Opinion Number. 1434



Key Legislation

AboriginalS Ordinance 1918 (NT): AboriginalS Ordinance 1927 (NT): Constitution s 127

The Secretary, Department of Home and Territories

The Secretary, Department of Home and Territories, has forwarded me the following memorandum for advice:

The Returning Officer for the Northern Territory writes—

Enrolment of Halfcastes

An Ordinance, No. 5 of 1927, amends the Aboriginal Ordinance in such a way that a male halfcaste whose age exceeds 21 years and who, in the opinion of the Chief Protector, is incapable of managing his own affairs and is declared by the Chief Protector to be subject to that Ordinance, is included in the definition of ‘aboriginal’. This provision has been put into effect as regards one halfcaste who is enrolled for the Subdivision of Darwin. I am taking it that this, however, does not affect his right to enrolment, since he is not an aboriginal native of Australia in the sense of being a person in whom aboriginal blood preponderates.

I shall be glad to have any instructions or comments you consider necessary.

In this connection, attention is invited to the following minute received from the Law Department in 1905—

Mr. Attorney-General Deakin advised on 29th August, 1901,1 that halfcastes were not ‘aboriginal natives’ within the meaning of section 127 of the Constitution. Recommend to advise that halfcastes are not disqualified from enrolment but that all persons in whom the aboriginal blood preponderates are disqualified.

(Sgd.) R. R. Garran.

Secretary, Attorney-General’s Dept.


I think this is reasonable and should be followed.

(In’td.) [I. A. I.]2


I shall be pleased if the Law Officers will be asked to advise as to whether the opinion expressed in the minute above referred to is affected by Ordinance No. 5 of 1927, in so far as the Northern Territory is concerned.

The advice quoted in the above memorandum is on the interpretation of section 127 of the Constitution. The meaning of words in the Constitution cannot be affected
by Ordinance.

I accordingly advise that Ordinance No. 5 of 1927 does not affect the advice previously given as to the meaning of the words ‘aboriginal natives’.

[Vol. 23, p. 694]