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Aboriginal identity: legislative, judicial, and administrative definitions.

In this paper it is not proposed to canvass the various theories which sociologists and political scientists have formulated to explain the process by which laws are made. My intention is to show how the same expressions to define or describe Aborigines as special subjects of special laws, or as special subjects by uneven and unequal operation of the same law, recur, but in different legislatures and different areas, and on widely differing time-scales. In doing so, the effect on policy may be seen more easily.

Legal definitions

In my PhD analysis of 700 separate pieces of legislation dealing specifically with Aborigines or Aboriginal matters--or other seemingly non-Aboriginal matters--no less than 67 identifiable classifications, descriptions or definitions have been used from the time of white settlement to the present. More recent legislation has added to the corpus or descriptions of definitions but without clarifying their meaning (as, for example, the definition of `Aboriginal person' in the Aboriginal and Torres Strait Islander Commission Act 1989 (Cwlth) as being `a person of the Aboriginal race of Australia').

These classifications may be grouped under six broad headings according to:

* anthropometric or racial identification;

* territorial habitation, affiliation or attachment;

* blood or lineal grouping, including descent;

* subjective identification;

* exclusionary and other; and

* Torres Strait Islanders.

The list is not necessarily exhaustive, and some definitions, such as `Aborigine', have what I call `multi-factor' references. These are categories of persons, or classes answering a legislative description, which are or are deemed to be within that framework. Professor Rowley in 1970 asked, and then answered, the question `Who is an Aboriginal?' in Appendix A of his The Destruction of Aboriginal Society. Some of my analysis in this paper traverses the same ground, but his analysis stopped at 1967 and started at about 1905. Nearly all of the nineteenth-century legislation was ignored, but historic parallels formulated under markedly different socio-political conditions persisted well into the twentieth century, a feature not sufficiently brought out by Rowley. For some states, therefore, Aboriginal policy, and its legislative expression, remained static and immured, entrenched by perceptions inapplicable to modern times and conditions.

Commonwealth

Prior to the 1967 referendum, the Australian Constitution referred to Aborigines at two places, both in negative terms. In section 51 (xxvi), the Commonwealth was given legislative power other than for `the aboriginal race in any State'; and in section 127 `aboriginal natives' were not to be counted in reckoning the numbers of the people of the Commonwealth, or of a state. At a number of places in the Constitution, `people' is used in a quantitative sense: to determine representation (s.24), and allocation of expenditure debits (s.89 (ii)(b)). At other places, `person' is used for acquisition of property (s.51 (xxxi)) or appointment of deputies to the Governor-General (s.126). So the fundamental machinery of governance comprehended both terms. Yet `aboriginal natives' rather than `the people of any race' or `the people of the aboriginal race' was used in section 127. It is almost as if the framers of the Constitution unconsciously rejected human attributes in contemplating `aboriginal natives'.

There are four significant features that need emphasising:

(a) The states, both during the constitutional conventions (1891, 1897 and 1898) and at federation, were left in effective control of their Aboriginal populations, unfettered by a clear and present Commonwealth power.

(b) It was not known how many `aboriginal natives' existed, the enumeration in the several states and New Zealand proceeding in incomplete and inconsistent fashion. In Western Australia, for example, only `civilised Aborigines' were included; there and in Victoria, `half-castes' also were enumerated. In Tasmania, the last `full-blood' male having died in 1869, and the last `full-blood' female in 1876, only `half-castes' were counted. All states counted their `native' population as at 1891, except Queensland, whose base date was 1881.

(c) The Aborigines generally were considered a dying race, whose inclusion in the people of the Constitution was not only unnecessary but likely to create future problems of proportional representation.

(d) The convention debates are replete with thinly disguised expressions of contempt for non-Caucasoids, and particularly Australoids.

The birth of a supposedly free, liberal and democratic nation--all of whose inhabitants were `subjects of the Queen' under the Constitution (s.117)--was therefore attended by illiberal sentiment, legislative prescriptions, and denial of basic democratic rights and freedoms solely on the grounds of racial antecedents or association.

The dominant expression in other Commonwealth legislation was `aboriginal native of Australia'. That reference first appeared in 1902 in the Commonwealth Franchise Act and was last used in 1973 in the Aboriginal Affairs (Arrangements with the States) Act. Curiously, it was not defined until the National Service Act 1951 and then the legislation left it to be defined by regulation. Accordingly, almost from the outset, Commonwealth legislation quite deliberately refrained from providing an unambiguous and consistent meaning to the expression. The policy motive was laissez-faire in relegating to administrative action the formulation of an acceptable reference. Doubtless, the absence of any direct Commonwealth constitutional responsibility for Aborigines induced such a motive, The states until 1911, and the states and territories thereafter, had responsibility for their Aboriginal and `half-caste' population, which relegated Commonwealth interest and responsibility to one of patronage.

A distinction based on colour or blood first appeared in Commonwealth legislation in the first year of the Commonwealth. The twelfth Commonwealth Act--the Post and Telegraph Act 1901--forbade any Commonwealth contracts or arrangements for the carriage of mails which did not contain a condition `that only white labour shall be employed in such carriage' (s.16(1)), a provision repeated the next year in the Excise Tariff. Specifically anti-black legislation followed. The Sugar Bounty Act 1905 provided a bounty for sugar cane or beet produced by `white', but not `coloured', labour. `Coloured labour' was defined to include `half-caste' and `full-blood', but the Act excluded `full-blood' and, with special permits, `half-caste' Aboriginal labour from its purview. Accordingly, legislation could create artificial barriers based on blood and descent to confer on or deny to third parties a benefit or privilege. The Commonwealth was prepared to accept such barriers created by individual states, even if it meant uneven results between states. The Commonwealth Electoral Act 1918 provided for a Commonwealth franchise if the individual Aborigine was qualified to vote by state legislation; the Invalid and Old-Age Pensions Act 1942 provided for those pensions to be paid to `exempt' Aborigines.

