EVIDENCE - whether the principle of Briginshaw v Briginshaw applicable to a determination that a person is not an Aboriginal person - whether such a determination has "important and grave" consequences.

REASONS FOR JUDGMENT INDEX Introduction 2 The Act 3 An Aboriginal Person 4 The Sociological Context 6 Descent 8 Self-Identification 8 Communal Recognition 10 Onus and Standard of Proof 11 The Aboriginal Tasmanians 15 The Petitioners' case 16 Tasmanian Historical and Archival Records 18 The Respondents 22

1. Charles Wolf 22
2. Brian Fisher 27
3. John Clark 32
4. Debbie Oakford 37
5. Mick Courto 44
6. Kerry Argent 48
7. Beverley Wood 51
8. Rosalie Medcraft 54
9. Lance Lesage 58
10. Baden Bone 60
11. John Coleman (Clark) 68 Relief 73
12. The Election 73
13. Illegal Practice 74
14. Conclusions 79 Costs 79 Concluding Observations 80 INTRODUCTION Aboriginal persons and Torres Strait Islanders are qualified to stand as candidates for election, held under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ("the Act"), to a Regional Council. Section 4(1) of the Act defines an "Aboriginal person" as "a person of the Aboriginal race of Australia" and a "Torres Strait Islander" as "a descendant of an indigenous inhabitant of the Torres Strait Islands". Each of the first eleven respondents, as an "Aboriginal person", stood as a candidate in the Regional Council election for the Hobart Region held pursuant to s 132 of the Act on 12 October 1996. The respondents Charles Wolf, Brian Fisher, John Clark and Debbie Oakford were declared as duly elected Councillors of the Regional Council but the respondents Mick Courto, Kerry Argent, Beverley Wood, Rosalie Medcraft, Lance Lesage, John Coleman and Baden Bone were not elected. The thirteenth to twentieth respondents were returned in the election as Councillors for the Hobart Region. They were not challenged by the petitioners as not being qualified to stand, and took no part in the proceeding. The first issue in the present case is whether each of the first eleven respondents is an "Aboriginal person" as defined in the Act. If any of these respondents is not an "Aboriginal person" that respondent was not qualified to stand as a candidate for election for a Regional Council: see ss 101(a) and 102(1)(a). As a result of the complexities of the voting system a recounting of votes cast for ineligible candidates, whether elected or not, might have the potential to affect the outcome of the election. The second issue, which arises if ineligible candidates were elected or stood for election, is whether the Court is to exercise its jurisdiction to invalidate any candidate's election or the election itself under cl 12(3) of Sch 4 of the Act. The petition to the Court, issued pursuant to cl 2 of Sch 4 of the Act, disputes the validity of the election and the declaration of the poll for the election. Declarations are sought by the petitioners that the first eleven respondents were not qualified and therefore not eligible to be elected. Originally the petitioners asked the Court for an order that the election be declared void but they did not persist with that request at trial. However, the petitioners accepted that such an order might be appropriate, or even necessary, if they succeed on their petition. The parties have filed in excess of sixty-two affidavits which, together with annexures, have filled Court Books of over 1000 pages. Numerous exhibits have been tendered and a large number of witnesses were cross-examined for in excess of five days. THE ACT The Act, inter alia, establishes Regional Councils as integral parts of a structure of self-determination and self-management for Aboriginal persons and Torres Strait Islanders. Under the Act, Aboriginal persons and Torres Strait Islanders are to comprise the electorate and the candidates eligible to be elected to Regional Councils. The statutory definitions of "Aboriginal person" and "Torres Strait Islander" in s 4(1) prescribe the criteria for identifying those who are to comprise the electorate, the candidates and the beneficiaries of the Act's objects. Those objects are set out in s 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." Given the widely differing histories and cultures of Aboriginal people in various parts of Australia, identification of an Aboriginal person for the purposes of the Act can raise difficult questions of Aboriginal descent, self identification and communal identification. Save for cl 23 of Sch 4, which requires that the Court: "...shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not", the Act gives little guidance as to how to resolve the difficulties of proof inherent in tracing descent and establishing identification. The Act is designed, inter alia, to redress past dispossession, dispersal and alienation of Aboriginal persons, yet the most dispossessed, dispersed and alienated Aboriginals might find it hardest to establish their descent and identification for the purposes of the Act. Closely associated with, and indeed a partial cause of, that anomaly is that the European colonial deconstruction of Aboriginality in the 19th century is now sought to be rectified, in part, by a post-colonial statutory reconstruction of Aboriginality at the end of the 20th