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s41 Protection of the Commonwealth Franchise

Mar 19, 2016

The Constitutional Protection of the Commonwealth Franchise

The High Court in R v Pearson; Ex Parte Sipka (1983) 152 CLR 254 purported to limit the protection to a person's right to vote in Commonwealth elections afforded by s41. But is the limitation overstated? Is there a practical protection which remains available, but still consistent with the majority reasoning?

s41 states, "No adult person who has or acquires a right to vote at elections for the more numerous House of 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 majority reasoning in Pearson held that s41 did not of itself confer a right to vote for the House of Representatives or the Senate. It reasoned on the basis that the only time s41 afforded protection to a right to vote was when the right arose under transitional provisions whereby state law governed the franchise "until the Parliament otherwise provides" pursuant to s30 of the Constitution.

The majority postulated that the persons to whom the protection afforded by s41 would die out over time and the section would cease to provide any practical purpose.

The first flaw in this recourse-to-policy reasoning is that there is no textual reason addressing why s41 does not provide protection against the first law of the parliament which governed the franchise and which, apart from s41, prevented the State elector from exercising the Commonwealth franchise conferred by s30 of the Constitution. S41 must act upon all laws of the Parliament which act so as to prevent a qualified state elector from voting at elections for either House of the Parliament of the Commonwealth not all laws apart from the first one. Why is the Franchise Act 1902 exempt from the protection afforded by s41?

However, even accepting that s41 does not confer a positive franchise, what if the franchise arose in some other way? - Why would s41 not also offer protection?

How might that arise?

Well, what if the Parliament itself provided the right, but by a later law sought to revoke it? Take the existing franchise - let us say the Parliament sought to revoke the citizenship of a currently enfranchised elector? Provided the right to vote in State elections remained, why would a law removing an electors' citizenship not be rendered invalid by s41 to the extent that the law would remove the person's franchise?

If the current government persists in trying to strip current Australians of their citizenship, the majority of the High Court may have been wrong when they said, "It follows of course that the practical effect of s41 is spent". The potential for an exception is a salutary warning against taking a proposition which has not been fully argued as ratio.

This consideration also highlights the role of the States in maintaining their own baseline definitions of the State franchise which are not dependent upon the Commonwealth's changing moods.


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