In 1964 a reference to the Aboriginal `people of Australia' first appears in legislation establishing the Australian Institute of Aboriginal Studies, and was used in 1968, 1969 and 1975. Even so, the former reference continued in use for a further nine years. The concept of `race' was first expressed in the Aboriginal Enterprises (Assistance) Act 1968 and was used again in 1975-76, 1978-79, 1978-80, 1982 and 1989.

At given stages, an `Aboriginal' could be a member of a `people', a `race' or one of the `natives' or `native inhabitants' of Australia. Further, Commonwealth regulations made under the National Service Act 1951 fully described Aboriginality in terms of admixture of blood. Under Commonwealth law an Aborigine might acquire a legal status for some purposes but not others, according to the reach of legislation.

The Australian states and territories--generally

The states, and later the territories, defined Aborigines mainly by blood. The word `Aborigine' in its primary etymological sense described the inhabitants of a country--ab origine, that is, from the beginning--and so means the earliest known inhabitants. A secondary meaning refers to the natives found by European colonists in possession of a country. Australia, however, has given a third popular meaning to describe the natives indigenous to it. Much of the colonial legislation described those natives by reference to habitation (`aboriginal natives of New South Wales and New Holland'), but increasingly it described them in terms of the admixture or preponderance of their blood. The proliferation of children having `white blood' in their veins, and the decline of the `full-blood' population, prompted a legislative response to redeem the former and protect the latter.

New South Wales legislation first referred to `half-castes' in 1839, South Australia in 1844, Victoria in 1864, Queensland in 1965, Western Australia in 1874, and Tasmania in 1912. Thereafter and until the late 1950s, the definition of Aboriginality by blood was the standard test. Inclusion or exclusion of persons reflected the quantum of `black' blood and not individual merit, achievement, lifestyle or other form of endowment.

Each state was free to pursue its own policies towards Aborigines, such that uniformity of expression, content and application was all but impossible. For example, an `Aborigines Act', however described, was first enacted in New South Wales only in 1909; in Queensland in 1897; in South Australia in 1911; in Western Australia in 1886; in Victoria in 1869; and in Tasmania there was none. The Northern Territory had such legislation in 1911, and the Australian Capital Territory relied on the New South Wales Act of 1909 until its own legislation was enacted in 1954.

The Victorian Aborigines Protection Act 1869 is instructive. Section 8 of the Act deemed as Aboriginal `every aboriginal native of Australia', every `aboriginal half-caste' and any child of such `half-caste' associating and living with Aborigines. A form of `guilt by association' brought the subject within the reach of the Act. In the absence of any proof as to status, any justice (of the peace) could form a subjective view as to whether or not any person was an Aborigine. The first Act in Australia set the pattern for all other states. First, the notion of blood, however descended; secondly, the mode of living; thirdly, the extended reach of legislation by use of `deeming' provisions; and finally, the grant of broad discretionary power to a person in authority without proper legislative safeguards; all these created a legal status accorded no others in the several states.

Subsequent legislation refined the definition in a way which extended bureaucratic discretion over a wider range of subjects and minimised external or individual `interference'. For example, the South Australian legislation of 1911 included a `half-caste' child under 16; the Northern Territory Ordinance of the same year included not only a `half-caste' child under 18, but a female `half-caste' not legally married to `a person who is substantially of European origin or descent and living with her husband'. There were no definitions of `European' nor of `substantially', it being left to regulation to implement. The 1924 Aboriginals Ordinance (No 2) extended the definition to include `half-caste' males below the age of 21; it was extended again in 1927 to those males `whose age exceeds twenty-one years and who, in the opinion of the Chief Protector, is incapable of managing his own affairs and is declared by the Chief Protector to be subject to this Ordinance'. The emphasis is constantly on extending the class of persons subject to the Ordinance, and on expanding the discretionary power of the Chief Protector or other senior official. The 1936 amendments to the Ordinance provided for a declaration of exemption of `half-castes' and for a revocation of such declaration.(1)

Thus, an artificial status could be created, removed and reimposed at the behest of officialdom: this was extended in 1943 to `full-bloods' in the Northern Territory.(2) The definition of `half-caste' was omitted in 1953, but the status of `part Aboriginal' created.(3) These legislative sleights-of-hand were removed in the Northern Territory in 1957 with the commencement of the Welfare Ordinance 1953. That ordinance created the legal class of `ward', being a person declared by the Administrator to stand in need of the special care and assistance afforded by the Ordinance. The Ordinance automatically created as a class of persons not liable to be declared those who were, or would be enrolled or entitled to be enrolled as, voters, or were spouses of those persons. In other words, the only classes of persons who could be declared were Aborigines. What criteria attended and presupposed a declaration? Section 14(1) referred to that person's manner of living, his inability adequately to manage his own affairs, his standard of social habit and behaviour, and his personal associations. An appeal against declaration could be brought but the onus of proof was on the `ward' to demonstrate that he satisfied the criteria. In fact, the then Administrator made an en bloc declaration two days after the Ordinance commenced by which, in the Northern Territory, 15,211 persons were declared wards. Even though the Ordinance spoke of `his' manner of living in terms of individuality, the High Court upheld the en bloc declaration by the Administrator in Namatjira v. Raabe.(4)

New South Wales

New South Wales legislation in 1901 defined Aborigines as `an aboriginal native of New South Wales', but in the 1905 legislation used the definition `aboriginal native of Australia'; that definition included not only `full-bloods' and `half-castes' but `any person apparently having an admixture of aboriginal blood' and either in receipt of assistance from the Aborigines Board or resident on an Aboriginal reserve. The former definition was given in the Vagrancy Act, and the latter in and for the purposes of the Liquor (Amendment) Act.

Accordingly, the definition of a person's status could vary for reasons and purposes other than blood: it extended to a specific legislative purpose, contained within the body of an Act otherwise having general application. Even New South Wales introduced `exemption' provisions, in the Aborigines Protection (Amendment) Act 1943.

