Opinion Number. 1049

Subject

HOUSE OF REPRESENTATIVES CALCULATION OF NUMBER OF MEMBERS FOR A STATE: RECKONING TO EXCLUDE PERSONS OF ANY RACE WHOLLY EXCLUDED FROM STATE ELECTIONS: WHETHER STATE LAWS EXCLUDE ALL PERSONS FROM ANY RACE

Key Legislation

CONSTITUTION, ss. 24, 25, 127: NATURALIZATION ACT 1903. s. 5: NATIONALITY ACT 1920: NATURALISED SUBJECTS FRANCHISE ACT 1916 (N.S.W.), ss. 1, 4: CHINESE ACT 1915 (VIC), ss. 3, 4: ELECTIONS ACT 1915 (QLD), s. 11: ELECTORAL CODE 1908 (S.A.), s. 5: ELECTORAL ACT 1907 (W.A.). s. 18 (d)

Date
Client
The Chief Electoral Officer

The Chief Electoral Officer has forwarded for advice the following memorandum:

I shall be pleased to receive advice, in respect of each State excepting Tasmania, as to the persons other than aboriginal natives of Australia who are to be excluded pursuant to section 25 of the Constitution in reckoning the number of the people of the State and of the Commonwealth for the purposes of section 24 of the Constitution.

It is, of course, understood that by virtue of section 127 of the Constitution aboriginal natives of Australia are excluded from the count in all States.

Section 24 of the Constitution makes provision that the number of members of the House of Representatives to be chosen in each State shall be in proportion to the number of people in the State and section 25 provides that for the purposes of section 24, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

The State authorities of the several States, in reply to a request that they should furnish a reference to any existing State legislation under which all persons of any race are disqualified under the law of the State from voting at elections for the more numerous House of the Parliament of the State have replied to the following effect: New South Wales

Sections 1 and 4 of the Naturalised Subjects Franchise Act 1916 (New South Wales) provide that:

Section 1: (I) This Act may be cited as the 'Naturalised Subjects Franchise Act 1916', and shall take effect during the continuance of the present war between His Majesty and any of His Majesty's enemies, and for a period of six months after the conclusion of the war.

(2) In this Act, unless the context otherwise requires:-

'Naturalised British subject of enemy origin' means a naturalised male or female British subject who at the time of his or her naturalisation was a subject of a country with which the British Empire is at war.

Section 4: (1) A naturalised British subject of enemy origin shall not vote at an election under the Parliamentary Electorates and Elections Act, 1912, or under any Act relating to local government, or under the Sydney Corporation Act, 1902, or at any referendum. Victoria

The Chinese Act 1915 No. 2628 appears to be the only express enactment on the subject passed by the Parliament of this State.

NOTE: The Chinese Act 1915 No. 2628 does not appear to impose a racial disqualification. Sections 3 and 4 provide:

  1. In the construction of this Act the word 'immigrant' means any male adult native of China or its dependencies or of any islands in the Chinese seas not born of British parents or any person born of Chinese parents.
  2. No immigrant shall be entitled to vote at any municipal or parliamentary election (notwithstanding that such immigrant is a ratepayer) unless such immigrant is a naturalized or a natural-born subject of His Majesty.

Queensland

The racial disqualification under the State Electoral Act precludes aboriginal natives of Australia, Asia, Africa, or the Islands of the Pacific from becoming enrolled as electors.

South Australia

I am directed by the Honourable the Attorney-General to forward the opinion of the Crown Solicitor, which reads as follows:

I know of no disqualification for the exercise of the franchise imposed by the legislation of this State on racial grounds. Subject to certain disqualifications common to all electors, the franchise is open to all British subjects, and by section 5 of the Electoral Code 1908, 'British subjects' is defined as including naturalized as well as natural-born British subjects. By section 5 of the Naturalization Act 1903 (Commonwealth), the privilege of naturalization is denied to aboriginal natives of Asia, Africa, and the Islands of the Pacific except New Zealand, so that such persons cannot become naturalized, and so entitled to exercise the franchise. It might be contended that these natives are denied the franchise on racial grounds, but I do not think that such a contention could be maintained. The discrimination is based solely on the grounds of nationality (not of race) and this is clearly seen when it is considered that, subject to certain limited exceptions, the child of Asiatic parents is, if born in Australia, by reason of that fact, a natural-born British subject, and so, if he possesses the other qualifications required of other persons in general, is entitled to exercise the franchise.

NOTE: The Naturalization Act 1903 was repealed by the Nationality Act 1920 and no provision corresponding with that contained in section 5 of the first-mentioned Act was enacted by the Nationality Act. Western Australia

The only race disqualification from voting at elections for the more numerous House of the Parliament of this State is contained in section 18 paragraph (d) of the Electoral Act 1907 as amended which reads as follows:

Every person, nevertheless, shall be disqualified from being enrolled as an elector, or, if enrolled, from voting at any election, who-

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(d) is an aboriginal native of Australia, Asia, Africa, or the Islands of the Pacific, or a person of the half-blood. Tasmania

There is no law in force in this State providing for the disqualification of any race within the meaning of section 25 of the Constitution.

As regards New South Wales the disqualification imposed by the Naturalised Subjects Franchise Act 1916 is not, in my opinion, a racial disqualification but is founded on nationality. That Act does not appear to disqualify from voting all persons of any race.

The Chinese Act 1915 of Victoria is in the same category in that the right to vote depends on naturalization.

In Queensland it is, I think, clear that all persons of the aboriginal native races of Asia, Africa, and the Islands of the Pacific are disqualified from voting for the more numerous House of Parliament in that State.

As regards South Australia there appears to be no provision for disqualification on the grounds of a person's race.

In Western Australia the persons disqualified from voting are the same as in Queensland with the addition of persons of the half-blood. Persons of the half-blood cannot, I think be regarded as persons of any race and should, therefore, in my opinion be counted.

I am of opinion that no persons should be omitted from the count in New South Wales, Victoria or South Australia and that in Queensland and Western Australia all persons of any aboriginal native race of Asia, Africa or the Islands of the Pacific should be excluded pursuant to section 25 of the Constitution.

[Vol. 17, p. 338]