars have favoured the unrestricted interpretation which gives effect to its words. In addition to the views of Professor Sawer and Solicitor-General Bailey, already referred to, Professor Lane in The Australian Federal System (1979), p. 673 states: "An adult person qualified to vote for members in the more numerous House of his State, that is, the Lower House, has an inalienable right under s. 41 to vote for members in either House of Federal Parliament."

s. 30 dealing with the qualification of electors of members to the House of Representatives and s. 8 dealing with the qualification of electors of Senators cannot be used to derogate from an adult person's entitlement under s. 41. This subjection of s. 30 (and s. 8) to s. 41 means two things. First, an adult person - that is, a person of the age of twenty-one years who has a currently State voting right - cannot be prevented from voting federally by a s. 30 law which prescribes an age in excess of twenty-one years. Second, an adult person who has certain qualifications (a limited period of residence, for example) which gives him a current State voting right cannot be prevented from voting federally by a s. 30 law which prescribes qualification in excess of the State qualifications.

In King v. Jones [10] Barwick C.J. assumed, without deciding, that s. 41 was prospective and presently speaking, Gibbs J. also without expressing a final opinion, said that the Quick and Garran view that s. 41 assures the right to vote at federal elections only to persons whose right to vote at State elections was acquired before the framing of a federal franchise was "far from clearly correct" [11] . Menzies J. said that the character of s. 41 was that of "a permanent constitutional provision" which "applies to a person, who, in 1901, had or who, in the future, acquires particular voting rights by the laws of a State" [12] . Walsh J. assumed that the words of s. 41 were "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 before the first federal franchise [13] . Stephen J. assumed that s. 41 applies to "any "adult person" who at any time acquires, by amendment of State electoral legislation, a right to vote at relevant State elections" [14] . (See also Higgins J. in Muramats v. Commonwealth Electoral Officer (W.A.) [15] .)

(1973) 128 C.L.R. 221, at p. 229. 2. (1973) 128 C.L.R., at p. 259. 3. (1973) 128 C.L.R., at p. 246. 4. (1973) 128 C.L.R., at p. 251. 5. (1973) 128 C.L.R., at p. 267. 6. (1923) 32 C.L.R. 500, at p. 504.

References to s. 41 in Acts. Although the interpretation of the Constitution cannot be determined by Acts made under it, it is noteworthy that the Parliament has since 1902 (the Commonwealth Franchise Act 1902) continued to refer to s. 41 as if the right to vote conferred by it is of continuing operation and importance. Thus the Commonwealth Electoral Act 1918 (as amended) s. 39 provides:

Notwithstanding any other provision of this Act, a person to whom section forty-one of the Constitution applies is entitled to enrolment under Part VII and to vote at any Senate election or House of Representatives election.

In reaching my conclusion I do not find it necessary to rely on s. 39B. At least since the advice to the House of Representatives Select Committee in 1961 it may be assumed that Parliament has acted on the basis that s. 41 is a continuing guarantee that an adult who at any time acquires a right to vote for the more numerous House of the State, is entitled to vote in elections for the Senate and the House of Representatives.

Adult person. The meaning of adult person in s. 41 arises in relation to Ms. Walters who became eighteen years of age on 14 February 1983 (the day before her eighteenth birthday). In 1901 "adult" no doubt meant a person of twenty-one years of age. In 1972, this Court in King v. Jones [16] held that adult person in s. 41 had a fixed meaning of a person of twenty-one years or more, but that in any event eighteen years of age was not sufficiently recognized throughout Australia as being the age of adulthood to justify treating adult person in s. 41 as including a person of eighteen years of age. At that time the Commonwealth Electoral Act still restricted the franchise to those of twenty-one years of age. But now in all States and Territories males and females of eighteen years can vote, make a will, marry without parental consent and enter enforceable contracts. In 1973 the Commonwealth Electoral Act 1918 was amended to give eighteen years olds the right to vote. Leaving aside s. 41, it was not disputed that for all relevant legal purposes eighteen years in the age of adulthood. In so far as King v. Jones held that the words "adult person" in s. 41 should be forever construed as meaning a person who has attained twenty-one years of age, the decision should, in my opinion, be overruled; that approach is inconsistent with general principles of constitutional interpretation which would give such words an ambulatory operation. To the extent that the decision depended on the State of Australian laws regarding adulthood, it should be distinguished. In 1983 in Australia and within the meaning of s. 41, an adult person is one who has attained the age of eighteen years. Ms. Walters is therefore within s. 41.

