The Definition of ‘Aborigine’

88. Who is an Aborigine? The Terms of Reference refer to ‘the Aboriginal people of Australia’, to ‘Aborigines’, to ‘members of the Aboriginal race’, to ‘Aborigines … living in tribal conditions’ and to ‘Aboriginal communities’. Questions of the definition of these terms, and in particular of ‘Aborigine’, arise both generally and in relation to s 51(26) of the Constitution, which is the main source of Commonwealth legislative power for this purpose.[5] It is possible that the ordinary definition and the constitutional definition may diverge. In addition, alternative definitions are still in use by some State government departments, and existing Commonwealth and State legislation contains a variety of formulations of ‘Aborigine’ or ‘Aboriginal’.[6]

89. Early Attempts at Definition. Early attempts at definition tended to concentrate on descent, without referring to other elements of ‘Aboriginality’. This is not surprising, given that few (if any) persons of Aboriginal descent were not Aboriginal in this other sense. Problems of definition did however arise 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 (eg disentitling Aborigines from voting or enrolling to vote). In applying such restrictive laws it was necessary to identify who was Aboriginal, and tests based on ‘quantum of blood’ were commonly applied.[7] The notion that Aboriginality was exclusively a matter of descent, and that ‘preponderance of [non-Aboriginal] blood’ meant that one was not Aboriginal, became and remained influential, and were sometimes applied by courts with total disregard for context.[8] However the term ‘Aborigine’ in ordinary use has increasingly been taken to mean a person of Aboriginal descent identifying as an Aborigine and recognised as such. Definitions based on ‘quantum of blood’ have correspondingly been rejected as unsatisfactory, indeed discriminatory.

90. The Constitutional Question. Until recently, however, it has not been clear whether the meaning of ‘Aborigine’ for constitutional purposes was similarly wide. The problem arose as early as 1901 when Attorney-General Denkin had to consider the meaning of ‘Aboriginal native’ for the purpose of s 127 of the Constitution (repealed in 1967):

Section 127 of the Constitution makes a particular exception that in reckoning the numbers of the people of the Commonwealth or a State, ‘Aboriginal natives shall not be counted’. The rule as to the construction of such exceptions, where, as in this case, they are not remedial, is that they should be construed strictly. I am of the opinion that half-castes are not ‘Aboriginal natives’ within the meaning of this section, and should be included in reckoning the population.[9]

Section 127 was concerned with census-taking, a context requiring certainty of definition and as few exceptions as possible.[10] It was therefore an open question whether the exclusion of ‘the Aboriginal race in any State’ from the power to make special laws for the people of any race, conferred by s 51(26) of the Constitution, was to be interpreted in the same way. However a similar view was taken to the power as to the prohibition though it was never directly tested in the courts. In 1961, the Solicitor-General, Sir Kenneth Bailey, sought to define the words ‘Aboriginal race’ as then contained in s 51(26). He advised the House of Representatives Select Committee on Voting Rights of Aboriginals that:

it has been the consistent view of this Department … that certain persons of mixed blood properly belong to the constitutional category of aboriginal natives. The test, metaphorically rather than scientifically stated, is whether the aboriginal blood preponderates. Thus a half-caste. strictly so called, eg the offspring of one parent of pure aboriginal and another of pure European descent would not answer the description of a person of ‘aboriginal race’. Persons of the half-blood. strictly so called, ‘cannot be regarded as persons of any race’, as the then Solicitor-General Sir Robert Garran, put it in an opinion given in 1921. But a person, for example. three of whose grandparents were full-blood Aboriginals would I think answer the description of a person of ‘Aboriginal race’. The question therefore is basically one of descent.[11]

