King v Jones [1972] HCA 44

High Court of Australia Barwick C.J. McTiernan, Menzies, Walsh, Gibbs and Stephen JJ. King v Jones [1972] HCA 44

ORDER Applications dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 1 Barwick C.J.

This is an application for an order directing her enrolment on the roll for the Bragg sub-division of the Commonwealth electoral division of Boothby in the State of South Australia made by a claimant for enrolment under Pt VII of the Commonwealth Electoral Act 1918-1966 (the Act). Her claim was rejected by the divisional returning officer for that electoral division on the ground that she was not entitled to enrolment in that she was under the age of twenty-one years and was not a person to whom s. 39B of the Act applied.

Section 58 comprising Pt IX of the Act provides that a person who has not been enrolled pursuant to a claim for enrolment may apply to a court of summary jurisdiction for an order directing that his or her name be enrolled. The defendant, Ernest Mervyn Jones, at relevant times acted as electoral registrar for the subdivision of Bragg and as divisional returning officer for the division of Boothby. In his capacity of electoral registrar, the defendant received the applicant's claim for enrolment, and as divisional returning officer notified her of his rejection of that claim. Thereupon, the applicant, by complaint, applied to the magistrate's court in Adelaide, a court satisfying the requirements of s. 58 (1), for an order directing that her name be enrolled.

Pursuant to s. 40 of the Judiciary Act 1903-1969 Cth this application was removed into this Court by order made at the instance of the Attorney-General of the Commonwealth. The parties agreed on a statement of facts in order to obviate the taking of evidence in this Court. The application has, therefore, been heard by a Full Court, contemporaneously with two other like applications for orders directing enrolment also removed into this Court under s. 40 of the Judiciary Act, namely, the cases of Gerard Robert McEwen v. Colin Harrison Albert Hackert , No. 60 of 1972; and David Kelvin Jones v. Ernest Mervyn Jones , No. 52 of 1972. Though the ages of the several applicants are not identical, all were eighteen years or more of age and all were under the age of twenty-one at the date of claiming enrolment under the Act. Each made a claim for enrolment in a sub-division of an electoral division of South Australia. The electoral divisions were not identical nor was the same electoral registrar and divisional returning officer involved in each case. But there is no relevant distinction between the cases: each has been brought to raise the same question. In each case the court gave the Solicitor-General of South Australia leave to intervene on behalf of the Attorney-General of that State. I shall use the facts of the application of Susan Therese King in these reasons as symptomatic of all three cases and will discuss the arguments offered in each case by the respective counsel, the same senior counsel appearing for both Susan Therese King and Gerard Robert McEwen. My reasons in this case will therefore apply to all cases.