It follows that s. 41 entitles the prosecutors to vote.

Mandamus should issue to direct the respondent electoral officers to permit the prosecutors to vote in the current elections for the Senate and the House of Representatives.

Mrs. Jarka Sipka, the first prosecutor, was born in Czechoslovakia on 22 March 1953. She migrated to Australia and became an Australian citizen. She lives in the Electoral Division of Robertson in New South Wales. Pursuant to Pt VI of the Commonwealth Electoral Act 1918 ("the Act") Mrs. Sipka is qualified for enrolment as an elector at elections of Members of the Senate for the State of New South Wales and at elections of Members of the House of Representatives for the Division of Robertson. She wishes to be entered as an elector on the relevant rolls and to be admitted to vote at the current elections of Senators and Members of the House of Representatives on 5 March 1983, which is the date fixed for the polling. The writs for the elections were issued on 4 February last, and the Commonwealth electoral rolls were closed at 6.00 p.m. that day.

Section 45(a) of the Act directs the Registrar not to register claims for enrolment received after 6 o'clock in the afternoon of the day of the issue of the writ for an election until after the close of polling at the election. Mrs. Sipka sent her claim for enrolment to the registrar for the subdivision of the Division of Robertson in which she lives on 10 February. Therefore she has not been enrolled as an elector for the purposes of the Act.

As an arrangement has been made by the Governor-General of the Commonwealth with the Governor of New South Wales for the preparation, alteration and revision of joint electoral rolls for use at Commonwealth and State elections pursuant to the provisions of s. 32 of the Act and the corresponding provision, s. 21B, of the Parliamentary Electorates and Elections Act 1912 N.S.W ("the State Act"), the claim sent by Mrs. Sipka to the Registrar has resulted in her being placed on the appropriate roll of electors for the Legislative Assembly of New South Wales. Having satisfied the qualifications laid down for enrolment as an elector for the Assembly (see ss. 20, 21 of the State Act), she was entitled to have her name placed on the State roll and, having been enrolled, to vote at elections for the Assembly. Whether Mrs. Sipka acquired a right to vote at elections for the Legislative Assembly when she became qualified for enrolment as an elector under the State Act, or whether she acquired that right upon enrolment, she is now a person who has a right to vote at elections for the more numerous House of the Parliament of New South Wales. It is thus that Mrs. Sipka contends that she is now a person to whom s. 41 of the Constitution applies. That section provides:

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. Upon the hypothesis that she is a person to whom s. 41 of the Constitution applies, she submits that she is entitled to vote at the current elections on 5 March either because s. 41 confers that right upon her or because that right is expressly conferred by s. 39B of the Act. That section provides: Notwithstanding any other provision of this Act, a person to whom section forty-one of the Constitution applies is entitled to enrolment under Part VII and to vote at any Senate election or House of Representatives election. Mrs. Sipka seeks a writ of mandamus directing the respondents, who are Electoral Officers of the Commonwealth, to add her name to the relevant Commonwealth electoral rolls and to permit her to vote, and she seeks appropriate declarations.

Similar relief is sought by the other three prosecutors, who claims are founded upon circumstances which raise the same questions for determination. Mr. Kleppich, the second prosecutor, is an adult born in Czechoslovakia. At the time when his proceedings were commenced, he was awaiting naturalization. He has since been naturalized, has sent his claim for enrolment, and has now been registered on the relevant New South Wales roll. Mr. Chapman, the third prosecutor, is an adult aborigine who sent his claim for enrolment on 11 February 1983 and he too has now been registered on the relevant New South Wales roll. Miss Walters, the fourth prosecutor, was aged seventeen when her proceedings were commenced. She attained the age of eighteen on 15 February 1983 and then became entitled to enrolment. She sent her claim on 15 February 1983 and she has now been registered on the relevant New South Wales roll. An additional question, namely, whether she is an "adult person" within the meaning of that phrase in s. 41 of the Constitution, has been canvassed in her case.

