Attorney-General (Cth) v State of Queensland

(a) the first respondent was not qualified to stand for election under s. 102 of the Act because he is not an "Aboriginal person" or "Torres Strait Islander", as is required by s. 102(1)(a) and s. 101(a); and (b) votes were cast by persons who were not entitled to vote under s. 101 of the Act because they were not "Aboriginal persons" or "Torres Strait Islanders". I directed that the question of the true meaning of the expression "Aboriginal person" in the Act be determined as a preliminary issue in these proceedings. No party was concerned with the construction of the term "a Torres Strait Islander" in the Act: the term does not relate to any live issue in this litigation. The petitioner submitted that the term "Aboriginal person" in the Act means a descendant of those people who inhabited Australia at or before the time of British settlement. The third respondent made a similar submission but also contended that biological descent was by itself "a necessary, and sufficient, condition for eligibility to vote as an Aboriginal person". The difference between the positions adopted by the petitioner and the Minister is that the Minister submitted that any degree of Aboriginal genetic material, no matter how small, was enough to bring a person within the expression "Aboriginal person" while the petitioner submitted that, if all that could be shown in a particular case was a small degree of Aboriginal genetic material, then it would only be if the person either identified himself as an Aboriginal or was accepted by Aboriginal persons as one of them that he could come within the expression "Aboriginal person" in the Act. Although counsel for the first respondent repeatedly said that the first respondent supported the submissions on behalf of the Minister, he advanced some comments, made without reference to authority, to the effect that the expression "Aboriginal person" could mean a person who identifies himself as an "Aboriginal" and is accepted by the Aboriginal community as an Aboriginal even though he is not to any extent of Aboriginal descent. The second respondent, the Australian Electoral Commission, appeared only to indicate that it would abide the order of the Court. By s. 4 of the Act the term "Aboriginal person" is defined in an exclusive way to mean "a person of the Aboriginal race of Australia". The Legislature has made no attempt to further define this term. It follows that the critical words in the definition, "the Aboriginal race of Australia", bear the meaning they have in ordinary usage, subject to any qualification that the statutory context in which the expression appears may require. Although the term "race" has been described, in the context of a statute outlawing discrimination against anyone on the ground of their race, as an elusive term - Mandla (Sewa Singh) v Dowell Lee [1983] 1 Q.B. 1 at 19 - and, in the context of the Commonwealth Parliament's power to make laws for the people of any race pursuant to s. 51(xxvi) the Constitution prior to the 1967 amendment, as a hopelessly imprecise term - evidence of Mr. P.D. Phillips given to the 1929 Royal Commission on the Constitution of the Commonwealth - Parliament is here using the word "race" to denote a single group that still exists within the general Australian population. The adjectival use of the word "Aboriginal" identifies this group. The preamble to the Act (to which regard can be had in reading expressions in it in their statutory context: Wacando v The Commonwealth (1981) 148 C.L.R. 1 at 23) provides, in part: "WHEREAS the people of Australia voted overwhelmingly to amend the Constitution so that the Parliament of Australia would be able to make special laws for peoples of the aboriginal race; AND WHEREAS the people whose descendants are now known as Aboriginal persons and Torres Strait Islanders were the inhabitants of Australia before European settlement; AND WHEREAS they have been progressively dispossessed of their lands and this dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal persons and Torres Strait Islanders concerning the use of their lands; AND WHEREAS it is the intention of the people of Australia to make provision for rectification, by such measures as are agreed by the Parliament from time to time, including the measures referred to in this Act, of the consequences of past injustices and to ensure that Aboriginal persons and Torres Strait Islanders receive that full recognition within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire; AND WHEREAS it is also the wish of the people of Australia that there be reached with Aboriginal persons and Torres Strait Islanders a real and lasting reconciliation of these matters; AND WHEREAS it is the firm objective of the people of Australia that policies be maintained and developed by the Australian Government that will overcome disadvantages of Aboriginal persons and Torres Strait Islanders to facilitate the enjoyment of their culture; AND WHEREAS it is appropriate to further the aforementioned objective in a manner that is consistent with the aims of self-management and self-sufficiency for Aboriginal persons and Torres Strait Islanders; AND WHEREAS it is also appropriate to establish structures to represent Aboriginal persons and Torres Strait Islanders to ensure maximum participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of programs and to provide them with an effective voice within the Australian Government; AND WHEREAS the Parliament seeks to enable Aboriginal persons and Torres Strait Islanders to increase their economic status, promote their social well-being and improve the provision of community services;"

