An Express Constitutional Right to Vote? The Case for Reviving Section 41

Sydney Law Review, Vol. 36, No. 2, pp. 205-230, 2014

University of Queensland TC Beirne School of Law Research Paper No. 14-26

26 Pages Posted: 2 Jul 2014

See all articles by Jonathan Crowe

Jonathan Crowe

University of Southern Queensland - School of Law and Justice

Peta Stephenson

The University of Queensland - T.C. Beirne School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: July 1, 2014

Abstract

Section 41 of the Australian Constitution appears, on its face, to guarantee state electors the right to vote in Commonwealth elections. However, the High Court held in R v Pearson; Ex parte Sipka that the provision was merely transitional and no longer has any effect. This article takes issue with that conclusion. The authors contend that the majority’s reasoning in Pearson is unpersuasive. Further, a revived s 41 would cohere well with some of the central themes in Australia’s recent constitutional evolution, including the High Court’s changing approach to the protection of voting rights and the role of the states in constitutional reform under the Australia Acts 1986. The time is therefore ripe for the High Court to reconsider Pearson and integrate s 41 into its voting rights jurisprudence.

Keywords: Constitutional law, voting rights, federalism, Australia Acts

Suggested Citation

Crowe, Jonathan and Stephenson, Peta, An Express Constitutional Right to Vote? The Case for Reviving Section 41 (July 1, 2014). Sydney Law Review, Vol. 36, No. 2, pp. 205-230, 2014, University of Queensland TC Beirne School of Law Research Paper No. 14-26, Available at SSRN: https://ssrn.com/abstract=2461514

Jonathan Crowe (Contact Author)

University of Southern Queensland - School of Law and Justice ( email )

West Street
Toowoomba, Queensland 4350
Australia

HOME PAGE: http://jonathancrowe.org/

Peta Stephenson

The University of Queensland - T.C. Beirne School of Law ( email )

The University of Queensland
St Lucia
4072 Brisbane, Queensland 4072
Australia

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