The primary question which arises in all four applications is whether the right to vote which is protected or guaranteed by s. 41 extends beyond a right possessed by a person under a law of the State when a federal franchise was enacted by a law of the Commonwealth. If the answer is no, then none of the prosecutors can succeed because, apart from any other consideration, none of them is of sufficient age to have enjoyed such a right. Put differently, the primary question is whether s. 41 of the Constitution preserved to each State, after the Commonwealth Parliament enacted laws prescribing the Commonwealth franchise, a power to extend that franchise in that State. If the argument for the prosecutors be correct, a State can, by extending the franchise for its own "more numerous House of the Parliament", extend the Commonwealth franchise.

The true construction of s. 41 has been the subject of some academic controversy, as Gibbs J. and Stephen J. pointed out in King v. Jones [17] . This Court has not previously found it necessary to determine whether, notwithstanding the establishment of a uniform Commonwealth franchise, the State franchise for the more numerous House is translated by s. 41 into a right to vote at elections for either House of the Commonwealth Parliament. In King v. Jones, the applicants, being aged eighteen years or more but being under the age of twenty-one years and being entitled to vote at elections for the House of Assembly of South Australia, applied to be registered as electors on Commonwealth rolls on the ground that they were adult persons to whom s. 41 of the Constitution applied. It would have been open to dismiss the applications on the ground that the franchise as determined by the State of South Australia did not confer a franchise for electors for the Senate and the House of Representatives. But the Court did not resolve that question; it dismissed the applications on the ground that a person under the age of twenty-one years is not an adult person within the meaning of that phrase in s. 41. In an earlier case, Muramats v. Commonwealth Electoral Officer (W.A.) [18] , where the question might have been considered, the majority of the Court did not refer to it, though Higgins J. [19] was of the opinion that a right to enrolment on the Commonwealth roll would follow from an entitlement to vote at elections for the State Legislative Assembly.

(1972) 128 C.L.R. 221, at pp. 257-258, 267. 2. (1923) 32 C.L.R. 500. 3. (1923) 32 C.L.R., at p. 504.

The meaning and purpose of s. 41 may be gleaned from its terms and context and by reference to the circumstances in which the section was to operate immediately after Federation. At Federation the qualifications of electors of the more numerous Houses of the Parliaments of the respective States were not uniform. In particular, South Australia and Western Australia were the only States in the Commonwealth which has extended the franchise to women of the age of twenty-one and over. The right to vote in each State was nevertheless taken as the qualification of electors of members of the House of Representatives and of the Senate "[u]ntil the Parliament otherwise provides" (ss. 30, 8). The constitutional franchise thus conferred upon the people of the Commonwealth to elect the Parliament was defined by the laws of the respective States. That definition of the constitutional franchise was to yield to a statutory franchise when the Parliament, thereunto empowered by s. 51(xxxvi), defined the qualification of electors throughout the Commonwealth. It was anticipated that, at some time after Federation, the Parliament would enact a uniform qualification of electors of members of the Parliament. Section 128 made particular provision for halving the votes cast in referenda in any State in which adult suffrage prevailed "until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth".