This brief recitation of extant statutory provisions shows the extent to which the legislators consciously created and sustained designated `blood' categories for legal purposes, and inserted specificity of de-categorisation. or `exemption' within a whole corpus of legislation.

Queensland

Early Queensland legislation seems to have used the expressions `aboriginal native', `aboriginal native of Australia', and `aboriginal' interchangeably; the aspect of habitation first comes in the Aboriginal Protection and Restriction of the Sale of Opium Act 1897, but there referred to habitation in Queensland. That was extended in 1965 to `indigenous inhabitant of the Commonwealth', although legislation that same year referred to `Aboriginal inhabitant of Australia'; the Aboriginal Relics Protection Act 1961 included Torres Strait Islanders in `the indigenous inhabitants of the Commonwealth' but they were excluded from that same reference in the Aborigines Act 1971 and the Local Government (Aboriginal Lands) Act 1978.

The Aborigines' and Torres Strait Islanders' Affairs Act 1965 created an entirely new species of Aborigine, distinguishing in turn `Aborigine', `part-Aborigine', `assisted Aborigine', `Islander' and `assisted Islander'. The definitions provided by the Act were by no means mutually exclusive. Thus, for example, an `Aborigine for the purposes of this Act' (emphasis added) was defined as any person coming within the category of

(a) a `full-blood' descendant of the indigenous

inhabitants of the Commonwealth;

(b) a person who has a preponderance of the blood of

an Aborigine within category (a);

(c) a part-Aborigine who lives as spouse with an

Aborigine within either of categories (a) or (b); and

(d) a resident of a reserve for Aborigines other than an

officer or other person (having no strain of Aboriginal

blood) authorised to so reside by the district officer,

provided that an Islander shall not be deemed to be an

Aborigine unless he is residing upon a reserve for

Aborigines otherwise than as a member of a community

comprised exclusively or predominantly of Islanders.

A `part-Aborigine' was the child of a category (a) Aborigine parent and whose other parent `has no strain of the blood of the indigenous inhabitants of the Commonwealth'. An alternative categorisation provided for both parents (not being Torres Strait Islanders) to have a strain of such blood so that the person defined himself had at least a 25 per cent strain but `not a preponderance of such blood'.

This serological nightmare was continued in similar vein in the definition of `Islander'. Five distinct categories of `assisted' Aborigines or Islanders were also provided, the most extensive being in respect of those declared by the director to be `in need of care' under the Act. The exercise of the director's powers required his prior consideration that the declaration be in the `best interests' of the person concerned. A declaration could extend to cover every member of a family unit, but did not include children subsequently born to an `assisted' person: they could themselves be made the subject of a separate declaration if under 17 and habitually residing with an `assisted' parent.

The status imposed on a parent was thus not the automatic birthright of their offspring, a result which was a distinct improvement on the status endured by American Negro slaves prior to the civil war. However, the imposition of such a status as a bureaucratic discretion rendered the distinction somewhat more marginal, not least in the loss of most legal rights to contract, to hold and dispose of property (real and personal), and freely to reside.

Western Australia

Between 1874 and 1936, Western Australia distinguished between Aboriginal natives of the `whole blood' and the `half-blood', sometimes by reference to the `native race' (1874) and (1883),(5) sometimes by reference to `aboriginal race' (1874) and (1943),(6) to the `Aboriginal race of Western Australia (1897),(7) to `Aboriginal native of Australia' (1886), (1893), (1899), (1907) and (1934),(8) until it replaced `Aborigine' with `Native' in the Aborigines Act Amendment Act 1936. The Act created another status, that of `quadroon', being `one-fourth of the original full-blood'. But `quadroons' were not subject to the legislation if they were under 21 and did not associate with or `live substantially after the manner of' `Natives'; but even then such a person, and one over 21, could be classified as a `Native' by order of a magistrate. In 1954 the Native Administration Act Amendment Act provided that all `Natives' could be deemed to be no longer a native for the purposes of the Act if they had served as members of the armed forces outside the Commonwealth or for at least six months within it and were entitled to an honourable discharge. The classification of `quadroon' was repealed in 1960.(9) Accordingly, the definition of `Native' was confined to `full-bloods' and greater than `one-fourth of the original full blood' until the blood test was replaced by the `descent-identification' test in 1972.(10) Even the latter test--of identification and acceptance as Aboriginal by the local community--was omitted from another Act in the same year.(11)

South Australia

As early as 1939, South Australia introduced the concept of descent `from the original inhabitants of Australia', an expression used again in 1962 and 1965.(12) That description in the last two Acts was given to a `person of Aboriginal blood'. The emphasis changed in 1972, but the blood-descent criterion was used again in 1979,(13) defining `aboriginal' as `wholly or partly descended from those who inhabited Australia prior to European colonisation'.

Tasmania

Tasmania's legislative references to Aborigines are sparse. The legislation constituting, continuing and then apportioning the Cape Barren Island reserve, for example, refers to `half-castes' by the family names of 53 people.(14) The National Parks and Wildlife Act 1970 defined `Aboriginal relic' by reference to its manufacture `by any of the aboriginal inhabitants of any of the islands contained within the state...'. The insertion of the reference to islands seems to predicate the total elimination of such relics elsewhere within the state. If so, the Act is eloquent testimony to the complete destruction of an entire culture on the mainland of that state. The final Act considered, the Aboriginal Relics Act 1975, defines a person of Aboriginal descent as `any person who has wholly or partly descended from the original inhabitants of Australia'.

Victoria

Victorian legislation defined or referred to Aborigines in a consistently variable fashion. The Lands Acts of 1862, 1869, 1884, 1890, 1901, 1915, 1928 and 1958 reserved crown lands `for the use or benefit of the aboriginal inhabitants'. The Fisheries and Game Statutes of 1864 and 1867, on the other hand, referred to an `aboriginal native of Australia', the reference to Australia being dropped in the Fisheries Acts of 1873, 1890, 1915, 1928 and 1958.

