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

Section 39(5) of the Commonwealth Electoral Act provides as follows:

(5) No aboriginal native of Australia, Asia, Africa, or the Islands of the Pacific (except New Zealand) shall be entitled to have his name placed on or retained on any roll or to vote at any Senate election or House of Representatives election unless so entitled under section forty-one of the Constitution.

Section 41 of the Constitution provides as follows:

41. No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall while the right continues be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.

An interpretation, in the following terms, of the effect of section 41 of the Constitution was issued, after consultation with the Law officers, for the guidance of Electoral Registrars:

It may be taken that the right referred to in section 41 of the Constitution must have been acquired by lawful enrolment as an elector for the more numerous House of the Parliament of the State prior to the passing of the Commonwealth Franchise Act, on the 12th June, 1902, and that in order to be entitled to Commonwealth enrolment the elector concerned must have continuously retained his right to such State enrolment.

On the 25th August, 1924, the Divisional Returning Officer for Melbourne, acting in conformity with the foregoing interpretation, rejected the claim for enrolment of one M.B., an aboriginal native of India, who, on the 22nd August, 1924, had been enrolled as an elector for the Legislative Assembly of the State of Victoria under the provisions of the State Electoral Act 1923, but who had not previously been enrolled as an elector for the more numerous House of the Parliament of a State.

M.B. appealed, pursuant to section 58 of the Commonwealth Electoral Act, to the Court of Petty Sessions at Melbourne, and, on the 3rd September, 1924, the presiding Police Magistrate made an order:

that the name of M.B. be added to the Electoral Roll for the Carlton South Subdivision of the Commonwealth Electoral Division of Melbourne.

An order nisi to review the Police Magistrate’s decision was set down on the 1st October, 1924, for hearing before the Full Court of the High Court, and it was also ordered that all proceedings on the Police Magistrate’s order be stayed until the hearing of the order nisi.

On the 11th December, 1924, a further order was made by the Court dismissing the appeal for want of prosecution.

The following questions now arise, in respect of which I shall be pleased to receive advice:

1. Should the electoral Register for the Carlton South Subdivision of the Electoral Division of Melbourne now enrol the name of M.B. on the roll for that Subdivision in pursuance of the order of the Police Magistrate?
2. Should Electoral Registrars in all States (excepting Queensland and Western Australia) enrol on the Commonwealth roll the name of an aboriginal native of Australia, Asia, Africa or the Islands of the Pacific who–
1. possesses the qualification for enrolment set out in section 39(1) of the Commonwealth Electoral Act, and
2. sends or delivers to the Electoral Registrar for the Subdivision in which he lives and has lived for a period of one month last past a duly completed electoral claim, and
3. is, at the time of sending or delivering his electoral claim, enrolled on the electoral roll for the more numerous House of the Parliament of a State?

Question No. 2 cannot apparently arise in the States of Queensland and Western Australia inasmuch as the Elections Act of 1915 (Queensland), section 11, provides:

No aboriginal native of Australia, Asia, Africa, or the Islands of the Pacific, shall be qualified to be enrolled upon any electoral roll.

and the Electoral Act 1907 (Western Australia), section 18, provides:

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

1. …
2. …
3. …
4. is an aboriginal native of Australia, Asia, Africa, or the Islands of the Pacific, or a person of the half blood.

Subsection (1) of section 58 of the Commonwealth Electoral Act 1918–1924 provides, inter alia, that any person who has made a claim for enrolment and has not been enrolled pursuant thereto, may make application to a court of summary jurisdiction for an order directing that his name be enrolled.

Subsection (6) of that section provides as follows:

(6) The clerk or other proper officer of the court shall send by post to the Divisional Returning Officer a certified copy of the order of the court, and it shall be the duty of the Divisional Returning Officer to direct the Registrar to make such entries (if any) upon the Roll as are necessary to give effect to the order.

In the case of M.B., the Court has ordered that the name of M.B. be enrolled and presumably the Clerk of the Court has sent to the Divisional Returning Officer a certified copy of the order. As the appeal against the order has been dismissed, there appears to be nothing to prevent the order being given effect to, and I think the Divisional Returning Officer should direct the Registrar to enrol the name of M.B., and the Registrar should do so accordingly.

On the authority of the decision in the case of M.B., it appears that in all States (excepting Queensland and Western Australia) persons whose claims to enrolment are subject to the same considerations as apply to his case are entitled to be enrolled.

The advice given from time to time by this Department as to the effect of section 41 of the Constitution is contrary to the decision above referred to. I see no sufficient reason at this stage to vary that advice.

The question whether, following the case of M.B., enrolment should be accorded generally to persons in like circumstances, appears to be a matter of policy for the Government to decide.

[Vol. 21, p. 455]