Pending the enactment of a statutory franchise, the laws of the respective States which conferred a right to vote at elections of the more numerous House of the State Parliament were effective, by force of ss. 30 and 8, to create a right to vote at elections for either House of the Commonwealth Parliament. That right was protected by s. 41. At Federation, certain adult persons had acquired a right to vote under those laws; after Federation, certain persons attaining their majority acquired a right to vote under those laws. As the classes of electors were amenable to alteration by those laws, new classes of persons may have acquired a right to vote, and the right to vote of other classes may have ceased. Apart from exclusion by statutory amendment the right to vote acquired under a State law did not necessarily continue until the death of the elector. An elector's right was issued under the laws of some of the States for a limited period and, of course, an elector might have lost his right to vote by falling within one of the grounds of disqualification. The "continuing constitutional right to the federal franchise", (to adopt Stephen J.'s phrase in King v. Jones [20] ) which the Constitution conferred upon State-enfranchised electors was coterminous with the State franchise.

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. If a right to vote is claimed by an elector in reliance upon the statutory franchise now prescribed by the laws of the Commonwealth, those laws are definitive of the right and s. 41 has no work to do. But if and so long as a right to vote was claimed by an elector in reliance upon the constitutional franchise - whether existing at the establishment of the Commonwealth or the result of a later modification before the prescription of a statutory franchise by the Commonwealth Parliament - s. 41 precluded any law of the Commonwealth from preventing the exercise of that voting right. In other words, those who, by State laws, were able to acquire a right to vote at elections of the more numerous House of the State and who, by reason of ss. 30 and 8, thereby acquired the right to vote at elections of the Parliament of the Commonwealth, were entitled to continue voting at the latter elections so long as they continued to be entitled to vote at elections of the more numerous House of the State Parliament. They could not be prevented by any law of the Commonwealth from doing so.

The applicants seek to extend the operation of s. 41 beyond this point by converting the prohibition against preventing a person from voting at a federal election into a source of a right to vote at such an election. If s. 41 were given this operation, 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.

If that operation were accorded to s. 41, the Parliament of a State would be empowered to increase the number of its electors for the purposes of s. 128 beyond the number entitled under the uniform franchise. Such an operation of s. 41, though surprising and unsatisfactory, might be warranted if the text of the Constitution demanded it. But that operation is wholly unsupported by the terms of s. 41. It is impermissible to construe a provision relating to the prevention of the exercise of a right to vote as the source of the right itself. The right to vote to which s. 41 relates is the constitutional franchise conferred by ss. 30 and 8. The purpose of s. 41 is clear from its constitutional context: it was to ensure that those who enjoyed the constitutional franchise should not lose it when the statutory franchise was enacted. The statute was to govern the subsequent acquisition of the right to vote at federal elections. The persons to whom s. 41 applies are the persons who acquired the right to vote pursuant to ss. 30 and 8. After the Parliament enacted the Commonwealth Franchise Act 1902, which was entitled "An act to provide for an Uniform Federal Franchise", no person could acquire the right to vote at federal elections save in accordance with its terms.

However, the provisions of successive Commonwealth Acts relating to the franchise (and in particular provisions relating to disqualification) have expressly acknowledged the existence of a franchise the exercise of which is protected by s. 41: see the Commonwealth Franchise Act 1902, s. 4; the Commonwealth Electoral Act 1918, s. 39(5); the Commonwealth Electoral Act 1925, s. 2. When the Commonwealth Electoral Act 1961 repealed s. 39(5) as it then stood in the Act, s. 39B was inserted in Pt VI of the Act. But its purpose, as stated by its terms, is to ensure the statutory franchise for those to whom s. 41 applies, namely, those who are entitled to the constitutional franchise. By providing that other provisions of the Act do not prevail over s. 39B, the Parliament has done no more than to ensure that no statutory disqualification excludes a person to whom s. 41 applies from the statutory entitlement to be enrolled and to vote which s. 39B confers upon him.

It follows, of course, that the practical effect of s. 41 is spent. Most of the electors who acquired a right to vote at federal elections under ss. 30 and 8 of the Constitution would have died. Since 12 June 1902, when the Commonwealth Franchise Act came into force, no person has acquired a right to vote the exercise of which is protected by s. 41. None of the present applicants is a person to whom s. 41 applies. None of them is therefore entitled to enrol or to vote by reason of s. 39B of the Act.

High Court of Australia Gibbs C.J. Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ. R v Pearson; Ex parte Sipka [1983] HCA 6

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