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High Court of Australia|1923-07-01|Before: Per Higgins J

THE COMMONWEALTH ELECTORAL OFFI- CER FOR THE STATE OF WESTERN RESPONDENT AUSTRALIA t ' i ' : :

ON APPEAL FROM A COURT OF PETTY SESSIONS OF WESTERN AUSTRALIA.

H.C. or A. Blectoral Law (Commonwealth) - Commonwealth Parliament - Right to enro 1923. electoral roll - Aboriginal native of Asia or Islands of Pacific - Japa 5 Naturalized person - Effect of enrolment on roll for Legislative Assem

Sept. 19, 21. Vict. c. 12), sec. 41* - Commonwealth Electoral Act 1918-1922 (No. 2 1918 - No. 14 of 1922), sec. 39 (5)* - Hlectoral Act 1907 (W.A.) (No. Pion 1907), secs. 17, 18 * - Naturalization Act 1903-1917 (No. 11 of 1903 Poe 25 of 1917), secs. 4, 8 - Evidence Act 1906 (W.A.) (No. 28 of 1906), sec.

Practice - High Court - Appeal from inferior Court of State exercising Fe jurisdiction - Extension of time for appealing - Court of Petty Sessic

1920 (W.A.) (No. 11 of 1902 - No. 28 of 1920), secs. 197, 206b.

Sec. 41 of the Constitution is as Electoral Act 1918-1922 provides follows: "No adult person who has or "No aboriginal native of Austr acquires a right to vote at elections for _Asia, Africa, or the Islands of the P the more numerous House of the Par- (except New Zealand) shall be ent liament of a State shall, while the right - _to have his name placed on or re continues, be prevented by any law of on any roll or to vote at any Se the Commonwealth from voting at election or House of Representat elections for either House of the Par- election unless so entitled under secti liament of the Commonwealth." forty-one of the Constituti

Sec. 39 (5) of the Commonwealth Sec. 17 of the Electoral Act 1

Held, that an aboriginal native of Asia or the Islands of the Pacifie who was H.C. oF A.

naturalized within the meaning of the Naturalization Act 1903-1917 is, under 1923. sec. 18 of the Hlectoral Act 1907 (W.A.), disqualified from voting at an election = Inobwithstanding that he has pursuant to sec. 17 been enrolled as an elector, MuRAMATS and therefore that he is not within the protection of sec. 41 of the Constitution, Common- and accordingly is disqualified by see. 39 (5) of the Commonwealth Electoral WEALTH 'Act 1918-1922 from being enrolled or voting at an election for the Senate or PRECTORAT House of Representatives. (Ww.

Held, also, that a Japanese born in Japan is an aboriginal native of Asia or the Islands of the Pacific within the meaning of sec. 39 (5) of the Common- wealth Electoral Act 1918-1922 and see. 18 of the Electoral Act 1907 (W.A.).

Per Higgins J. Where an appeal from a Court of Petty Sessions of Western Australia to the High Court is brought by way of order to review, the High Court may, under Order LIIL., r. 6, of the Rules of the High Court, enlarge the time " for obtaining the order nisi notwithstanding that the time limited by sec. 197 of the Justices Act 1902-1920 (W.A.) has expired.

aL from a Court of Petty Sessions of Western Australia.

'At the Court of Petty Sessions at Perth a complaint was heard reby Jiro Muramats alleged that on 3rd May 1923 H. R. Way, 1e Commonwealth Electoral Officer for the State of Western Aus- , rejected the claim of Jiro Muramats to have his name enrolled

ne of the Division of Kalgoorlie of the State of Western Aus- , and applied for an order directing that his name be enrolled ch officer under the provisions of sec. 58 (1) of the Common- Electoral Act 1918-1922. At the hearing it was admitted that complainant was a Japanese born in Japan, and had been uralized in Victoria; and that an order had been made by the ve Magistrate at Roebourne directing that the complainant