The Police Offences Statute 1865 provided for the punishment of vagrants `found ... wandering in company with any of the aboriginal natives of Victoria', but subsequent Acts deleted the territorial nexus.(15) The Masters and Servants Statute 1864 precluded the application of the Act to `any native of any savage or uncivilised tribe', a provision repeated in the Employers and Employees Act 1890.

The several Aborigines Acts increasingly refined the meaning of `Aboriginal'. The Aborigines Protection Act 1869 deemed as an `aboriginal within the meaning of this Act' every `aboriginal native of Australia' and any `half-caste' or child of such habitually associating and living with `Aboriginals'. As in the other states, a justice of the peace could decide `on his own view and judgment' if any person should be an `Aboriginal'. `Half-castes' therefore did not automatically attract the provisions of the Act except by their lifestyle or association. The next Act, in 1886, included `every half-caste aged 34' habitually associating and living with an Aborigine. The intent seems to have cut down the numbers of persons entitled to public rations and subsistence.

The 1886 provisions were repeated in the Aborigines Acts of 1890, 1915 and 1928, the Aborigines Act 1910 also permitting the Board for the Protection of the Aborigines to exercise in relation to `half-castes' the same powers as for `aboriginals'. `Person of aboriginal descent' first appears in the Aborigines Act 1951 which spelled out the policy aim of assimilation. The notion of descent was continued in the Aborigines Act 1958 and the Aborigines Affairs Act 1961.

Finally the Archaeological and Aboriginal Relics Preservation Act 1972 defined an Aborigine as an `inhabitant of Australia in pre-historic ages or a descendant from any such person'.

`Quarter-caste' and `quadroon'

The status of `quarter-caste' or `quadroon' was created by Western Australia in 1936; in the Native Welfare Act 1963 the definition of `native' excluded `quarter-castes' and the whole reference to blood did not disappear until the Aboriginal Affairs Planning Authority Act 1972. Queensland, on the other hand, introduced the concept of `quarter-caste' in the Aborigines and Torres Strait Islanders' Affairs Act 1965, and retained it for six years until the Aborigines Act 1971 redefined `Aborigine' by descent.

A comprehensive analysis of the legislation proffered is not possible in this paper. Nevertheless, it is possible to draw some conclusions from the materials cited:

(a) The legislation of the Commonwealth and the states and territories proceeded in haphazard, inconsistent, unwieldy and far-from-uniform fashion to construct an edifice and thereafter maintain and extend it by means of an artifice. The concept of `blood' required ever-closer formulation either to include, exclude or distinguish between the classifications provided.

(b) Where the legislation conferred benefits or imposed restraints and disabilities the machinery of implementation was either left to administrative or judicial discretion, or, as in the case of Queensland, assumed grotesque proportions.

(c) An artificial legal status could be imposed, withdrawn or re-imposed at the behest of one person in authority. I am not suggesting that such persons automatically and always were creatures of whim or caprice. The en bloc 1957 declaration of over 15,000 `full-blood' Aborigines as wards in the Northern Territory and the continuing indictment of Queensland's Aboriginal administration suggest otherwise.

(d) The policy aims of the legislation seemed self-defeating or inconsistent. The Aborigines Protection (Amendment) Act 1940 of New South Wales defined the duties of the newly created Aborigines Welfare Board as including the assimilation of Aborigines `into the general life of the community', an expression employed in the Victorian Aborigines Act 17 years later. South Australia expressed its policy as `integration' in the Aboriginal Affairs Act 1962. The Northern Territory Welfare Ordinance 1953 stated the duties of the Director of Welfare as the promotion of social, economic and political advancement, changed in the Social Welfare Ordinance 1964 to `relief from poverty or hunger ... and legal assistance'.

Queensland in the 1971 Aborigines Act provided regulatory machinery for, inter alia, `the development, assimilation, integration, education, training and preservation of Aborigines', as if, for example, `assimilation' and `integration' were complementary and not antithetical. Like the Bourbons, the Queensland legislation seems to have forgotten nothing and learned nothing.

(e) Within and between states, definitions of `Aborigine' operated differently, at different levels of subject matter, and advancing either in beneficence or in control. A new species of legal creature was created and sustained as a separate class, subject to separate laws and separately administered.

(f) This form of legal apartheid preceded that of South Africa by more than two generations, and continued on a different but parallel course for another three. The effluxion of time might have seen the success of government policy demonstrated with removal or dismantling of the more repressive definitions and provisions. But Victoria, for example, maintained the same legislative content for 60 years. Western Australia increased its controls by extending definitions in 1936, and Queensland did likewise as recently as one generation ago.

For Aborigines, therefore, the vacuity or bankruptcy of policy in some states was matched only by the ingenuity of others in extending the reach of legislative control. Those who escaped through having a lesser amount of `black' blood suddenly found themselves made subject to law; those who obtained exemption could lose it. `Half-castes' might be placed on the same footing with `full-bloods' for some purposes (testimony, liquor), but not others (reserves, guardianship of children).

The unequal provision and treatment of law even within extended Aboriginal associations mocked the notion of equality; when considered in the absence of any comparable law for whites, or even other colours, it evokes the Aristotelian dictum that `injustice arises when equals are treated unequally and also when unequals are treated equally'.(16) But how greater is the injustice when even unequals are treated unequally!

