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

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.