A.) provides that "(1) Subject continues to reside in the district for

disqualifications hereinafter set every person not under twenty-one of age, who (a) is a natural-born subject of His Majesty ;

" | (b) has resided in Western Aus- for six months continuously ; and resided in the district for which

the date of his claim, shall be ed, subject to the provisions of Act, to be enrolled as an elector,

which he is enrolled, to vote at the election of a member of the Legisla- tive Assembly for that district." "Sec. 18 provides that " Every person, never- theless, 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 of the Islands of the Pacific, or a person of the half-blood."

should be placed on the roll of electors for the more numerous

of the Parliament of Western Australia, and that he was so enrol The Police Magistrate, on 19th June 1923, dismissed the appli stating that a man of Japanese race born in Japan must, absence of evidence, be held to be an aboriginal native of the Pacific Islands; that under see. 39 (5) of the Commo Electoral Act the complainant was not entitled to be enrolled or to: at a Commonwealth parliamentary election unless he was prote, by see. 41 of the Constitution ; and that that section did not him, because, in spite of his name being upon the State roll, he disqualified from voting by the Electoral Act 1907 (W.A.) by . of his being an aboriginal native of Asia or the Pacific Islands. From that decision the complainant now appealed to the Court by way of order to review. 3 By the order nisi to review (which was made by Higgins J. 0 4th September 1923) it was also ordered that the time for ma the application for an order to review should be extended. Other material facts are stated in the judgment of Higgins hereunder. F

Le Mesurier, for the appellant. The Police Magistrate at Ri bourne having enrolled the appellant, he was entitled to vote und sec. 17 of the Electoral Act 1907 (W.A.). Although the appell was born in Japan he is not an aboriginal native of Japan. (8 the definition of " aboriginal" in the Oxford Dictionary ; Bvidenc Act 1906 (W.A.), No. 28, sec. 72; Taylor on Evidence, 10th ed. 19, sec. 18; Taylor v. Barclay (1); Encyclopedia Britannica, ed., vol. 1., pp. 67, 441; vol. xv., p. 165.) Under the Naturaliza Act 1903-1917, sec. 8, the appellant is entitled to vote and has t qualifications therein referred to, and does not come within sec. of the Western Australian Act.

Kyox ©.J., Gavan Durry anp Srarke JJ. In this case we do ot think it necessary to decide whether this Court has jurisdiction

shen the time limited for applying for an order nisi to review that ion had expired, it could be extended ; for we are clearly of

cerns J. This is an order to review a decision of a Police Magis- rate at Perth, exercising Federal jurisdiction. The Police Magis-

ec, 4); and he is entitled to all political and other rights of a natural- British subject (sec. 8). But, of course, even a natural-born British subject must comply with the provisions of the Common- h electoral laws as to enrolment on the electoral roll.

al from that order. In September 1922 Muramats applied to Commonwealth Electoral Officer to be enrolled on the Common- alth electoral roll; the officer refused; and, on appeal to the olice Magistrate at Perth, the appeal was dismissed.

The appellant relies on sec. 41 of the Constitution of Australia : No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State " (the Legislative Assembly) " shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either e of the Parliament of the Commonwealth." The Common- wealth Electoral Officer contends that, although the appellant has established against the State his right to be on the roll for the Legis- lative Assembly, he has not shown that he has a right to vote for

entertain an appeal from the decision of the magistrate or whether, \i:440 1D}

cS Mvramars v Common WEALTH Execrorar Orricer (W.A.).

