A Letter from the Race Discrimination Commissioner

8 February 1989
The Hon Lionel Bowen MHR
Attorney-General's Department
Parliament House
Canberra ACT 2600

Dear Sir,

I wish to draw your attention to a matter which has arisen as a result of an enquiry which I received, that is, whether the continuing right to vote of enrolled British subjects who are not Australian citizens under Section 93 of the Commonwealth Electoral Act 1918 may be inconsistent with the Racial Discrimination Act 1975. In my opinion there does appear to be such an inconsistency and I recommend that consideration be given to amending the Electoral Act on that basis.

On 7 April 1977 an officer of the Attorney-General's department advised the Australian Electoral Office that the Electoral Act did not discriminate on the grounds of race, colour or national and ethnic origin. That advice relied on the House of Lords decision in Ealing London Borough Council -v- Race Relations Board (1972) AC 342 which held that the term "national origin" in the British Race Relations Act 1968 referred to "national in the sense of race not citizenship". The effect of this decision was overruled the following year by legislative action – the Race Relations Act 1976 now expressly includes the term "nationality" in its grounds of discrimination. I believe that a strong argument can be made that the Ealing decision should not be followed in Australia.

If nationality is a ground for discrimination under the Australian Racial Discrimination Act 1975, the criterion of British subject status would appear to be one based on nationality. Nationals of some countries are included, while other nationals are excluded from British subject status.

The Ealing decision concerned a policy which discriminated between citizens and non-citizens. The international covenant upon which the Racial Discrimination Act is based does not define such laws or policies as discriminatory. However it does state directly that discrimination between non-citizens on the basis of nationality in legal provisions concerning citizenship is examinable (Article 1 (3)). The right to vote does of course have a close connection with rights of citizenship.

In my opinion it is now timely to review the relevant provisions of the Commonwealth Electoral Act 1918 to establish consistency with Section 10 of the Racial Discrimination Act 1975, particularly in light of the current commitment the Prime Minister and the Government to encourage all Australian residents to become citizens.

The recommendation to me was that all persons on the Electoral Roll automatically become Australian citizens. While this may not be the preferred option, you might note that should a successful challenge by a non-citizen who is not a British subject be made under the Racial Discrimination Act 1975, the apparent result would be that all non-citizens would become eligible to vote.

I refer this matter for your attention and comment.

Yours faithfully,

(signed)

Irene Moss
Race Discrimination Commissioner