Opinion Number. 428

Subject

H0USE OF REPRESENTATIVES EFFECT OF RACIAL DISQUALIFICATIONS FOR VOTING IN RECKONING QUOTA : WHETHER RESIDENTS OF TERRITORIES INCLUDED IN PEOPLE OF COMMONWEALTH

Key Legislation

CONSTITUTION, ss. 24. 25. III. 122. 127 : REPRESENTATION ACT 1905 : PARLIAMEN

Date
Client
The Minister for Home Affairs

The Minister for Home Affairs has referred the following memorandum by the Chief Electoral Officer to me for advice:

In connection with the action to be taken under the Representation Act 1905 as a result of the recent census, I shall be glad of advice in the following matters:

(1) Section 25 of the Constitution provides that for the purpose of giving effect to the preceding section governing representation- '. . . if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.' The following provisions occur in the several State Statutes in relation to exclusion from enfranchisement on racial grounds:

Queensland

'No aboriginal native of Australia, Asia, Africa, or the Islands of the Pacific shall be entitled to have his name placed on an Electoral Roll.' (The Elections Acts Amendment Act of1905 (5 Edward VII, No. l),section9 (2) ).

South Australia

'Persons brought into the Northern Territory under The Northern Territory Indian Immigration Act, 1882, and persons residing in the Northern Territory, except natural born British subjects and Europeans and citizens of the United States of America naturalised as British subjects, are disqualified from voting.' (The Electoral Code 1908 (No. 971 of 1908), section 18).

Western Australia

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

(d) is an aboriginal native of Australia, Asia, Africa, or the Islands of the Pacific, or a person of the half-blood.' (Electoral Act 1907 (No. 27 of 1907), section 18).

New South Wales; Victoria; Tasmania

There are apparently no racial disqualifications under State laws to which section 25 of the Constitution would apply: Parliamentary Electorates and Elections Act 1902 (New South Wales, No. 33 of 1902), section 21; Electoral Act 1910 (Victoria, 1 Geo.V, No. 2288), section 13; The Constitution Amendment Act 1906 (Tasmania, No. 47 of 1906), section 10.

Leaving out of consideration aboriginals excluded from the count by section 127 of the Constitution, may it be assumed that the following opinions still hold good: I. Opinion of the Attorney-General (Mr Deakin) dated 18 November 1902(1) II. Opinion of the Attorney-General (Mr Isaacs) dated 20 December 1905(2); and III. Opinion of the Secretary to the Attorney-General's Department dated 22 December 1905(3)?

(2) Should the persons resident in the Northern Territory and in the Territory acquired by the Commonwealth from the State of New South Wales under the provisions of the Seat of Government Act be included in the number of the people of the Commonwealth for the purposes of section 24 (i) of the Constitution, and if so, should they be excluded for the purposes of section 24 (ii)?

The approximate figures available would appear to indicate that the readjustment of representation may possibly be affected by the interpretation placed upon the law in these matters.

I have read the three opinions mentioned in the memorandum and, in my opinion, they still hold good.

I am of opinion that the scheme of representation provided for in section 24 of the Constitution and elaborated more fully in the Representation Act 1905 is not consis-tent with the counting of persons residing in Territories of the Commonwealth either for the purpose of ascertaining quota or for ascertaining the number of members of the House of Representatives to be chosen in each State.

Section 24 of the Constitution declares in the first paragraph that 'The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth' and the provision for ascertaining the quota, both in section 24 of the Constitution, and in section 10 of the Representation Act 1905, speaks again of 'the people of the Commonwealth'.

The inhabitants of the Northern Territory were, before 1 January 1911, part of the people of the State of South Australia, and also part of the people of the Common-wealth. From 1 January 1911, they ceased to be part of the people of the State of South Australia; and since the Northern Territory is still part of the Commonwealth, they re-main, in the ordinary sense of the words, part of the people of the Commonwealth.

But whether they are part of'the people of the Commonwealth' within the meaning of section 24 of the Constitution must be determined from a construction of the whole Constitution.

Section 24 fixes a ratio of (approximately) 2 to 1 between the number of members of the House of Representatives and the number of senators; and makes provision (alterable by Parliament) for calculating the number of members to be chosen in each State in order to preserve that ratio.

The words 'chosen by the people of the Commonwealth' lead to the inference that the people referred to mean the people entitled to be represented in the House of Representatives.

Section 111 provides for the establishment of Federal territories upon surrender by the State and acceptance by the Commonwealth; and section 122 empowers the Parlia-ment to make laws for the government of any such territory, and to allow the represen-tation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

Section 111 provides for the establishment of Federal territories upon surrender by the State and acceptance by the Commonwealth; and section 122 empowers the Parlia-ment to make laws for the government of any such territory, and to allow the represen-tation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

Clearly, the Territory is not entitled to representation in either House unless the Parliament, by Act, expressly allows it.

So long as the Territory remains unrepresented, I think that for purposes of rep-resentation, and within the meaning of section 24, its inhabitants are not people of the Commonwealth.

I think also that the words 'the people of the Commonwealth' in the Representation Act must be given the same interpretation as in section 24.

The same considerations apply to the Territory of the Seat of Government.

I am of opinion therefore that the persons resident in the Northern Territory and in the Territory for the Seat of Government should not be included in the number of the people of the Commonwealth for the purposes of either paragraph (i) or paragraph (ii) of section 24 of the Constitution.

It might however be desirable in view of the new situation which has arisen by reason of the transfer of the Northern Territory and the Territory of the Seat of Government, to amend the Representation Act so as to make it explicit on this point.

[Vol. 9, p. 121]

(1)Opinion No. 111.

(2)In the opinion, not published [Vol.5,p.129],Mr. Issac approved proposals for instructions to the statisticians of the Commonwealth and States-

  1. 'as to which races resident in the respective states shall be excluded from the reckoning' and
  2. 'to exclude allfull-blooded aboriginals and persons in whom there is a preponderence of aboriginal blood, and to include half-castes and others in whom there is not a preponderence of aboriginal blood'.'

(3)In the opinion, not published[Vol.5,p.131], Mr Garran applied the principles of Opinion No. 111 dealing with the position in Queensland to that obtaining in western Australia and went to say, in respect of the position in South Australia:

'In south Australia, section 16 of The Electroral Code 1896 provides that:

"In the northern Territory immigrants under the indian immegration Act 1882 and all persons except natural-born British subjects and Europeans or Americans naturalized as british subjects, are disqualified from voting"

This section has not previous beed advised upon, but in my opinion, seeing that the disqualification is limited to the Northern Territory, and is not universal throughout the State, section 25 of the Constitution has no application .'