the Assembly, within the meaning of sec. 41 of the Constituti The question turns mainly on the meaning of secs. 17 and 18 of t Western Australian Electoral Act of 1907. By sec. 17, " subject tot disqualifications hereinajter set out, every person not under twenty- years of age, who (a) is a natural-born or naturalized subject. His Majesty ; and (b) has resided in Western Australia for | months continuously ; and (c) has resided in the district for wl he claims to be enrolled for a continuous period of one mo immediately preceding the date of his claim, shall be entit subject to the provisions of this Act, to be enrolled as an elector, and when enrolled, and so long as he continues to reside in district for which he is enrolled, to vote at the election of a mem| the Legislative Assembly for that district." Now, Muramats h fulfilled all the conditions stated in this sec. 17; and if the seetion were not "subject to the disqualification hereinafter set out," hi right to vote at elections for the Assembly, and therefore to enrolled on the Commonwealth roll, would seem to be clear, B

fied from being enrolled as an elector" (for a Western Australiat election), "or, if enrolled, from voting at any election, who" (a) is 0 unsound mind ; (b) is dependent on the State for relief, &e. ; (¢) been convicted &e. ; ' (d) is an aboriginal native of Australia, Asi Africa, or the Islands of the Pacific, or a person of the half-blood The plain meaning of this sec. 18, unless it can be qualified in th light of other sections, is that even if by some means Muramats h become enrolled on the State roll he is, nevertheless, not entitled t vote at an election for the State Assembly, if he is an aborigin native of Asia, the Pacific Islands, &c. This reading seems to neg i the provision in sec. 17 that any person who is enrolled is " enti to vote"; and if one could find a meaning for sec. 18 which wo reconcile it with sec. 17, that meaning ought to be adopted. sec. 17 is expressly enacted as "subject to the disqualificatic hereinafter mentioned": sec. 18 dominates sec. 17. Moreo sec. 118 shows that a person may be on the roll, and yet not entitlec to vote. For, under sec. 118, the presiding officer at an election can put to a person on the roll this question (amongst others) :

e you disqualified from voting?" If the answer be "No," the H- C. oF A.

61, the Court of Disputed Returns may inquire whether the vote Muramars

Under these circumstances, I am of opinion that Muramats has not established what is necessary under sec. 41 of the Constitution, tt he has a right to vote for the Legislative Assembly ; and that, fore, he cannot claim Commonwealth enrolment by virtue of . 41. Under sec. 39 (5) of the Commonwealth Electoral Act 1918- 2 no aboriginal native of Australia, Asia, or the Islands of the Pacific, &c., is entitled to have his name placed on the Common- ith roll or to vote "unless so entitled under section forty-one of the Constitution," and Muramats is not entitled under sec. 41. Perhaps I ought to say that I have considered the effect of the decision of the Roebourne Police Magistrate, under the State Act. Not only did the magistrate place the appellant on the State roll, but he found (par. 2 (c) of the affidavit) "that it was not proved that Mr. Muramats was an aboriyinal native of any country." suming (not deciding) that this finding on which the order was sed is conclusive as against the State electoral authorities, it is inly not conclusive against the Commonwealth authorities. they were not parties to the proceedings at Roebourne.

'his opinion as to sec. 41 of the Constitution makes it necessary y consider whether it is established, by the evidence in this case, hat Muramats is an " aboriginal native of Asia or the Islands of the ific" within the meaning of sec. 39 (5) of the Commonwealth ectoral Act. I accept Mr. Le Mesurier's argument that the burden f proof of this fact rests on the respondent. But the burden of roof shifts when it is admitted, as here, that Muramats was born

Japan and is a Japanese. It is not sufficient for him even to show his race is not " aboriginal" to Japan ; he must show that it is not aboriginal to Asia or the Islands of the Pacific. For the pur- of proof, Mr. Le Mesurier wants to use articles in the Encyclo- edia Britannica on " Aborigines," " Ainu," "Japan." He refers us the Western Australian Evidence Act 1906, sec. 72: " All Courts persons acting judicially may, in matters of public history,

literature, science, or art, refer, for the purposes of evidence, to published books, maps, or charts as such Courts or persons consid to be of authority on the subjects to which they respectively relat This section, according to the marginal note, is taken from a 5, sec. 42. It certainly goes further the English law; but how far is uncertain, It does not say

