Opinion Number. 480

Subject

ELECTORAL ENROLMENT PERSON HAVING RIGHT TO VOTE AT STATE ELECTIONS : EXTENT OF DISQUALIFICATION ON GROUNDS OF RACE

Key Legislation

CONSTITUTION, s. 41 : COMMONWEALTH FRANCHISE ACT 1902

Date
Client
The Secretary, Department of Home Affairs

A draft of an Electoral Handbook proposed to be issued by the Electoral Office for public information has been referred to me for review and advice as to whether the law has been fairly stated.

I have perused the draft and I think that, except as regards the following matters, the effect of the law is correctly stated.

On page 4, in reference to section 41 of the Constitution, it is stated that a right under that section must have been acquired prior to the passing of the Commonwealth Franchise Act. I think it is very doubtful whether this statement correctly expresses the law. Section 41 is a very difficult section to construe, and it can only affect the rights of very few persons. Its exact interpretation is not, therefore, a matter of much import-ance and, as it may be accepted as settled law that the section does not entitle any per-son to vote whose name is not on a Commonwealth Roll, I think the statement might be omitted, and a statement to the effect following inserted in its place:

(a) It has been held that a right under section 41 of the Constitution which provides that-'No adult person who has or acquires a right to vote at elections for the more nu-merous 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 Par-liament of the Commonwealth'-does not entitle any person to vote whose name is not on a Commonwealth Electoral Roll. The section can, therefore, only extend to entitle a per-son, (who but for section 41 would be disqualified) to obtain enrolment in cases where he has acquired a right to vote at elections for the more numerous House of a Parliament of a State.

Paragraph (m) on page 5 appears to me to be too widely stated. Strictly speaking there is no race disqualification in the Franchise Act. Aboriginal natives of Australia, Asia, Africa, and the Islands of the Pacific (except New Zealand) are disqualified from having their names placed on an Electoral Roll, but to be an aboriginal native of a place a person must be born in that place. The effect is that persons of Asiatic race born in Australia are not disqualified. I would suggest that paragraph (m) be omitted and the following paragraph inserted in its place:

(m) A person being an aboriginal native of Australia, Asia, Africa, or the Islands of the Pacific (except New Zealand) is not entitled to enrolment as an elector, notwithstanding that he is a natural-born or naturalized subject of the King, unless he is so entitled under section 41 of the Constitution. (See explanatory note (a).)

[Vol. 10, p. 472]

  1. Date in Opinion Book Incomplete.