The 1967 Referendum deleted the exclusionary provisions for Aborigines in s 51(26) and 127. and thus significantly changed the issue of interpretation. It is one thing to interpret a reference to the ‘Aboriginal race’ as an exclusion of power, and quite another to interpret a power to legislate for the people of any race (including Aborigines). Yet earlier opinions continued, at least for a time, to be influential. In 1968 the then Secretary of the Attorney-General’s Department discussed s 51(26) in the following terms:

the definition of race is a matter of law, for this purpose no working definition can extend the area of power … I agree with the view put by Sir Kenneth [Bailey]. I think myself that the view can confidently be held that a person who is predominantly of Aboriginal descent is a person of the Aboriginal race for the purposes of s 51(xxvi). There may be a case for seeking to include in the scope of legislation enacted in pursuance of s 51(xxvi) some persons who cannot be said to be predominantly of Aboriginal descent, but … the Constitutional problems in relation to s 51(xxvi) could be finally determined only in the context of proposals for specific legislation and the particular circumstances to which the legislation would apply.[12]

In 1974, the Department referred to its previous advice that, ‘in the absence of a High Court decision, no assurance could be given that the expression “the people of any race” would include descendants in any degree’, and advised that s 51(26) ‘would not support the application of any law, regardless of its content, to persons in any degree descended from people of the Aboriginal race’.[13]

91. The Impact of a Broader Definition. By this time the Commonwealth had developed an administrative definition of ‘Aborigines’ which was considerably broader than the old ‘preponderance of blood’ or ‘substantial descent’ tests:

It was realised very early in the development of Commonwealth involvement in Aboriginal affairs that definitions of Aboriginality based on an interpretation of the constitution and relying on assessments of an individual’s ‘preponderance of blood’ were not satisfactory for administrative purposes. Assessments of degree of descent were generally considered unreliable and capable of giving offence. Such definitions also failed to take sufficient account of concepts of self-identification and community acceptance central to the rationale for Commonwealth Aboriginal advancement programs and the remediation of Aboriginal’s state of disadvantage.[14]

The current form of that definition states that:

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 lives.[15]

Of course, the primary purpose of the definition is administrative, given its use to determine eligibility for various entitlements or programs. For constitutional purposes, the question is a broader one: it is whether the particular law is one ‘with respect to’ the people of any race for whom special laws are deemed necessary. It is not a requirement for the validity of a law passed for Aboriginal people that the subjects or objects of the law should all be ‘Aborigines’ according to some definition.[16] Nonetheless whether a law meets the description contained in s 51(26) depends in part on the identification of the ‘Aboriginal race’, or its members as in some sense the beneficiary or object of the law. The question is whether the definition of ‘Aboriginal race’ for this purpose excludes persons who are, for example, ‘half-caste’ or who do not have ‘predominant Aboriginal blood’.[17]

92. The High Court Adopts the Broader View. The High Court’s decision in Commonwealth v Tasmania[18] makes it clear that this is not the case, and that the broader definition applies for the purpose of the constitutional power. None of the justices (including the three dissentients) was prepared to hold that Tasmanian Aborigines are not members of the ‘Aboriginal race’ for the purposes of s 51(26). Those who addressed the question made it clear that those people are Aborigines for this purpose.[19] In particular Justice Brennan stated that:

Though the biological element is … an essential element of membership of a race, it does not ordinarily exhaust the characteristics of a racial group. 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. As the people of a group identify themselves and are identified by others as a race by reference to their common history, religion, spiritual beliefs or culture as well as by reference to their biological origins and physical similarities, an indication is given of the scope and purpose of the power granted by para (xxvi). The kinds of benefits that laws might properly confer upon people as members of a race are benefits which tend to protect or foster their common intangible heritage or their common sense of identity. Their genetic inheritance is fixed at birth; the historic, religious, spiritual and cultural heritage are acquired and are susceptible to influences for which a law may provide. The advancement of the people of any race in any of these aspects of their group life falls within the power.[20]

Similarly Justice Deane said:

It is unnecessary, for the purposes of the present case, to consider the meaning to be given to the phrase ‘people of any race’ in s 51(xxvi). Plainly, the words have a wide and non-technical meaning … The phrase is, in my view, apposite to refer to all Australian Aboriginals collectively. Any doubt, which might otherwise exist in that regard, is removed by reference to the wording of para(xxvi) in its original form. The phrase is also apposite to refer to any identifiable racial sub-group among Australian Aboriginals. 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.[21]