century. Whether there is a more satisfactory method of defining an Aboriginal person for the purposes of the Act is a matter for another day. The problem in the present case is determining a practical and realistic approach to the definition of an Aboriginal person which gives effect to, rather than frustrates, the Act and its objects. AN ABORIGINAL PERSON A number of cases have considered the criteria for determining whether persons are Aboriginal persons or persons of the Aboriginal race of Australia. Several of the cases were drawn together in Gibbs v Capewell (1995) 128 ALR 577 by Drummond J who determined, as a preliminary issue, the meaning of the expression "Aboriginal person" as defined in s 4(1) of the Act. His Honour said (at 580) that the Act's preamble and the objects set out in s 3 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." The second paragraph of the preamble to the Act, to which his Honour referred, states: "[T]he people whose descendants are now known as Aboriginal persons and Torres Strait Islanders were the inhabitants of Australia before European settlement." It has been recognised that statutory definitions which relate to a "race", including the Aboriginal race, have a "wide and non-technical meaning" (The Commonwealth v Tasmania; The Tasmanian Dam Case (1983) 158 CLR 1 at 273-4 per Deane J) and "do not call upon the courts to make an ethnological inquiry of a scientific, historical or scholarly character": (see Ofu-Koloi v The Queen (1956) 96 CLR 172 at 175 per Dixon CJ, Fullagar and Taylor JJ). In Ofu-Koloi at 175 their Honours observed that: "The fact that at, so to speak, the edges of the racial classification there is an uncertainty of definition cannot make it difficult to apply it in the common run of cases." Applying a similar approach in Gibbs v Capewell, Drummond J adopted the ordinary meaning of the words "Aboriginal persons" as used in the modern Australian community. The substance of Drummond J's conclusions may be summarised as follows: · the words "Aboriginal race of Australia" bear the meaning they have in ordinary usage subject to any qualification that the statutory context in which they appear may require (578); · the Aboriginal race of Australia refers to the group of persons in the modern Australian population who are descended from the inhabitants of Australia at the time immediately prior to European settlement (580); · some degree of descent is a necessary, but not of itself a sufficient, condition of eligibility to be an Aboriginal person (581); · a small degree of Aboriginal descent coupled with genuine self-identification or with communal recognition may, in a given case, be sufficient for eligibility (583-5); · a substantial degree of descent, given the general communal recognition of Aboriginality that usually accompanies it, may by itself be enough to require that the person be regarded as an "Aboriginal person" (584); · communal recognition as an Aboriginal person may, given the difficulties of proof of Aboriginal descent flowing from, among other things, the lack of written family records, often be the best evidence available of proof of Aboriginal descent (585). I agree with these conclusions of Drummond J. I would add that his Honour's rejection of the Minister's submission, that some descent alone is sufficient, is supported by the definition in s 4(1) of a "Torres Strait Islander" which, in contrast to that of an "Aboriginal person", is based on descent alone. In adopting a definition based on a person being of "the Aboriginal race of Australia" rather than a "descendant of an indigenous inhabitant of Australia" or "a descendant of the persons of the Aboriginal race inhabiting Australia before European settlement" the legislature appears to have intended that descent alone is not a sufficient criterion for recognition as an "Aboriginal person". THE SOCIOLOGICAL CONTEXT It is helpful to consider the sociological context in which identification as an Aboriginal person occurs in Australia to understand the manner in which descent, self-identification and communal recognition are interrelated. Sociologists recognise the relationship between the formation of an individual's identity and that individual's social environment. An individual's self-conception does not occur in isolation but must be to some extent the result of interactions with, and responses from, others. "From a sociological perspective, identity may be defined in terms of social interaction. Berger and Luckmann, for example, suggest: 'Identity is formed by social processes. Once crystallized, it is maintained, modified, or even reshaped by social relations.'" (Dierdre F Jordan, "Aboriginal Identity: uses of the past, problems for the future?" in Past and Present - The Construction of Aboriginality ed J R Beckett, (1988), at 109) These social processes, particularly in the case of Aboriginal people, are numerous and diverse: "The construction of Aboriginality in Australia has been achieved through a variety of processes, in various places and at various levels of society, giving rise to a complex interaction between the loci of construction. At the local level, the most striking line of tension may seem to lie between what Aboriginal people