Judicial definitions

Surprisingly, there are few judicial pronouncements on `race' or `Aborigine' or `half-caste' or even the more extreme examples of race legislation such as `quadroon' or `assisted Aborigine'. Surprisingly, because the effect on the individual of falling within the scope of the legislation could be calamitous. Yet there were few challenges to Acts or sections of Acts. To my knowledge, moreover, no Aboriginal administrator in Australia ever prosecuted a tortious action as legal guardian for and on behalf of their wards. Should it be inferred from this wall of silence which enveloped Aborigines that there were no injuries, no injustices nor malpractices damaging them, and compensable at law? The Commonwealth Court of Conciliation and Arbitration in 1924 put the lie to this aspect. In a wage claim sought to be extended to Aboriginal workers, Powers J referred to the Aboriginal Ordinance prescribing wages as being `honoured in the breach--not in the observance of it--possibly because it is impossible to enforce it or because of the state of the industry'.(17) Certainly the lethargy of the administration in this regard could be described as monumental, at best, or criminally conspiratorial at worst.

Most challenges came from non-Aborigines, particularly from whites charged with supply of liquor to Aborigines. In Branch v. Sceats, for example, the NSW Supreme Court in 1903 held that a son of a `full-blood' father and a `half-caste' mother was not `an aboriginal native of Australia' within the meaning of the Liquor Act 1898 (NSW).(18) These words were applicable only to offspring of parents both of whom were themselves `aboriginal natives', that is, `full-bloods'. Only two direct challenges to their legal status were mounted by individual Aborigines in 180 years of subjection to white law; both were from the Northern Territory and were decided in 1961 and 1962, respectively. The result of the first (Jack Mulberry and Rosie Bin a Bu) is not known, although it would seem it was not successful. The 1962 appeal (Arthur Dingle) did, however, succeed.

In Muramats, the High Court of Australia ruled on the expression `aboriginal native of Australia, Asia, Africa or of the Islands of the Pacific' contained in s.17 of the Electoral Act 1901 (WA). The appellant, a Japanese born in Japan, but a naturalised citizen, claimed to be entitled to Commonwealth franchise. That franchise in turn predicated a similar right under state law. The High Court held that the word `aboriginal' must be construed in the vernacular sense; further, that `the present Australian black people' are `the aborigines of Australia from the point of view of white settlers or of Australian laws'.(19)

Judicial support for the popular or vernacular meaning can also be found in Ofu Koloi v. The Queen(20) and Re Bryning(21). In the first case, the High Court in 1956 had to construe the words `European' and `native' appearing in the (Papua) Evidence and Discovery Ordinance 1913-1952. The Court held that the words are not used in any scientific or technical sense but in a broad and vernacular sense, as understood by the persons to whom they are addressed. In Re Bryning the Court in 1976 was called upon to interpret the deceased's bequest `for the benefit of Aboriginal women'. The Court noted that the word `Aboriginal' was probably much more widely used in Australia than in other English-speaking countries. It emphasised the popular meaning of the word to describe persons in groups or societies irrespective of the admixture of `blood'.

The proper meaning of `aboriginal native of Australia' as defined in the National Service Regulations was considered in Spitz v. Eades, an unreported 1971 decision of a Court of Petty Sessions in Western Australia.(22) The Court there considered a claim for exemption from national service by an Aborigine, and held that a person who has an admixture of Aboriginal blood does not come within the definition of that description. To claim exemption he had to establish on the balance of probabilities that he had lived as `an aboriginal native' or among Aborigines; the latter required either actual residence with them or the proof of a nomadic lifestyle. A person could not be held to be living as `an aboriginal native' when it was shown by evidence that he was living in a house situated amongst those occupied by white citizens of Australia, was generally in regular employment and had been so during the previous five years, owned his own car, travelled to Perth three times a year to visit friends and relatives, conducted himself in a manner acceptable to responsible white citizens of his area, dressed well, and was able satisfactorily to speak the English language. His `marriage' to a de facto wife of even lesser `Aboriginal blood' and their residing with their children in an ordinary white community was a stronger factor negativing his falling within the purview of the legislative exemption. This case demonstrates the worst aspects of legislative-based racism, assertions of apartheid, negative stereotypes, and the equation of `white' with `civilisation'.

Does marriage outside the race, as popularly understood, alter the classification? The Supreme Court of Queensland in 1914 held that it did not. In Dempsey v. Rigg,(23) an Aboriginal woman, married to a foreigner, was employed in contravention of the Aborigines Protection and Restriction of the Sale of Opium Acts 1987 to 1901. Chubb J, with other members of the Court, dismissed the appeal against conviction, observing that `a person can no more change his race than a leopard can change his spots'. This precise wording was employed in 1983 in Mandla v. Dowell Lee, a decision of the Court of Appeal in England,(24) and evokes the Bible (Jeremiah XIII:23).

There are few judicial considerations of `race' or `Aboriginal race'. In the Tasmanian Dam Case,(25) part of the impugned legislation in that landmark case was s.8(1) of the World Heritage Properties Conservation Act 1983 (Cwlth), declaring inter alia that s.8 was necessary `as special laws for the people of the Aboriginal race'. Although the section was declared invalid, Justices Brennan and Deane in particular considered the proper meaning of `race'. Firstly, it was `not a term of art' nor `a precise concept'; secondly, `membership of race imports a biological history or origin which is common to other members of the race'; thirdly, `physical similarities, and a common history, a common religion or spiritual beliefs and a common culture are factors that tend to create a sense of identity among members of a race and to which others have regard in identifying people as members of a race'. The Court accepted that the words `the people of any race' used in the Constitution have a wide and non-technical meaning, and that `Australian Aboriginal' likewise possessed a conventional meaning.(26)

Two more recent decisions have substantially settled the meaning of `Aboriginal', both in the descriptive reference to `Aboriginal person' and as a `person of the Aboriginal race of Australia'.

In the first case (Attorney-General (Cwlth) v. State Of Queensland and Another; National Aboriginal and Islander Legal Services Secretariat v. State of Queensland and Another),(27) the Full Court of the Federal Court of Australia had to consider on appeal the meaning of `Aboriginal' in the Letters Patent authorising a Royal Commissioner to inquire into certain deaths in custody of `Aboriginals and Torres Strait Islanders'. In the particular case, the state of Queensland contended that the deceased was not an Aboriginal within the meaning of the Letters Patent. The deceased was a young man partly of Aboriginal descent but of distinctly European appearance.