It seems clear, therefore, that the broader ‘administrative’ definition does not diverge from the scope of constitutional power under s 51(26).[22]

93. State Definitions. At State level, the definition of ‘Aboriginal’ has varied quite considerably in the past.[23] In recent years most States have moved to a definition in terms of descent, although there is still a good deal of variation even within the legislation of a single State.[24] Some State Acts have adopted the Department of Aboriginal Affairs working definition involving descent, self-identification and community acceptance.[25]

94. Practice under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Section 3(1)(g) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) defines an ‘Aboriginal’ as a person who is ‘a member of the Aboriginal race of Australia’. There is no attempt to define the expression ‘Aboriginal race’.[26] The Aboriginal Land Commissioner, Justice Toohey, discussed this section in his Report on the Finniss River Land Claim:

the definition of the Act is ‘genetic rather than social’ … The dictionary definitions are framed in such a way that people having mixed racial origins are not excluded from a race with which they are genetically linked. Despite submissions made to the contrary there is nothing in the Act to compel the view that a person who is descended from both Aboriginal and non-Aboriginal ancestors cannot be considered an Aboriginal. References to Aboriginal tradition and sacred sites and the elements of traditional Aboriginal ownership do not operate to narrow the scope of the definition. They are directed at the beliefs, roles and responsibilities of Aboriginal people, not at who is an Aboriginal. Membership of a race is something which is determined at birth and cannot, in a sense, be relinquished, nor can it be entered into by someone lacking the necessary racial origin. It is unnecessary and unwise to lay down rigid criteria in advance. As situations arise in which the Aboriginality of claimants is put in issue, those situations can be looked at. In saying this I adopt the comments of Mr Justice Woodward in his Second Report on Land Rights.

Differences between Aborigines should be allowed for, but any artificial barriers, in particular those based on degrees of Aboriginal blood, must be avoided (para 62). This is not to say that persons whose predecessors were predominantly non-Aboriginal will necessarily qualify as Aboriginals within the Act.[27]

Although this passage does not refer to the elements of community identification or self-identification in the working definition, the experience under the 1976 Act is significant in its acceptance of a broad definition of ‘Aborigine’, and in showing how that definition has been applied in practice in a closely related context.

95. The Commission’s View. Experience under Commonwealth and State 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.[28] Constitutionally this presents no difficulties, as the High Court’s decision is Commonwealth v Tasmania show.[29] On the other hand, it has sometimes been suggested that a special and more restrictive definition of ‘traditional Aborigine’ should be adopted for the purposes of this Report and its implementation.[30] There are several reasons why such a special definition is both unnecessary and undesirable. Restrictive definitions of this kind have not been adopted in other related contexts.[31] Experience so far does not suggest a need for more stringent definitions.[32] The application of the Commission’s recommendations in appropriate cases is to be achieved by the substantive requirements of the provision in question, and by related evidentiary requirements. Indeed, there may be cases where it is appropriate that provisions for the recognition of Aboriginal customary laws should apply to persons who are not Aborigines. These questions have to considered on their merits, and cannot be resolved through the adoption of any more-or-less restrictive definition of ‘traditional Aborigine’.

[5]Since 1967 the term ‘Aboriginal’ does not appear in the Constitution. However the deletion of the phrase ‘other than the Aboriginal race in any State’ from s 51(26) extended the scope of the power to ‘the Aboriginal race’, and the meaning of that phrase therefore continues to be relevant. See para 90.

[6] The nouns ‘Aboriginal’ and ‘Aborigine’ are both in current use. This Report follows the Terms of Reference in using ‘Aborigine’.

[7] cf Muramats v Commonwealth Electoral Officer (WA) (1923) 32 CLR 500.

[8] eg Attorney-General of Victoria v Public Trustee, ex parte Hillerbrand, unreported, Full Supreme Court of Victoria (23 October 1970). But cf Re Dryning [1976] VR 100 (Lush J) where a more expansive view was taken.

[9]P Brazil and B Mitchell (eds) Opinions of Attorneys-General of the Commonwealth of Australia vol 1, AGPS, Canberra, 1981, 24. In a later opinion Isaacs concurred in this view: ibid. For other opinions on the point see id, 75, 217, 558.

