The following letter from the Administrator, Northern Territory, has been forwarded to me for advice by the Secretary, Home and Territories Department:

I have the honour to submit for consideration and advice two points which have arisen as to the correct interpretation of sub-section (5) of section 23 of Ordinance No. 9 of 1918 relating to aboriginals.

No. 1 is raised by Mr R.l.D. Mallam, Barrister and Solicitor of Darwin, acting in the interests of female Chinese clients and turns upon the question whether or not the word 'male' as used in the sub-section imports 'female'-Mr Mallam holding that it does not while I incline to the belief that it does. I enclose copies of the correspondence which has taken place on the subject.

No. 2 is raised by Mr A.J. Porter, Editor of the Northern Territory Times, in the interests of certain Australian-born Chinese who, he contends, should have the full rights of ordinary Australians to employ aboriginals or in other words that such Australian-born Chinese do not come within the prohibitory provision of the sub-section.

I am of the contrary opinion because, while the technical Australian nationality of such Chinese has to be admitted, the word used in the sub-section is 'race' which, as I apprehend it, is quite a distinct thing from legal nationality and cannot become a nullity by reason of naturalization or the accident of birth.

The points are of considerable local importance because the employment of aboriginals by Asiatics is a very undesirable thing in itself though very strongly wished for by many Asiatics and all possible efforts will be made to find some weakness or flaw in the prohibitory legislation which will enable what seems to me the manifest intention of its framers to be defeated.

I shall be glad to have advice on this matter as soon as convenient.

Sub-section (5) of section 23 of the Aboriginals Ordinance 1918 is as follows: (5) No licence to employ aboriginals shall be granted to any male person of any Asiatic race or any race prohibited in that behalf by regulation. By section 23 of the Acts Interpretation Act 1901 applied to the Northern Territory - by the Interpretation Ordinance 1911, unless the contrary intention appears, words importing the masculine gender include females.

It would appear that in the sub-section of the Ordinance quoted, a contrary intention does appear, and that a licence may be granted to a female Chinese, provided that the Protector is satisfied, in accordance with sub-sections (2) and (3) of section 23 of the Aboriginals Ordinance that the female Chinese applicants are fit persons to be licensed.

As to the second point raised in the Administrator's letter, I am of opinion that the word 'race' used in the sub-section quoted above connotes belonging to a particular ethnical stock.

Although these Australian-born Chinese are natural-born British subjects, they still belong to the Asiatic ethnical stock and are accordingly ineligible to be licensed to employ aboriginals.

[Vol. 18,p.425]