Section 3 of the Act provides: "Objects 3. The objects of this Act are, in recognition of the past dispossession and dispersal of the Aboriginal and Torres Strait Islander peoples and their present disadvantaged position in Australian society: (a) to ensure maximum participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of government policies that affect them; (b) to promote the development of self-management and self-sufficiency among Aboriginal persons and Torres Strait Islanders; (c) to further the economic, social and cultural development of Aboriginal persons and Torres Strait Islanders; and (d) to ensure co-ordination in the formulation and implementation of policies affecting Aboriginal persons and Torres Strait Islanders by the Commonwealth, State, Territory and local governments, without detracting from the responsibilities of State, Territory and local governments to provide services to their Aboriginal and Torres Strait Islander residents."

These provisions show that Parliament has used the expression "Aboriginal race of Australia" 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. It follows that an "Aboriginal person" is, for the purposes of this Act, one of those descendants. In so using the expression "Aboriginal race of Australia" Parliament has in my opinion here done nothing more than give this expression the same meaning it has in ordinary speech. Dictionary definitions of "race" all refer to the notion of common descent: both the Macquarie Dictionary, 2nd Ed. and the Oxford English Dictionary, 2nd Ed., give as the primary meaning of the word "race" the following: "a group of persons connected by common descent ...". While the Macquarie Dictionary gives as the meaning of "aborigine": "one of a race of tribal peoples, the earliest inhabitants of Australia", the Oxford English Dictionary gives as a meaning of the word "aboriginal": "An original inhabitant of any land, now usually as distinguished from subsequent European colonists. Also spec. one of the aboriginal inhabitants of Australia." It is this meaning that the Australian National Dictionary takes as the primary meaning of the word in Australian English usage. That Parliament intended the expression "Aboriginal persons" as defined in the Act to bear the meaning it has in ordinary speech is I think clearly shown by the second paragraph of the preamble which records Parliament's recognition of the expression "Aboriginal persons" as one in current community usage to identify descendants of the inhabitants of Australia before European settlement. 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 advanced on behalf of the first respondent 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 (a possibility mentioned by the first respondent) will not, because of the statutory requirement for descent, bring that person within the description "Aboriginal person". The next question is whether the expression "Aboriginal person" denotes only full blood descendants of the pre-European settlement inhabitants of the continent or whether it comprehends persons of mixed descent, i.e., persons who possess some Aboriginal genes. The preamble and s. 3 of the Act, in referring to the people whose descendants are now known as Aboriginal persons and also to Aboriginal peoples, suggest that this comprises a large group. The same suggestion is implicit in various provisions of the Act, including s. 7 (which prescribes the functions of the Aboriginal and Torres Strait Islander Commission) and s. 94 (which prescribes the functions of each Regional Council). Section 91 divides the whole of Australia, for the purposes of the Act, into 36 regions, five of which comprise the State capitals Sydney, Brisbane, Adelaide, Hobart and Perth (although the precise boundaries of these and the other 31 regions are as determined from time to time by the Minister). I can take judicial notice of the fact that there are few, if any, full blood descendants of the pre-settlement inhabitants of the continent living in any of these five regions: twenty years ago judicial notice was taken that "for a long time it has been widely known that there remain very few [Aboriginal] persons of the full blood" in the whole continent: Re Bryning [1976] V.R. 100 at 103. Parliament can be taken to have been well aware of this fact when it enacted this legislation which establishes an elaborate system designed to vest in Aboriginals and Torres Strait Islanders political, administrative and financial powers to be used for the benefit of all persons of those races. Such a legislative scheme is unlikely to have been intended to benefit only a tiny group within the Australian community. A reading of the Act against this factual background requires acceptance of the proposition that the expression "Aboriginal person" comprehends not only full blood descendants of the original inhabitants, but also persons who possess some Aboriginal genetic material. Persons with a limited Aboriginal genetic heritage are therefore not necessarily excluded from being "Aboriginal persons" within the meaning of that term in the Act. Such a reading conforms to Australian vernacular usage, something recognised in Re Bryning, supra, where Lush J said at 103: "In this country, in everyday usage, the meaning of the words "aborigine" and "aboriginal" varies. In contrast, for instance, with the word "half-caste" as in the old statutes, they undoubtedly mean a man of the full blood, but when used to describe a general body of persons, without adjectives and without contrasting words or phrases, I do not think that they have had this meaning for many years. It must, I think, be remembered that this is a word that is probably much more widely used in this country than in other English-speaking countries. In this country it has certainly been used to describe persons in groups or societies irrespective of the question of mixture of blood."