The Court upheld the appeal against the trial judge's order that the Royal Commissioner not inquire into the circumstances of the deceased's death. It accepted that the ordinary and natural meaning of the word `Aboriginal' was appropriate to the context of the Letters Patent. Aboriginal descent was a sufficient (and impliedly necessary) criterion for classification as Aboriginal. Where, however, the Aboriginal genetic heritage was so small as to be trivial or of no real significance, the Royal Commission was entitled to decline to inquire. Moreover, the Court left open the question whether a person with no Aboriginal genetic heritage could be regarded as Aboriginal by reason of self-identification and communal affiliation. That question was addressed directly by Justice Drummond in Gibbs v. Capewell and Others in the Federal Court of Australia.(28)

A challenge was made to an election of a person to a Roma regional council of the Aboriginal and Torres Strait Islander Commission on the grounds that the person elected was neither an `Aboriginal person' nor a `Torres Strait Islander' within the meaning of the Act and that votes were cast by persons disentitled for the same reason.

The Court held that

(a) the expression `Aboriginal person' within the meaning

of the Act is not confined to full blood descendants

of pre-European settlement inhabitants of Australia but

comprehends persons of mixed descent;

(b) the Act indicates that the expression should bear the

meaning it has in current community parlance;

(c) some degree of Aboriginal descent is necessary,

but it will only be sufficient to require a person to

be regarded as an `Aboriginal person' where it is

`substantial';

(d) where a person has only a small degree of

Aboriginal descent but genuinely identifies him or

herself as an Aboriginal person and is recognised as

such by an Aboriginal community, such a person is an

Aboriginal person as a matter of ordinary speech and

for the purposes of the Act;

(e) where a person has only a small degree of

Aboriginal descent, genuine self-identification as an

Aboriginal alone or communal recognition as such by

itself may suffice, according to the circumstances, for

such a person to be regarded an Aboriginal person.

Curiously, the Australian Industrial Relations Commission in a later decision(29) sought to avoid the `genetic material' issues of Gibbs v. Capewell in favour of the self-identification and community acceptance tests.

The union sought, and won, an application to vary the Municipal Employees (Western Australia) Award 1982. The purpose of the application on behalf of Aboriginal members was to enhance their career path as employees in local government, but without derogating from their religious and cultural imperatives. In particular, the application sought adequate bereavement leave, parenting leave and a paid holiday to celebrate National Aboriginal and Islander Day of Celebration (NAIDOC).

Anthropological and other evidence as to morbidity and kinship led the senior deputy president to grant bereavement leave as part of the general award, but that the leave could be taken using annual leave entitlements, leave without pay, or by using accumulated rostered days off. The NAIDOC holiday application was rejected, but could be taken in lieu of another public holiday as agreed by the employee and employer.

Evidence before the commissioner led Riordan SDP to note that two-thirds of the Australian Aboriginal population are of mixed descent and varying degrees of adherence to cultural and religious beliefs. By adopting the twin tests of self-identification and communal acceptance, he sought to absolve the employer from assessing the nature and extent of an employee's beliefs.

The decision is at odds, however, with the tests now formulated by superior courts and can be explained only by reference to its context or as an exercise in judicial realpolitik. Nevertheless, as the Chief Justice of the High Court said in Gerhardy v. Brown, decided in 1985, `one is likely to get more assistance from the realities of life than from books of jurisprudence'.

The word `Aboriginal' was also considered by the High Court in the Utopia Station Land Rights case, decided in 1980.(30) The decision in that case turned more on the meaning of a concept of trust and less on the identity and characteristics of `Aboriginals' as defined in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cwlth). Argument there concentrated on the locality and not the antecedents of the group, who were assumed to possess them.

Similarly, in Jungarrayi and Others v. Olney and Another,(31) an application for judicial review in respect of the Kanturrpa repeat land claim. The Full Court of the Federal Court rejected the submission that the strength of traditional attachment to land claimed under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cwlth) is an ingredient in the definition of traditional Aboriginal owners. The Court noted the fluctuating composition of the groups as additional members become part of the group and other members die.(32) But the question of identity as `Aboriginals' was assumed and not addressed.

Likewise, in the more recent case of Northern Land Council and Others v. Aboriginal Land Commissioner and Another,(33) the Full Court of the Federal Court judicially reviewed a decision of the then Aboriginal Land Commissioner under the Kenbi land claim. Some members of the Larrakia linguistic group objected to a claim lodged by Wagaitj people, resident in the area but not Larrakia people.

The Court agreed with the commissioner that the expression `traditional Aboriginal owners' meant a patrilineal clan, that is, a subdivision of a linguistic or dialect group whose membership is determined by common patrilineal descent. However, while recruitment to a group must be by some form of descent, that need not be seen in a biological sense because

(a) persons may be adopted into and become part of the

group such that, while recruitment to a group must be

by some form of descent, that need not be interpreted in

a solely biological sense; and

(b) what has to be found is the existence of a group,

recruited by descent, possessing ties to the land and

otherwise satisfying the criteria of `traditional

Aboriginal owners'.(34)

What these cases signify is a judicial willingness to accept and extend the popular meaning of an expression, other than one defined by statute, and to accord it a non-technical sense and application. The land claim cases have particularly extended jurisprudence by imaginative use of anthropological land ethnoarchaeological evidence. But they also signify the paucity of challenges to the `Aboriginal' legislation as such, and a total failure of authority to assist or prosecute any such challenge.

In so doing, institutional power was preserved virtually unchallenged; with it, the integrity of government policy and programs was not subjected to the authority and countervailing scrutiny of an impartial tribunal. The law, in other words, signally failed to ameliorate the pervasive generality of Aboriginal institutionalisation and tended to focus on its peripheral aspects.