[10]G Sawer, ‘The Australian Constitution and the Australian Aborigine’ (1966) 2 Fed L Rev 17, 26.

[11]House of Representatives, Select Committee on Voting Rights of Aborigines, Report, Parl Paper 2/1961, Appendix V, 44.

[12]EJ Hook, unpublished opinion of 30 October 1968, 3.

[13]Unpublished opinion of 1 August 1974, 1-2.

[14]Department of Aboriginal Affairs, Report on a Review of the Administration of the Working Definition of Aboriginal and Torres Strait Islander, unpublished, Canberra, 1981, 1. This was an internal Departmental working paper, which had no official endorsement.

[15]id, 8.

[16]See further Chapter 38.

[17]See para 90.

[18](1983) 46 ALR 625.

[19]cf id, 639 (Gibbs CJ), 719-20 (Mason J), 737 (Murphy J), 854 (Dawson J). Wilson J did not refer to the point.

[20]id, 792-3.

[21]id, 817.

[22]See further ch 38 for discussion of constitutional issues arising in this Report.

[23]WC Wentworth, ‘The Position of the Aboriginals in Law and Society’ (1969) 2 Justice 20, 22-3.

[24]eg Community Services (Aborigines) Act 1984 (Qld) s 6; Community Services (Torres Strait) Act 1984 (Qld) s 6; Aboriginal Lands Act 1970 (Vic) s 2; Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) s 2; Community Welfare Act 1972 (SA) s 6(1); Aboriginal and Historic Relics Preservation Act 1965 (SA) s 3(1); Aboriginal Heritage Act 1972 (WA) s 4; Aboriginal Affairs Planning Authority Act 1972 (WA) s 4; Aboriginal Relics Act 1975 (Tas) s 2(2); Aborigines Act 1969 (NSW) s 2; Aboriginal Land Rights Act 1983 (NSW) s 4.

[25] eg Fisheries Act 1905 (WA) s 56(3); Aboriginal Land Rights Act 1983 (NSW) s 4(1). For an analysis of earlier definitions see EM Eggleston, Fear, Favour or Affection. Aborigines and the Criminal Law in Victoria, South Australia and Western Australia, ANU Press, Canberra, 1976, 199-202; CD Rowley, The Destruction of Aboriginal Society, Penguin, Ringwood, 1978, 341-64.

[26]See also Aboriginal and Torres Strait Islander (Queensland Discriminatory Laws) Act 1975 (Cth) s 5; Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1984 (Cth) s 3(1).

[27]Report, AGPS, Canberra, 1981, para 119-21, referring to Uluru (Ayers Rock) National Park and Lake Amadeus/Luritja Land (Claim), AGPS. Canberra, 1980, para 114-6. See also Borroloola Land Claim, AGPS, Canberra, 1978, para 131.

[28]On the application of the definition in practice see further DAA Report (1981) 8-22. See also Report of the Parliamentary Committee of Enquiry, The Role of the NACC, AGPS, Canberra, 1976, Appendix D.

[29]See para 90.

[30]eg Energy Resources of Australia Ltd (BG Fisk) Submission 167 (4 May 1981) 4, proposing the following definition:

A traditional Aborigine is one who — A. resides in an Aboriginal Community within a recognised tribal area,

B. communicates predominately in the local Aboriginal language,

C. has been initiated into the sacred traditional rites,

D. has direct patrilineal or matrilineal descent from an Aborigine,

E. accepts the system of customary law operating in that community as applicable to him,

F. considers himself and is considered by others in that community as a Traditional Aborigine.

Unless all the above six criteria are met, the person in question should not be considered a Traditional Aborigine and application of Aboriginal Customary Law would not be permitted.

[31]See para 94.

[32]There was no suggestion in Justice Toohey’s review of the 1976 Act that the definition should be changed: Seven Years On. Report to the Minister for Aboriginal Affairs on the Aboriginal Land Rights Act (Northern Territory) Act 1976 and Related Matters, AGPS, Canberra, 1984, 4-5, 37-9.