Opinion Number. 1622

Subject

parliamentary representation of aboriginals petition for separate representation of aboriginals in commonwealth parliament: senators and members to be directly chosen by people of the commonwealth: races power: territories power: election of aboriginal member for territory to represent aboriginals

Key Legislation

Constitution ss 7, 24, 51(xxvi), 80, 122, 127

Date
Client
The Secretary, Department of the Interior

The Secretary, Department of the Interior, has forwarded to me for advice the following communication:

I forward herewith copies of correspondence which has passed between this Department and the Prime Minister’s Department with regard to a Petition to His Majesty the King, presented by the Australian Aborigines’ League, relating to the welfare of aboriginals in Australia.

It will be observed that one of the requests contained in the Petition is that aboriginals should be afforded representation in the Commonwealth Parliament. Advice would be appreciated as to the Constitutional position so far as the granting of this particular request is concerned.

In the memorandum of 30th September, 1937, relating to the petition of the aboriginals, the Secretary, Department of the Interior, states, inter alia:

The petitioners pray that His Majesty will:

  1. prevent the extinction of the race;
  2. give better conditions for all aboriginals; and
  3. afford aboriginals representation in the Federal Parliament, either by an aboriginal or a white person known to have studied the need of aboriginals and to be in sympathy with them.

The following paragraph appears in a letter to the Prime Minister dated 26th October, 1937, from the Honorary Secretary, Aborigines’ League:

Respecting our claim for parliamentary representation, we very definitely submit that the Maori population is approximately the same as our people, with any advantage to us. In an area the size of Victoria they have four members and a Ministry for Native Affairs, which has had a native minister.

We are persisting in our claim for one who can speak for us in Parliament, influencing legislation on our behalf and safeguarding us from administrational officers who, with notable exceptions, interpret their responsibilities to the aborigines in much the same way as a gaol governor does his criminal population. Our desire is a change of heart in the electorate, reflected in Parliament and leading to a policy which will be different from that administered by our gaolers. So far from divided control being allowed to retard our securing representation, we feel that our member should have the right to sit in every legislature, and any constitutional difficulty could be overcome by legislation. If our member were a member of the Senate, perhaps, as this is a States’ Rights House, any difficulty might be more easily overcome.

Section 51 of the Constitution enables the Parliament of the Commonwealth to make laws with respect to the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws (placitum xxvi).(1)

By section 7 of the Constitution it is provided that the Senate shall be composed of senators for each State directly chosen by the people of the State. Section 24 provides that the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth.

Section 127 of the Constitution is as follows:

127. In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.2

It is clear, therefore, in my opinion, that the Commonwealth Parliament has no authority to pass legislation to give representation in Parliament to aboriginals qua aboriginals who live in the States of the Commonwealth.

There remains for consideration the questions whether it is competent for Parliament to enact a law granting representation to aboriginals in the Northern Territory. Section 122 of the Constitution reads:

122. The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

The extent of the powers conferred by this section was considered in The King v. Bernasconi, 19 C.L.R. p. 629. In his judgment Isaacs J. points out (at p. 637) that:

It is plain that that section does not consist merely of additional legislative power over territories beyond the powers already conferred upon Parliament in relation to the Commonwealth itself, for its language is unrestricted and covers many of the subjects already specified in sec. 51. It is an unqualified grant yet in a condition to enter into the full participation of Commonwealth constitutional rights and powers. It is in a state of dependency or tutelage, and the special regulations proper for its government until, if ever, it shall be admitted as a member of the family of States, are left to the discretion of the Commonwealth Parliament. If, for instance, any of the recently conquered territories were attached to Australia by act of the King and acceptance by the Commonwealth, the population there, whether German or Polynesian, would come within sec. 122, and not within sec. 80. Parliament’s sense of justice and fair dealing is sufficient to protect them, without fencing them round with what would be in the vast majority of instances an entirely inappropriate requirement of the British jury system.

In Porter v. The King, 37 C.L.R. p. 432, Higgins J. states that the power granted by section 122 to make laws for the Government of the Northern Territory is so far as appears, unlimited, and that it is difficult to see what right there is to limit it by construction. Starke J. (at p. 448) expresses the opinion that the Parliament has, by force of the section, full and plenary powers over the Territories. See also decision of Dixon J. in Federal Capital Commission v. Laristan Building and Investment Company Proprietary Limited, 42 C.L.R. p. 583, at p. 585.

Read by the light of these cases, section 122 would appear to be a grant of sufficient authority to Parliament to provide that aboriginals in the Northern Territory may elect an aboriginal member for that Territory to represent them as such. But these elective powers could only be conferred on the aboriginals living in Territories of the Commonwealth and not in Australia as a whole.

[Vol. 31, p. 23]

(1) Section 51(xxvi) of the Constitution was amended by the Constitution Alteration (Aboriginals) 1967, to remove the proviso with respect to the ‘aboriginal race in any State’, so as to provide that the Commonwealth Parliament may make laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’.

(2) Section 127 of the Constitution was repealed by the Constitution Alteration (Aboriginals) 1967.