The remaining question for decision is the correctness of the Minister's proposition that aboriginal descent is not only a necessary but the sufficient condition of eligibility to vote as an "Aboriginal person" for the purposes of the Act. The Minister supports this proposition by submitting that the statutory definition of "Aboriginal person" operates by reference to genetic factors, not social ones, so it is irrelevant to have regard to cultural considerations; race (so it is said) is determined at birth and cannot subsequently be acquired or relinquished, while culture is acquired from a person's upbringing and environment and is not a necessary element of a person's race. The Minister also submits that the imposition of a cultural test in addition to descent would wrongly exclude from the benefits of the Act a significant number of Aboriginal people, including those who, in accordance with official policies of past times, were removed from their Aboriginal families and communities and brought up without any contact with their Aboriginal heritage. I cannot accept the Minister's argument that the only relevant consideration is the genetic one. It ignores the fact that the Act itself contains what I take to be clear indications that the expression "Aboriginal person" bears the meaning it has in current community parlance. There is extensive discussion in the judgments in the Full Court of this Court in Attorney-General (Cth) v State of Queensland (1990) 94 A.L.R. 515 of the current meaning in ordinary speech of the word "Aboriginal". This discussion took place in the context of an examination of a decision by a Royal Commissioner appointed under Letters Patent issued under the Royal Commissions Act 1902 (Cth) and the Commissions of Inquiry Act 1950 (Qld) to inquire into deaths of aboriginals whilst in police custody. The Letters Patent did not contain any definition of the term "aboriginal". The Commissioner held in effect that any degree of aboriginal descent, without more, was sufficient to bring a person within the expression "Aboriginal" in the Letters Patent. The primary judge, Pincus J, whose decision is reported as State of Queensland v Wyvill (1989) 90 A.L.R. 611, disagreed. He considered that that word in the Letters Patent had the meaning it bore in common speech and said at p. 615: "There must be many people in Australia with, say, 1/64th or 1/32nd Aboriginal genes, the presence of which is unknown to them and undetected by others. Even if such a trace of Aboriginal ancestry were proved, in my opinion, the person concerned would not ordinarily be called an `Aboriginal'..."

His Honour added at p. 616: "I am further of opinion that the ordinary meaning of the word Aboriginal', as used in the community, is a broad one. Ordinary usage would not apply the term to a person believed to have no Aboriginal ancestry, however closely associated with Aboriginals. It would be inconsistent with ordinary usage to describe such a person as an Aboriginal'; but on the other hand it is not the case that proof of any degree of such ancestry, however slight, would be enough in itself to justify the use of the term. To return to examples given above [at 615], which after two centuries of European occupation are by no means fanciful, the discovery that a person had a small trace of aboriginal descent would not, without more, ordinarily cause those who knew him to describe him as an `Aboriginal'."

Although the Full Court overturned Pincus J's decision at 90 A.L.R. 611 on other grounds, Jenkinson and Spender JJ agreed that the word "Aboriginal" in the Letters Patent had its meaning in ordinary speech and also generally agreed with Pincus J's understanding of that meaning, although they examined in some detail the relevance of cultural considerations, i.e., self-identification as an aboriginal and acceptance as such by the Aboriginal community, to whether a person would ordinarily be regarded as an Aboriginal. In this regard, Jenkinson J said, at pp. 517-8: "I apprehend that in vernacular use in Australia at this time the word Aboriginal', used as a noun, is applied only to a person thought to be a descendant of the people who occupied this country before British settlement, or thought possibly to be a descendant of those people. Descent, at least as a real possibility, is essential, as I would find. In a case where the proportion of Aboriginal blood in a person of mixed race is thought to be small, or where uncertainty exists as to whether a person is in any degree of Aboriginal descent, the word may be used or eschewed in reference to that person under the influence of what may be called cultural circumstances. ... I would find that, in reference to him who identifies himself as a person of Aboriginal descent and who is recognised as an Aborigine by the Aboriginal community, the word Aboriginal' will be used, notwithstanding that he is thought to be in only small part of Aboriginal descent, or to be not certainly, only possibly, of Aboriginal descent at all. Speaking of the phrase `people of any race' in s 51(xxvi) of the Constitution, Deane J said in Commonwealth v Tasmania (1983) 158 CLR 1 at 274; 46 ALR 625 at 817:

