The 1949 Australian Federal Election is usually remembered for the election of the long-lived Liberal/Country Party government which lasted until 1972. It threw up one other interesting result: a High Court decision which (a little surprisingly) has never been reported.

Gordon Anderson was the winning candidate for the newly-formed electorate of Kingsford-Smith.  He took 49.7% of the vote.  His election was challenged by independent candidate Henry Crittenden (who took a whopping 3.2%).  Crittenden alleged that the Gordon – a Roman Catholic – was under an allegiance to the “Papal State”.  This would mean that his election breached §44(i) of the Australian Constitution. That section provides that –

Any person who … is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

By contrast, s.116 of the constitution states that “no religious test shall be required as a qualification for any office … under the Commonwealth”.

The case was brought in the High Court of Australia sitting as the Court of Disputed Returns. Anderson applied to stay the proceedings as vexatious. The matter was dealt with by Fullagar J. His Honour said –

[E]very person born in Australia, into whatever religion he may be born and whatever religion he may embrace, is according to the law of this country … a British subject owing allegiance to His Majesty, and that of that allegiance he cannot rid himself except in certain prescribed ways. … But the root of the matter, to my mind, lies in the fact that the petitioner really seeks to revive a point of view which was abandoned in England in 1829, when §2 of Act 10 Geo. IV, c. 7 enacted that any person professing the Roman Catholic religion might lawfully sit and vote as a member of either House of Parliament, if in other respects duly qualified. Section 116 of our own Constitution was, of course, not enacted by men ignorant or unmindful of history, and it is, in my opinion, §116, and not §44(i) of our constitution which is relevant when the right of a member of any religious body to sit in parliament is challenged on the ground of his religion. Effect could not be given to the petitioner’s contention without the imposition of a “religious test”. In my opinion, the ground put forward … is quite untenable.

The application was dismissed with costs against the petitioner.

Crittenden v Anderson (High Court of Australia, Fullagar J, 23 August 1950, unreported)