say about themselves and what others say about them. But crosscutting this is another field of tension between the ideas of Aboriginality (and non-Aboriginality) that people of all kinds construct and reproduce for themselves, and the constructions produced at the national level by the state in its various manifestations, the mass media, science, the arts and so on." (J R Beckett "The past in the present; the present in the past: constructing a national Aboriginality" in Beckett, supra at 191) These observations serve to emphasise the extent to which self-identification, although superficially discrete from the existence of community recognition, interacts with and is indeed a product of the social and communal framework surrounding an individual. The development of identity as an Aboriginal person cannot be attributed to any one determinative factor. It is the interplay of social responses and interactions, on different levels and from different sources, both positive and negative, which create self-perception and identity. The complexity of the formulation of Aboriginal identity is compounded by the status of Aboriginal people as a minority racial or ethnic group. As such, Aboriginal identity was influenced by interaction with the dominant Australian society, as well as by the structures of a person's immediate Aboriginal society. The identity Aboriginal people acquired from each society's conceptions could be conflicting and inconsistent, a problem exacerbated by the shifting nature of "white" society's policies relating to indigenous people: "...the identity offered by white society has not been predictable or stable. The dominant group, at different periods, has offered different identities to Aboriginal people. For example, the latter were encouraged by government bodies in the 1950s and 1960s to become assimilated into white society, acquiring a status having certain cultural and behavioural expectations. In the 1970s and 1980s, the theorising of governments concerning self-determination and self-management for Aboriginal people, pushed the latter back into an 'identification with their own people' requiring them to construct quite different attributes by which they could be identified as Aboriginal." (Jordan, supra, at 111). Attempts by non-Aboriginal Australians to assess questions of Aboriginal identity have been problematic because of these shifting preconceptions. J M Jacobs notes that the fact of displacement of Aboriginal people from traditional areas and their urbanisation may mean that these people: "do not display any of the characteristics which white Australia accepts as hallmarks of a tradition-oriented lifestyle. This is not to say these groups do not have a strong sense of Aboriginality based on culturally unique constructs." (J M Jacobs, "The Construction of Identity" in Beckett, supra, at 33). These quotations reinforce the view that Aboriginal identity cannot be assessed according to inflexible notions of what characterises an Australian (or Tasmanian) Aboriginal person. In my view the current Australian community accepts that the widely divergent and differing histories and experiences of the process by which an Aboriginal person acquires and develops an Aboriginal identity is, inherently, a process personal to and discrete for each individual. Accordingly, any consideration of descent, self-identification and communal recognition as factors relevant to determining whether a particular individual is an Aboriginal person must not only recognise the interaction and interdependence of these factors but do so in the context of their particular application in relation to that person. In that context I turn to consider each of the factors. DESCENT Although in Gibbs v Capewell Drummond J referred at 583 to the requirement of "proof of actual Aboriginal descent", in my view his Honour was not referring to proof according to any strict legal standard. Rather, his Honour was referring to the requirement that under the Act an Aboriginal person must have some Aboriginal descent. Accordingly if, after considering all of the material that is logically probative of descent, the Court is satisfied that a person does not have some descent then the person cannot be an Aboriginal person for the purposes of the Act. As I point out hereafter, evidence as to the process by which self-identification and communal identification occurs can be logically probative of descent. SELF IDENTIFICATION Self-identification does not occur in a vacuum; it encompasses the process by which a person comes to recognise that he or she is an Aboriginal person. In a sense the very act of standing as a candidate for an election held under the Act is a public proclamation of that identity. However, it is the underlying self-identification and how it came about that is of significance. What it means for a particular individual to be an Aboriginal person will be highly subjective and will vary from individual to individual and community to community. It is the genuineness of the identification, rather than its content, that is the critical issue. To be genuine it is sufficient that the self-identification is bona fide and that the grounds for it are real and not hypothetical or spurious. Although