Administrative definitions

It is not always appreciated that the burden of administering the plethora of legislation giving effect to government policy is accompanied by provisions less than clear and precise, not only in their meaning but in their intended application. In the absence of unequivocal statutory instructions or guidelines, bureaucratic or administrative arrangements must be made for the effectual application of legislation. Thus, between policy formulation as enunciated and agreed to by government and administrative action giving policy force and effect, legal lacunae or gaps commonly occur.

In practice, these gaps are filled or covered by judicial or administrative innovation, the one consistent with the language employed by the statute and the concepts discerned within it, the other by knowledge of the policy and its scope possessed by those who assisted in its formulation within the bureaucracy and ultimately charged with administering it.

In 1901 the Commonwealth Attorney-General, Alfred Deakin, gave an opinion that in reckoning the population for the purposes of section 127 of the Constitution, `half-castes' were not `aboriginal natives' within the meaning of that section and should therefore be included.(35) No reason was advanced, except that based on the rule as to the construction of statutory exceptions, namely that where they are not remedial they should be construed strictly. Accordingly, for the purposes of Commonwealth law, but not of course, or necessarily, for any other (state or territory) law, people with a preponderance of Aboriginal `blood' were considered to be `aboriginal natives' and those with less were not.

This is illustrated in another opinion which, as Attorney-General, Deakin gave in 1902.(36) The Excise Tariff 1902 (Cwlth) allowed a rebate of excise duties on sugar `on all sugar cane delivered for manufacture, and in the production of which sugar cane white labour only has been employed'. The Minister for Trade and Customs asked for an opinion, inter alia, on the effect which the employment of persons of `mixed blood' might have. Deakin again adopted a `preponderance of blood' test, although Commonwealth law in this area was silent on the point:

Quadroons may reasonably be considered as white

labour; persons in whom the blood of a coloured race

predominates should not. Half-castes are on the border

line, but in view of the affirmative and restrictive language

of the provision, I think that half-castes should be

excluded.

The `preponderance of blood' test employed as a coda of construction was adopted by the Commonwealth in 1905, confirmed in 1929, and again as late as 1961. Queensland continued the test until 1971. The 1905 construction had the effect of continuing the exclusion of `full-bloods' and those with a preponderance of `blood' from the census of the Commonwealth, thereby denying the franchise to those persons and consequentially affecting the representation in the lower house of the Commonwealth parliament of electors in the states.(37)

A 1929 advice from the Attorney-General's Department to the Chief Electoral Office defined an `aboriginal native' as a person in whom Aboriginal descent preponderates, and `that half-castes were "aboriginal natives" within the meaning of Section 127 of the Constitution'.(38) Accordingly, by means of secondary sources, the Commonwealth Electoral Office applied the definition for all Commonwealth electoral purposes (and that of section 127 of the Constitution) between 1929 and 1961.(39) That opinion, in effect, continued the line of advice in similar terms, and for the same purposes, given to the Chief Electoral Officer of the Commonwealth at least since 1914, although for statistical purposes in connection with section 127 and not franchise purposes, there had been a degree of consistency of opinion and uniformity of advice since Deakin's opinion in August 1901. The consequences of that advice endured for 60 years in Commonwealth legislation.

In a 1961 opinion furnished to the Select Committee on Voting Rights of Aboriginals, a former Solicitor-General, Sir Kenneth Bailey, advised that, in s.51 (xxvi) of the Constitution as it then stood, the expression `people of ... the aboriginal race' applied only to persons of Aboriginal descent and to persons in whom `aboriginal blood preponderates'.(40) On that view, a person `of the half-blood', or a person in whom European or other non-Aboriginal `blood' preponderated, could not be classified as belonging to `the Aboriginal race'. Indeed, a person of the `half-blood' would not belong to any race at all.

Even in 1978, administrative discretion was still very wide in the administration of Commonwealth legislation of Aborigines. The Minister representing the Minister for Aboriginal Affairs answered a question on notice as to those considered `Aboriginal' under Commonwealth law.(41)

For the purposes of legal aid, as then provided by the Aboriginal Legal Service in New South Wales, the definition of `Aboriginal' was settled in consultation with the Australian government, which funded the service. An `Aboriginal' was a member or descendant of the Aboriginal race, including Torres Strait Islands, and `where it is in the interests of justice in the circumstances of a particular case', a person living in a domestic relationship with an Aboriginal. Any degree of Aboriginality sufficed.(42)

For the purposes of Commonwealth law, `Aboriginality' was not exclusively a status conferred or withdrawn by legislation; it might also be the result of administrative decision, based on application, investigation, consideration or other form of review, decision and certification then required in respect of housing loans, enterprise loans, and grants from the Aboriginals Benefit Trust Account.(43)

The criteria employed by third parties or organisations enjoying recognition as bodies authorised to issue certificates which would be recognised for approved government purposes were neither stated nor known. Further, even in the absence of such certification, the particular government department or instrumentality (be it state or Commonwealth) might I pursue those of differing Aboriginal organisations, proceeded according to their own methods of determination'.(44)

Such ill-defined--or, in the absence of any definition, unknown-criteria promote the prospects of individual abuse, refusal or neglect of any application dependent upon a demonstration, to administrative satisfaction, of a sufficient degree of Aboriginality.

Conclusions

A consideration of legislative definitions and descriptions of Aborigines provides neither consistency of expression nor any guide as to why certain expressions were introduced, let alone retained, in any jurisdiction. It is beyond the scope of this paper, but not beyond the scope of historians, sociologists and particularly those interested to advance Australian legal sociology out of its present embryonic stage, to investigate the origins and influences of the legislation.

More to the point, however, is the need to go beyond the legislative, and to focus on the regulatory definitions which attended degrees of black-ness in Australia. Consistent with this is the need precisely to locate the legislative definitional framework in the contemporary social and economic framework.

Why were Aborigines singled out so consistently for legislative treatment? I believe--but cannot yet prove--that the answer has its roots in the question of land dispossession and ownership / usage. Moreover, the gradations of definitions of colour, it seems to me, reflected not only a state attempt to regulate and control the remnants of what was believed a dying race, but to remove them from the conscience of a society united, not by class or common origin, but by greed for land.