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 an Aborigine.' If Deane J is there marking out the furthest reach of the term in vernacular use, I respectfully agree with his finding. I could not find that either the identification or the recognition to which his Honour refers is necessary to attract the application of the term in ordinary parlance to a person known, or by the speaker believed to be, of wholly Aboriginal descent. Whatever the lengths to which such a person might go to deny or to conceal his membership of that group, and however complete and emphatic the denial might be of recognition by the Aboriginal community of that person as an Aborigine, he would in ordinary speech be called an Aborigine by those who knew, or thought they knew, his descent to be wholly Aboriginal. On the other hand, concerning persons whose genetic claims to the appellation are exiguous or uncertain in proof - `persons ... who are, so to speak, on or near the boundaries of the racial classification as ordinarily understood' - vernacular usage allows an influence to conduct of the kind Deane J has indicated. In such a case the person may place himself outside the racial classification of Aboriginality by conduct which repudiates membership of the class, or he may place himself within that classification by conduct identifying himself as an Aborigine. So too may rejection and acceptance by the Aboriginal community influence the placing of that person within or beyond that boundary. The closer to the boundary the person's genetic history - or, more accurately, the speaker's belief about that history - places him, the greater the influence of his conduct and of the conduct of the Aboriginal community."

Spender J said much the same at 523-4. It is necessary to observe, firstly, that while, as Jenkinson J said, a person might be described in ordinary speech as an aboriginal in the absence of clear proof of aboriginal descent where there was uncertainty and only the possibility of that, and while the term "Aboriginal person" is used in the Aboriginal and Torres Strait Islander Commission Act 1989 generally in the vernacular, the preamble and s. 3 of the Act show that proof of actual aboriginal descent is required before a person can be regarded as an "Aboriginal person" for the purposes of that Act. Secondly, I do not read Jenkinson J as suggesting that both self-identification and aboriginal communal recognition must exist in borderline cases before a person would be described in ordinary speech as an aboriginal: his Honour seems to me clearly, and in my respectful opinion correctly, to recognise in the concluding passage that I have quoted from his judgment that where there is proof of only limited aboriginal descent, that fact, coupled with self-identification alone or with communal recognition alone, may, in a given case, be sufficient to result in the person in question being described in ordinary speech as an Aboriginal. That is, I think, also the view of Spender J at pp. 523-4 of his judgment. I do not think the dictum of Deane J in the Tasmanian Dams case, to which Jenkinson J referred, should be regarded as containing an exhaustive description of the meaning in ordinary speech of the term "aboriginal". I respectfully agree with what French J said of this dictum in Attorney-General (Cth) v State of Queensland, supra, at 538-9: "But his Honour's definition in that case should not be seen as representing the contemporary content of the word Aboriginal' irrespective of context or purpose. Although expressed as the conventional meaning', it was formulated in a discussion on the question whether laws for the protection of the Aboriginal cultural heritage in Tasmania were within the constitutional meaning of laws with respect to `the people of any race' under s. 51(xxiv) of the Commonwealth Constitution. It is not surprising that in that context emphasis should be placed upon elements of self-identification and communal recognition as well as the question of descent."

