Legal definitions of Aboriginality

Early definitions

36.11 The legal historian, John McCorquodale, has reported that since the time of white settlement, governments have used no less than 67 classifications, descriptions or definitions to determine who is an Aboriginal person.^[9]

36.12 The ALRC discussed the definition of an ‘Aborigine’ in its 1986 report, The Recognition of Aboriginal Customary Laws.^[10] The ALRC noted that early attempts at a definition tended to concentrate on descent, without referring to other elements of Aboriginality. Problems arose in deciding whether descendants of unions between Aborigines and settlers were to be regarded as Aboriginal for the purposes of various restrictive or discriminatory laws (for example, disentitling Aborigines from voting or enrolling to vote). In applying these restrictive laws, tests based on ‘quantum of blood’ were commonly applied.^[11]

36.13 The Commonwealth Parliament obtained the power to legislate with respect to people of ‘the aboriginal race in any State’ in the 1967 referendum. The Commonwealth subsequently enacted a number of statutes for the purpose of providing certain rights and privileges for the exclusive benefit of Indigenous Australians.^[12] These statutes have generally defined an Aboriginal or Indigenous person as ‘a person who is a descendant of an indigenous inhabitant of Australia’,^[13] or a member or a person ‘of the Aboriginal race of Australia’.^[14] One commentator has observed in relation to the latter definition:

Though possibly an improvement on ‘blood’ quantum definitions, the utility of this definition can still be questioned, not least of all on the grounds that there is no such thing as an Aboriginal race. Most scientists long ago stopped using the word ‘race’.^[15]

The three-part definition

36.14 In the early 1980s, the Commonwealth Department of Aboriginal Affairs proposed a new three-part definition of an Aboriginal or Torres Strait Islander person.

An Aboriginal or Torres Strait Islander is a person of Aboriginal or Torres Strait Islander descent who identifies as an Aboriginal or Torres Strait Islander and is accepted as such by the community in which he [or she] lives.^[16]

36.15 Federal government departments adopted the definition as their ‘working definition’ for determining eligibility to certain services and benefits. The definition continues to be applied administratively in relation to programs such as Abstudy funding for tertiary students.

36.16 In The Recognition of Aboriginal Customary Laws, the ALRC emphasised the benefits of a flexible definition of Aboriginality:

Experience under Commonwealth and States legislation suggests that it is not necessary to spell out a detailed definition of who is an Aborigine, and that there are distinct advantages in leaving the application of the definition to be worked out, so far as is necessary, on a case by case basis.^[17]

36.17 Only a small number of judicial decisions in Australia have considered this issue.^[18] In Commonwealth v Tasmania, the High Court considered the definition of an ‘Aborigine’ for the purpose of s 51(xxvi) of the Constitution, in relation to laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’. Deane J applied the three-part test, stating:

By ‘Australian Aboriginal’ I mean, in accordance with what I understand to be the conventional meaning of that term, a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognised by the Aboriginal community as Aboriginal.^[19]

36.18 Brennan J supported this approach in his leading judgment in Mabo v Queensland (No 2), in relation to native title:

Membership of the Indigenous people depends on biological descent from the Indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.^[20]

36.19 As noted above, the Commonwealth has enacted a number of statutes for the purpose of providing certain rights and privileges for the exclusive benefit of Indigenous Australians. Due to the broad terms in which these statutes define an Aboriginal person, it has been necessary for the courts to interpret these definitions.

36.20 In Attorney-General (Cth) v Queensland, the Federal Court considered the meaning of the word ‘Aboriginal’ in relation to the Letters Patent authorising the Royal Commission to inquire into the deaths in custody of ‘Aboriginal and Torres Strait Islanders’. The Queensland government argued that the Royal Commission could not inquire into the death of a 17-year-old boy in custody because he was not Aboriginal. While the boy had some Aboriginal descent, he had not identified as an Aborigine and had not been recognised as such by the Aboriginal community.^[21]

36.21 The Federal Court held that Aboriginal descent was, by itself, sufficient proof of Aboriginality for these particular purposes. French J commented that the three-part definition should not be seen as representing the contemporary content of the word ‘Aboriginal’, irrespective of context or purpose. The better view was that Aboriginal descent alone is a sufficient criterion for classification as Aboriginal for the purposes there in question.^[22]

36.22 Spender J commented that once it is established that a person is ‘non-trivially’ of Aboriginal descent, then that person is Aboriginal within the ordinary meaning of that word. Neither self-identification nor community recognition is necessary, and the presence of either factor, or even both, is not sufficient to satisfy the definition of an ‘Aboriginal’ person.^[23] Spender and Jenkinson JJ both commented that where Aboriginal descent is uncertain, or where the extent of Aboriginal descent might be considered insignificant, self-recognition or recognition by other Aboriginal persons may have an evidentiary value in resolving the question.^[24]

36.23 In Gibbs v Capewell, the Federal Court discussed the meaning of the statutory definition of an Aboriginal person in the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (ATSIC Act).^[25] The Act defines an Aboriginal person as ‘a member of an Aboriginal race of Australia’. Drummond J concluded that Parliament’s intention was ‘to refer to the group of persons in the modern Australian population who are descended from the inhabitants of Australia immediately prior to European settlement’.^[26] For the purposes of the ATSIC Act, an Aboriginal person must be a biological descendant of one of those inhabitants. His Honour stated:

Since the Act itself makes it clear that proof of descent from the pre-European settlement inhabitants of Australia is essential before a person can come within the expression ‘Aboriginal person’ in the Act, I reject the suggestion … that a person without any Aboriginal genes but who has identified with an Aboriginal community and who is recognised by that community as one of them can be an ‘Aboriginal person’ for the purposes of this particular Act. It follows that adoption by Aboriginals of a person without any Aboriginal descent and the raising of that person as an Aboriginal … will not, because of the statutory requirement for descent, bring that person within the description ‘Aboriginal person’.^[27]

36.24 Drummond J commented that Deane J’s three-part test should not be regarded as containing an exhaustive description of the meaning in ordinary speech of the term ‘Aboriginal’. His Honour held that a person must have some degree of Aboriginal descent to satisfy the definition of an ‘Aboriginal person’. A small degree of Aboriginal descent coupled with genuine self-identification or with communal recognition may be sufficient for eligibility; alternatively, a substantial degree of descent may by itself be sufficient.^[28] Drummond J recognised the probative value of communal recognition as evidence of Aboriginal descent.

Aboriginal communal recognition will always be important, when it exists, as indicating the appropriateness of describing the person in question as an ‘Aboriginal person’. Proof of communal recognition as an Aboriginal may, given the difficulties of proof of Aboriginal descent flowing from, among other things, the lack of written family records, be the best evidence available of proof of Aboriginal descent. While it may not be necessary to enable a person to claim the status of an ‘Aboriginal person’ for the purposes of the Act in a particular case, such recognition may, if it exists, also provide evidence confirmatory of the genuineness of that person’s identification as an Aboriginal.^[29]

36.25 In Shaw v Wolf, the Federal Court again considered the meaning of an ‘Aboriginal person’ for the purposes of the ATSIC Act. Merkel J held that if a person has no Aboriginal descent then he or she cannot be an Aboriginal person for the purposes of the Act. However, evidence about the process by which self-identification and communal identification occurs can be probative of descent.^[30] Merkel J referred to the lack of documentary records and to the reticence of some families of Aboriginal descent to publicly acknowledge that fact due to actual or perceived racism from the rest of the community.

In these circumstances Aboriginal identification often became a matter, at best, of personal or family, rather than public, record. Given the history of the dispossession and disadvantage of the Aboriginal people of Australia, a concealed but nevertheless passed on family oral ‘history’ of descent may in some instances be the only evidence available to establish Aboriginal descent. Accordingly oral histories and evidence as to the process leading to self-identification may, in a particular case, be sufficient evidence not only of descent but also of Aboriginal identity.^[31]

36.26 Merkel J noted that his decision involved the interpretation of a statutory definition only, and did not purport to be a comprehensive definition of Aboriginality. His Honour commented that:

Aboriginality as such is not capable of any single or satisfactory definition … The present case offers a good example of the difficulties thrown up by issues of Aboriginal identification. That some descent may be an essential legal criterion required by the definition in the Act is to be accepted. However in truth, the notion of ‘some’ descent is a technical rather than a real criterion for identity, which after all in this day and age, is accepted as a social, rather than a genetic, construct. The solution to such problems is a matter for the legislature rather than the courts.^[32]

36.27 In his concluding observations in Shaw v Wolf, Merkel J made the point that since this issue involves an important aspect of Aboriginal self-determination, it is best left for bodies with Aboriginal representation:

It is unfortunate that the determination of a person’s Aboriginal identity, a highly personal matter, has been left by a parliament that is not representative of Aboriginal people to be determined by a court which is also not representative of Aboriginal people. Whilst many would say that this is an inevitable incident of political and legal life in Australia, I do not accept that that must always be necessarily so. It is to be hoped that one day if questions such as those that have arisen in the present case are again required to be determined that that determination might be made by independently constituted bodies or tribunals which are representative of Aboriginal people.^[33]

36.28 In summary, the Commonwealth government appears to apply the three-part test of Aboriginal descent, self-identification and community recognition for determining eligibility for certain programs and benefits. The courts, in interpreting statutory definitions in federal legislation, have emphasised the importance of descent in establishing Aboriginal identity, but have recognised that self-identification and community recognition may be relevant to establishing descent, and hence Aboriginal identity, for the purposes of specific legislation.

