Burnum Burnum v Electoral Commissioner of New South Wales

Burnum Burnum, an Aboriginal Australian, sought a declaration that he was entitled to vote in the New South Wales state election, and that the Electoral Commissioner of New South Wales was under a duty to enrol him. The matter came before the Supreme Court of New South Wales, Court of Appeal.

The central legal issue was whether the Electoral Act 1992 (NSW) discriminated against Aboriginal Australians by requiring them to have resided in Australia for one month prior to enrolment, a requirement not imposed on other Australians. Burnum Burnum contended that this provision was invalid as it contravened the Racial Discrimination Act 1975 (Cth), which prohibits racial discrimination.

The Court of Appeal held that the Electoral Act 1992 (NSW) did not contravene the Racial Discrimination Act 1975 (Cth). The Court reasoned that the one-month residency requirement applied to all persons seeking to enrol, regardless of race. While Aboriginal Australians might have historically faced unique challenges in establishing residency, the provision itself did not create a distinction based on race. Therefore, the Act did not enact or enforce a prohibition or restriction based on race, and thus did not contravene section 9(1) of the Racial Discrimination Act 1975 (Cth).

The appeal was dismissed.