If the process of law gave official sanction to the concept of a worthless, useless, verminous scum whose common denominator was the colour of their skin, the theft of their land and slaughter of their persons was not only an economic but a moral necessity.

The intervention of alternative agencies--particularly missionaries--for the conversion of misfits to practical Christianity could be facilitated if the pathetic remnants of the once-flourishing tribes could be removed from white man's degradations and taught the way to the white man's salvation.

Intermarriage and the production of half-white children compounded the moral conundrum. The provision of legislation for `half-castes', it will be noted, preceded that for `Aborigines' by many years, in some cases by decades. Neo- and Social Darwinism, propounded for Australia and the other non-white colonial possessions of Britain, provided a theoretical justification and rubric for more intensive legislative / regulatory scrutiny and oversight.

The concept of race per se is one which still rests uneasily with judges, intruding into jurisprudence biological and other determinants which the law traditionally eschewed. The relative dearth of judge-made pronouncements prior to enactment of the NT land rights legislation in 1976 mirrors the paucity of legal challenges based on race or blood and the singular disinterest or inability of those competent to mount a legal challenge so based.

NOTES

Cases in italics, and references to `Bibliography', refer to those found in my Aborigines and the L4w: A Digest (Aboriginal Studies Press, Canberra, 1987).

(1.) Aboriginals Ordinance 1936.

(2.) Aboriginals Ordinance 1943.

(3.) Aboriginals Ordinance (No 2) 1953.

(4.) (1959) 100 CLR 665; LXVI ALR 690, (1959-60) 33 ALJR 24; Bibliography Case No 132, pp 59-60.

(5.) Aboriginal Native Offenders Amendment Act 1874; Aboriginal Offenders Act 1883.

(6.) Industrial Schools Act 1874; Commonwealth Powers Act 1943.

(7.) Aborigines Act 1897.

(8.) Aborigines Protection Act 1886; Constitution Act Amendment Act 1893; Constitution Acts Amendment Act 1899; Electoral Act 1907, Constitution Act Amendment Act 1934.

(9.) Native Welfare Act Amendment Act 1960.

(10.) Aboriginal Affairs Planning Authority Act 1972.

(11.) Aboriginal Heritage Act 1972.

(12.) Aborigines Act Amendment Act 1939; Aboriginal Affairs Act 1962; Aboriginal and Historic Relies Preservation Act 1965.

(13.) Community Welfare Act 1972; Aboriginal Heritage Act 1979.

(14.) Cape Barren Island Reserve Act 1912: Schedules II-IV.

(15.) Police Offences Act 1890, 1912, 1915, 1928, 1957.

(16.) Aristotle, Laws Book, vi, p 757.

(17.) North Australian Industrial Union v. JA Ambrose and Others (1924) 20 CAR 507, at p 512; Bibliography, Case No 139a, pp 63A-B.

(18.) (1903) 20 WN (NSW) 41; Bibliography, Case No 25, p 9.

(19.) Jiro Muramats v. The Commonwealth Electoral Officer for the State of Western Australia (1923) 32 CLR 500, at p 507; 30 ALR 81, at p 84; Bibliography, Case No 128, p 175.

(20.) (1956) 96 CLR 172, at p 175.

(21.) (1976) VR 100, at pp 103-4, Bibliography, Case No 29, p 11.

(22.) Ryan SM, 13 December 1971; Bibliography, Case No 396, pp 131-3.

(23.) (1914) QSR 245; 8 QJPR 57 and 149; Bibliography, Case No 54, pp 21-2.

(24.) (1983) 1 QB 1 per Kerr LJ, at p 19; taken on appeal to the House of Lords (1983) 2 WLR 620. See also Helen Beyon and Nigel Love, `Mandla and the Meaning of Racial Group', Law Quarterly Review 100 (Jan 1984), 120.

(25.) The Commonwealth of Australia and Another v. The State Of Tasmania and Others (1983) 46 ALR 625.

(26.) Per Murphy J, at p 737; Brennan J, at pp 791-2; Deane J, at p 817.

(27.) (1990) 94 ALR 515.

(28.) (1995) 128 ALR 577.

(29.) Re Federated Municipal & Shire Council Employees' Union of Australia (WA Division) (1996) Australian Indigenous Law Reporter 32.

(30.) In re Ross; Ex parte the Attorney General for the Northern Territory of Australia (1979) 54 ALJR 145; (1980) 28 ALR 27; Bibliography, Case No 352, pp 118-20.

(31.) (1992) 105 ALR 527.

(32.) (1992) 105 ALR 528, at p 534.

(33.) (1992) 105 ALR 539.

(34.) (1992) 105 ALR 539, at p 553.

(35.) Patrick Brazil and Bevan Mitchell (eds), Opinions of Attorneys-General of the Commonwealth of Australia with Opinions of Solicitors General and the Attorney-General's Department: Vol 1, 1901-14.

(36.) Opinions of Attorneys-General: Opinion No 57, p 75.

(37.) Opinions of Attorneys-General: Opinion No 13, p 24 fn(1).

(38.) Australia, Parliamentary Papers, 1961, vol 11, p 1400.

(39.) Australia, Parliamentary Papers, 1961, vol 11, p 1400.

(40.) Australia, Parliamentary Papers, 1961, vol 11, p 1440.

(41.) Australia, Senate Debates, 12 September 1978, p 503.

(42.) Australia, Senate Debates, 12 September 1978, p 503.

(43.) Australia, Senate Debates, 12 September 1978, p 503.

(44.) Australia, Senate Debates, 12 September 1978, p 503.

John McCorquodale BA, LLB, LLM, MA(Syd), PhD(UNE), is a Solicitor of the High Court of Australia and a Barrister and Solicitor of the Supreme Courts of NSW and the ACT.
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