International approaches

36.29 Dr William Jonas, the Aboriginal and Torres Strait Islander Social Justice Commissioner of the Human Rights and Equal Opportunity Commission, noted that Indigenous peoples have resisted attempts internationally to prescribe an exhaustive definition of ‘Indigenous’.^[34]

36.30 The United Nations Working Group on the Rights of Indigenous Populations has considered the definition of Indigenous peoples, communities and nations but has never adopted a formal definition. In the Working Group’s first session, indigenous participants argued against attempts to formulate a definition, in the absence of more broadly representative indigenous participation.^[35] In its second session, the Working Group considered a definition developed by Martinez Cobo, the Special Rapporteur to the United Nations’ Subcommission on Prevention of Discrimination and Protection of Minorities:

Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them … They form at present non-dominant sectors of society and are determined to preserve, develop, and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.^[36]

36.31 The importance of self-identification has also been recognised in Article 1.2 of International Labour Organization Convention 169, concerning Indigenous and Tribal Peoples in Independent Countries:

Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.^[37]

36.32 Dr Larissa Behrendt, Professor of Law and Indigenous Studies at the University of Technology Sydney, has commented:

If we’re going to talk about treaties and recognition of rights, the question of who’s in and who’s out is going to be the most important issue facing indigenous Australians. If that isn’t resolved, you run the risk of having the parameters stretched to the ludicrous point where someone can say: ‘Seven generations ago there was an Aboriginal person in my family, therefore I am Aboriginal’.^[38]

Concerns about the application of existing law

36.33 A number of submissions commented on the appropriateness, or otherwise, of the existing legal definition of Aboriginality.^[39] The Commonwealth Attorney-General’s Department commented:

The question of whether genetic testing and information should be used to establish Aboriginal identity is an important issue given that it may determine eligibility to Indigenous-specific entitlements. Any departure from the current three-pronged test to determine whether someone is an Aboriginal or a Torres Strait Islander based on descent, self-identification and community recognition requires careful consideration.^[40]

36.34 The Inquiry was told in some consultations that the three-part definition works well enough in most circumstances. However, a number of concerns were expressed about the test. In some cases, the courts have interpreted ‘descent’ in terms of biological descent when interpreting the meaning of an Aboriginal person.^[41] This tends to undermine the role of social descent within Aboriginal communities whose traditional laws and customs might provide for adoption or other social forms of inclusion into a family or community. The emphasis on biological descent has led to some anxiety that genetic testing might increasingly be used (or even required) as a means of proving a person’s kinship relationship with another Aboriginal person.

36.35 Several submissions emphasised the difference between Western and Aboriginal definitions of kinship.^[42] The Aboriginal and Torres Strait Islander Social Justice Commissioner commented that:

While Aboriginal people may generally be direct descendants of the original inhabitants of a particular part of Australia, indigenous customary law does not rely on linear proof of descent in the Judeo-Christian genealogical form of ‘Seth begat Enosh begat Kenan’ in order to prove membership of the group. … A person may have been adopted into a kinship group where there is no direct or suitable offspring to carry out ceremonial obligations. … Genetic science should have no part to play in determining whether or not a person should be eligible for benefits. If the element of descent is to remain in Australian law as a test of Aboriginality, it should be interpreted in accordance with Indigenous cultural protocols.^[43]

36.36 Professor Larissa Behrendt also expressed concern about the tendency of the courts to distort the three-part test by focussing unduly on descent, however defined. Professor Behrendt noted that self-identification has been recognised as the international standard for establishing indigenous identity, and she emphasised that, in talking about elections and treaties, indigenous people need to talk among themselves about Aboriginality and what makes their Indigenous identity.^[44]

36.37 In its submission to the Inquiry, AIATSIS supported the existing definition, commenting that it should be emphasised in legal determinations, but it stressed the need for judicial flexibility to ensure Indigenous peoples were not disadvantaged.

The legal imperative of utilising the three pronged approach to Indigenous identity should be emphasised in legal determinations. There should also be a strengthening of the three pronged test to allow judges to make this test a legal standard. AIATSIS stresses the need for judicial discretion so that Indigenous people [a]re not further disadvantaged in legal proceedings.^[45]

36.38 The difficulties surrounding elements of the three-part test are illustrated by the controversy that arose in 2002 over eligibility to vote in the election for ATSIC councillors representing Tasmania. The ATSIC Act provides that a person is entitled to vote in a Regional Council ward election if he or she is an Aboriginal person or a Torres Strait Islander.^[46]

36.39 Some Tasmanian people who identify as Aboriginal, and are acknowledged as such by the relevant Aboriginal community, nevertheless may have difficulty obtaining documentary evidence of their Aboriginal descent. This is due to inadequate colonial record keeping, past policies of removal and other consequences of the historical discrimination against Aboriginal people. These persons assert that self-identification and community acceptance should be sufficient evidence of their Aboriginality for legal purposes. On the other hand, it has been argued that requiring proof of descent is one way to protect against fraudulent or inappropriate claims of Aboriginality by non-Indigenous persons for personal or financial reasons.^[47]

36.40 These concerns led ATSIC to trial an Indigenous Electoral Roll for the purpose of the Tasmanian Regional Aboriginal Council Elections.^[48] Individuals could object to an applicant being included on the roll on the basis that he or she was not of Aboriginal or Torres Strait Islander descent. Where an objection was made, the applicant was required to provide documentary evidence addressing his or her Aboriginal ancestry, self-identification and community acceptance. To prove ancestry, the person generally was required to provide a verifiable family tree, or archival or historical documentation that linked the person to a traditional family or person.^[49] The Inquiry understands that several applicants sought genetic testing to produce evidence supporting their claims of Aboriginal descent.^[50]