The Position of Torres Strait Islanders and South Sea Islanders

96. Torres Strait Islanders. The indigenous peoples of Australia include both Aborigines and Torres Strait Islanders, though the history of the two groups is very different.[33] In general it appears that Torres Strait Islander practices and customs are different from those even of North Queensland Aborigines, and more adaptable to the general law. Torres Strait Islanders are strictly monogamous, mostly church-married.[34] The most significant area of Islander ‘customary’ practice noted in the Field Report was that of adoption, especially of extra-marital children, by grandparents or other members of the extended family.[35] In recent years it appears that the practice has been followed of taking steps, after a year’s trial, to formalise such adoptions under the general law.[36] Torres Strait Islanders are not included in its Terms of Reference, which clearly refer to Aborigines only. The need for separate consideration of Torres Strait Islanders is supported by the acknowledged differences between the two groups, especially in the field of customary laws, and by the difficulty of dealing with disparate groups in the same Report. It is also consistent with most legislative and administrative practice. For example, the Racial Discrimination Act 1975 (Cth) s 3(1) defines an Aborigine as ‘a descendant of an indigenous inhabitant of Australia but does not include a Torres Strait Islander’ — the latter being defined separately. In September 1971 the definition of ‘Aboriginal’ adopted by the Department of Aboriginal Affairs read:

An Aboriginal is a person of Aboriginal descent who claims to be an Aboriginal and is accepted as such by the Community with which he is associated.

Following representations from Torres Strait Islanders in 1972, the definition was amended to read:

An ‘Aboriginal’ or ‘Torres Strait Islander’ is a person of Aboriginal or Islander descent who identifies as an Aboriginal or Islander and is accepted as such by the Community with which he is associated.[37]

However, difficulties could arise from the exclusion of Torres Strait Islanders from the scope of this Report for all purposes. Irrespective of their differences, the fact remains that Islanders, are indigenous inhabitants of parts of Australia, who, like Aborigines, have been greatly affected by European settlement. In other respects too the Reference is relevant to both groups. Questions of local ‘community justice’ mechanisms are equally relevant, since both groups face difficulties in the maintenance of order in isolated communities. Other shared problems include the need for community development and for a measure of self-government. The Terms of Reference are directed at the recognition of Aboriginal customary laws, rather than the distinct traditions of Torres Strait Islander societies. To the extent that Torres Strait Islanders seek legal or administrative changes to deal with their special problems, these will have to be the subject of separate investigation. However the difficulties referred to above demonstrate that no clear-cut distinction can be drawn for all purposes between Aborigines and Torres Strait Islanders. In the course of its inquiry the Commission has been made aware of some of the problems shared by Aborigines and Torres Strait Islanders. Some of the proposals in this Report can appropriately apply to both groups to deal with these shared problems, for example, in the areas of local justice mechanisms[38] and hunting and fishing rights.[39] In Part VIII of this Report the Commission recommends that a process of consultation take place with representatives of Aboriginal communities who would be affected by the proposals in this Report. Given the relevance of some at least of these recommendations to Torres Strait Islanders, they should also be part of this process of consultation, with a view to the possible extension of specific recommendations to their own situation.

97. South Sea Islanders. The Commission did receive submissions that South Sea Islanders should be included with the scope of the Report.[40] But the Commission’s Terms of Reference do not allow for any such extension. In 1975, after an inter-departmental investigation,[41] it was decided that South Sea Islanders should not be equated with the indigenous peoples of Australia for Commonwealth purposes. A further variation of the Commonwealth’s administrative definition, to clarify the distinction between Torres Strait Islanders and South Sea Islanders and to simplify the provision of documentary evidence of Aboriginality from Aboriginal communities, was accordingly introduced in November 1975.[42] South Sea Islanders do have special needs in the light of their own history. The Interdepartmental Committee on South Sea Islanders in Australia found that after 80 years in Australia, the 3000-3500 Islanders were a disadvantaged minority:

Their socio-economic status and conditions have generally been below those of the white community, thus giving the group the appearance of being a deprived coloured minority. The Committee feels that it has accumulated sufficient evidence that Islanders suffer some disadvantages … Islanders in general are not fully aware of existing community programs and benefits and … a systematic effort should be made to ensure that such programs … are brought directly to the attention of, and are utilised by, eligible Islanders. Islanders are dispersed in small communities in a semi-rural environment where there is little incentive for change … They lack the financial resources and organisational skills necessary to overcome the problems of dispersion and to develop programs of self help …[43]

However the Committee concluded that this did not establish a case for equating South Sea Islanders with the indigenous peoples of Australia.[44] In the light of this conclusion, the Commission’s view is that the Terms of Reference do not extend to South Sea Islanders.

[33]See ALRC, ACL Field Report 6, The Torres Strait Islands, Queensland, 1979, 14, 18, 38-9, 43.

[34]id, 15.

[35]ACL Field Report 6, 14, 18.

[36]The Field Report concluded that

It cannot be said that the Queensland Islander Courts administer customary law. This does not necessarily mean that customary law or traditional rules do not exist in these communities and are not dealt with by the courts from time to time.

id, 38. Further on the Queensland Courts see para 723-46. For claims to land and marine resources in the Torres Strait based on tradition see para 901, 942-5.

[37]DAA Report (1981) 5-7.

[38]See Chapter 31.

[39]See Chapter 36.

[40]F Bandler & J Homer, Submission 113 (2 January 1979), Submission 119 (20 February 1979).

[41]Interdepartmental Committee on South Sea Islanders in Australia, convened under the chairmanship of the Department of Social Security.

[42]DAA Report (1981) 7-8.

[43]Summary of the main findings of the Inquiry by the Interdepartmental Committee on South Sea Islanders in Australia, 78 Parl Debs (Senate) (13 September 1978) 528, 529.