we are to take judicial notice of Japanese history, or pre-hi It is left doubtful whether the books should not be put in evidene doubtful also whether events which took place in Japan hundre; of vears ago can be treated as matters of " public history "' - as dis tinguished from speculative or conjectural history. But, assumi that we may consider the articles on this appeal, the results

negative. Under the article "Japan," it appears that a learn

of the Manchu-Korean type in Japan descended from Kore colonists who, in pre-historic times, settled there ; and that men the Mongol and the Malay type settled there also; but that befor that time there was a tribe of immigrants who appear to have cross over from north-eastern Asia - the Ainus - "' usually spoken of the aboi

ial inhabitants of Japan." That means, of course, the point of view of the present Japanese, who are the result of a1 amalgamation of races. Under "* Ainu," it is said that little is known but it is improbable that they are, as h

been urged, the aborigines of Japan. '* The most accurate researche

go to prove that they were immigrants, who reached Yezo from the Kuriles, and . . . colonized . . . exterminating a race of pit-dwellers."" Under " Aborigines," we find that the word was first applied to a mythical people of central Italy, whom Cato regarded 8 Hellenic immigrants, " In modern times, the term 'Aborigines' been extended in signification, and is used to indicate the inhabitant found in a country at its first discovery, in contradistinction to coloni or new races, the time of whose introduction into the country is This is not material on which Courts can act in applying: an Australian statute. In my opinion, the word " aboriginal" in sec. 18 of the Blectoral Act of Western Australia, and in sec. 39 (5) of the Commonwealth Electoral Act, means " aboriginal" in the vernacular"

Australia or Western Australia. Whom would Australians treat as

the adjective " aboriginal " is said to mean " first or earliest so far as

story [not pre-history] or science gives record" ; but it is said to ival of later is defined as

(European) colonists." The substantive "aboriginal "

an aboriginal inhabitant of any land, now usually as distinguished

from subsequent European colonists." In other words, those are aboriginals (for Australian Acts) who are of the stock that inhabited the land at the time that Europeans came to it. It may be, as some ert, that there was a race peopling Australia before those whom we call " the Australian aborigines," and that the Tasmanian blacks were the remnant of that race, driven from Australia; it may be that before the present Japanese came to Japan there was a previous race called " Ainus," and again before them pit-dwellers ; but such a fact would not prevent the present Australian black people from ing the aborigines of Australia from the point of view of white lers or of Australian laws, or prevent the present Japanese from the aborigines of Japan as contradistinguished from the Europeans and Americans who have settled in Japan in and after e nineteenth century. In my opinion, Japanese persons, born in

In making the order nisi to review, I had at first a doubt as to my power to make it after the expiration of the one month allowed (unless the time were enlarged) by the Western Australian Justices Act 1902-1920 (sec. 197). The decision of the Perth magistrate was given on 19th June 1923 ; and the order nisi is dated 14th September ent. But no objection has been taken on this score; and, in my opinion, the enlargement of the time is justified ke our Appeal Rules, Sec. 1V., rr. 1,7, and See. IIL. ; High Court Rules, Order UIL, x. 6; Justices Act 1902-1920 (W.A.), sec. 206b. The case of Delph Singh v. Karbowsky (1) does not apply to this case ; for there

boriginal natives of Australia or of Asia ? In the Oxford Dictionary Moramvrs

the difficulty arose from the provision in See. IIT., r. 12, that an should be deemed to be '"' abandoned" if security were not within three months after the service of notice of appeal. H there was not, and could not be, any service of such notice till tl order nisi was made. :

For these reasons I agree that the order nisi should be discha with costs.

It is satisfactory to find that the appellant is not prevented b his technical slip from getting the substantive question settled.

Solicitor for the appellant, C. J. R. Le Mesurier, Perth. Solicitor for the respondent, Gordon H. Castle, Crown Solic for the Commonwealth, by Dwyer, Unmack & Thomas, Perth.

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