Opinion Number. 201

Subject

HOUSE OF REPRESENTATIVES WHETHER PERSONS WHO UNDER STATE LAW ARE ELECTORALLY DISQUALIFIED ON GROUNDS OF RACE UNLESS HAVING PROPERTY QUALIFICATION COUNT IN RECKONING QUOTA

Key Legislation

CONSTITUTION, ss. 24, 25 : ELECTIONS ACTS 1885-1911898 (QLD), s. 6

Date
Client
The Prime Minister

The Prime Minister asks to be advised whether, in reckoning the population of the State of Queensland, and of the Commonwealth, for the purposes of section 24 of the Constitution, aboriginal natives of India, China, or the South Sea Islands, resident in Queensland, should be excluded from the reckoning under the provisions of section 25 of the Constitution.

By the Queensland Elections Acts 1885-1911898, section 6, every adult male British subject, not otherwise disqualified, is qualified to be enrolled, as an elector for the State Legislative Assembly, in any electoral district in which he is qualified either (a) by residence, or (b) by the specified freehold or other property qualification.

Proviso (1) to that section provides that-

No aboriginal native of Australia, India, China, or the South Sea Islands, shall be entitled to be entered on the roll except in respect of a freehold qualification.

The opinion of Mr Attorney-General Deakin on this question, dated 18 November 1902(1), has been brought before me; and also a copy of an opinion by Sir Arthur Rutledge (then Attorney-General of Queensland) dated 13 May 1903; and I have given very full consideration to the question of the persons disqualified, and to be excluded in reckoning the population of Queensland, and of the Commonwealth, for the purpose of ascertaining the number of representatives to which Queensland is entitled, pursuant to sections 24 and 25 of the Constitution.

If the other races referred to are to be included in the computation, I cannot assent to the view taken by Sir Arthur Rutledge that Kanakas are to be excluded.

On the main question I concur with Mr Attorney-General Deakin. In my opinion the disqualification contemplated by section 25 is one of race. The exception under Queensland law of a freehold qualification is individual. The racial disqualification is universal; and it cannot I think be contended that the possession, by one or more persons of the prescribed race, of a property qualification, enabling him or them to vote by virtue of such property qualification, removes the disqualification from all persons of that race so as to place them outside the provisions of section 25 and within the computation. Yet that would be the effect of holding that the property qualification of one or more individuals negatived the general racial disqualification which simply prevents the recognition of persons of that race as citizens, although the possession of property by an individual may give him a right to vote in respect of it.

[Vol. 4, p. 416]

  1. Opinion No.111.