Although an opportunistic claim by a person to identification as an Aboriginal would not, I think, be regarded by ordinary Australians as sufficient to attract to that person the status of "Aboriginal" even if he could prove he possessed a small quantum of Aboriginal genes, in my opinion a person of limited Aboriginal heritage who nevertheless genuinely identified himself or herself as Aboriginal would be likely to be described by ordinary Australians as an Aboriginal, even without Aboriginal communal recognition as such. Of course, genuine self-identification plus Aboriginal communal recognition would very likely lead to a person with only a small degree of aboriginal descent being described in ordinary speech as an Aboriginal. Counsel for the Minister referred to the possibility of there being many persons of limited aboriginal descent who learn of that fact only after a time, but who then feel a genuine desire to proclaim their aboriginality; counsel referred to past government policies of separating Aboriginal infants from their families and of seeking to integrate them into white society. I do not think that Australians using their ordinary manner of speech would deny to such persons who discovered their Aboriginal heritage in maturity and who genuinely desired to acknowledge that heritage the description "Aboriginal". Communal aboriginal recognition as an Aboriginal person would not in such a case be required before the person would be so described. In my opinion, in order for someone to be described as an "Aboriginal person" within the meaning of that term in the Act, some degree of Aboriginal descent is essential, although by itself a small degree of such descent is not sufficient. A substantial degree of Aboriginal descent may, by itself, be enough to require a person to be regarded as an "Aboriginal person". Jenkinson J, in Attorney-General (Cth) v State of Queensland, supra, at 518, referred to the impossibility of a person "of wholly Aboriginal descent" being able to avoid being described in ordinary Australian usage as Aboriginal, irrespective of any steps he personally took to avoid such an appellation. It is I think where a person is either wholly of Aboriginal descent or where the degree of Aboriginal descent is so substantial that the person possesses what would be regarded by the generality of the Australian community as clear physical characteristics associated with Aboriginals that the person would be described in ordinary speech as "Aboriginal". It is racial origin not external physical appearance that governs whether a person is "Aboriginal" for the purposes of the Act. But as the High Court said in Ofu-Koloi v The Queen (1956) 96 C.L.R. 172 at 176, in the context of discussing difficulties in borderline cases of determining whether a person came within the classification "European", where that word in a particular statute had its vernacular meaning: "Pigmentation is not the chosen test. Racial origin or derivation is the criterion. But, of course, pigmentation is a characteristic of race and may be of cogent evidentiary significance." In such cases, questions of self-identification or self-denial of aboriginality or Aboriginal communal recognition or non-recognition would be irrelevant. But a person's external appearance may be deceptive of his or her racial origins and proof in such a case that a person was not of Aboriginal descent at all would exclude that person from the range of people who come within the expression "Aboriginal persons" in the Act; such proof would also preclude the person from being described in ordinary speech as Aboriginal. The less the degree of Aboriginal descent, the more important cultural circumstances become in determining whether a person is "Aboriginal". A person with a small degree of Aboriginal descent who genuinely identifies as an Aboriginal and who has Aboriginal communal recognition as such would I think be described in current ordinary usage as an "Aboriginal person" and would be so regarded for the purposes of the Act. But where a person has only a small degree of Aboriginal descent, either genuine self-identification as Aboriginal alone or Aboriginal communal recognition as such by itself may suffice, according to the circumstances. 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. There was some discussion at the hearing about whether I should formally pronounce an order incorporating my conclusions or simply state them but defer incorporating them in an order until I give the final decision on the petition. The latter is a course open to the Court: see Landsal Pty. Ltd. (In liquidation) v REI Building Society (1993) 41 F.C.R. 421 at 427-8. In argument, reference was made to clause 24 of Schedule 4 to the Act; clause 2(3) is also relevant to whether any order I may make at this stage is appealable to the Full Court. However, the petitioner and the first respondent both expressed a preference for me to follow the latter course. It was not a matter upon which the Minister wished to make any submissions. I will accede to the course proposed by the petitioner and the first respondent and will publish only my reasons without making any formal order. The further hearing of the petition is adjourned to a date to be fixed for further directions. I certify that this and the preceding 18 pages are a true copy of the reasons for judgment herein of the Honourable Justice Drummond. Associate: Date: 3 February, 1995 Counsel for the petitioner: K.F. Holyoak Solicitors for the petitioner: Connolly & Associates Counsel for the first respondent: P.S. Hardcastle Solicitors for the first respondent: RFG Finlayson & Associates Solicitor for the second respondent: Australian Government Solicitor Counsel for the respondent by election: E. Wilheim Solicitors for the respondent by Australian Government election: Solicitor Date of Hearing: 30 June, 1994