in Gibbs v Capewell Drummond J said at 584 that an "opportunistic" claim to identification as an Aboriginal person would not be "sufficient", in my view that statement was intended to be no more than a possible example of a self-identification that may not be genuine. "Opportunism", as such, is an inherently difficult criterion to apply to self-identification of Aboriginality. The Act and other legislative schemes for the benefit of Aboriginal persons are designed to provide benefits to remove past and present disadvantage by creating special opportunities for Aboriginal persons. In that context opportunism may be no more than taking advantage of the opportunities specifically created for such persons. Once the Court is satisfied as to the genuineness of self-identification there is no need to consider the motives for it. Self-identification may start early in life when the person is told of his or her Aboriginal origins by those well placed to know of that fact. For example a child placed in the care of a foster parent, or a child of a parent of Aboriginal descent is likely to learn of his or her descent, often at an early stage of life. Oral histories passed down in that way can be relevant in at least two respects; they are part of the process by which self-identification occurs and can also be logically probative, if not proof, of descent. In relation to descent, identification evidence can be particularly significant in view of the absence or unreliability of written records of Aboriginal descent in a particular case. In Tasmania there was no requirement or process in place for recording Aboriginal descent or Aboriginality as such. Indeed, until recently it was the generally held view that Tasmanian Aborigines finally perished in 1876 when Truganini died in Hobart. (The Aboriginal Tasmanians, Lyndall Ryan, 2nd ed, 1996 at 1). Problems of identification have been exacerbated by the tragic historical fact that actual or perceived racism was such that many Aboriginal persons regarded their Aboriginal identification and public recognition of it with shame and as a distinct disadvantage. These problems are graphically illustrated in passages from two recent books. In Snake Cradle by Roberta Sykes (1997, Allen & Unwin), who describes herself as a "Black Australian", writes (at 172) about the response of her mother to her enquiries as a teenager about the colour of her skin - "'Is there Aboriginal blood in our family?' I asked her one day, while I was holding a long piece of fabric clear of the floor as she sewed it. 'Every family that's been up here for more than two generations has got a touch of the tar,' she responded, quite absent-mindedly. I was so stunned by her answer that I couldn't think of what to ask next. 'Almost every family,' she corrected herself. 'Well, why don't we ever say we're Aboriginal?' 'Because we're not! Don't start that business again, Roberta.' Mum was growing angry now and her attention was no longer distracted by the sewing. 'A touch of the tar doesn't make a person an Aborigine. Nobody in their right mind would want to be an Aborigine. You want to live in a bush hut? Then, say you're an Aborigine! You want to live worse than an animal?' 'But you're always saying I should be proud to be a coloured girl. When I ask you about where the colour comes from, you always talk about how rotten black people live, how they swing from trees and live in mud.'" Sally Morgan, who identifies as an Aboriginal person, tells in "My Place" (1987, Fremantle Arts Centre Press, at 97-8) of how as a teenager she came to learn from her sister of her Aboriginality after being told by her mother that the family was of Indian descent - "That night, as Jill and I were lying quietly on our beds, looking at a poster of John, Paul, George and Ringo, I said, 'Jill ... did you know Nan was black?'. 'Course I did.' 'I didn't, I just found out.' 'I know you didn't. You're really dumb, sometimes. God, you reckon I'm gullible, some things you just don't see.' 'Oh ...' 'You know we're not Indian, don't you?' Jill mumbled. 'Mum said we're Indian.' 'Look at Nan, does she look Indian?' 'I've never really thought about how she looks. Maybe she comes from some Indian tribe we don't know about.' 'Ha! That'll be the day! You know what we are, don't you?' 'No, what?' 'Boongs, we're Boongs!' I could see Jill was unhappy with the idea. It took a few minutes before I summoned up enough courage to say, 'What's a Boong?'. 'A Boong. You know, Aboriginal. God, of all things, we're Aboriginal!' 'Oh.' I suddenly understood. There was a great deal of social stigma attached to being Aboriginal at our school." The evidence given by several respondents demonstrates that the events described by the two authors were not uncommon. 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. COMMUNAL RECOGNITION Some form of communal identification or recognition will often form part of the process leading to self-identification. In determining whether there is communal identification or recognition the Court will consider the views held in a relevant Aboriginal, or even the general, community as to whether a person is regarded as an Aboriginal person. That evidence is relevant because in the modern Australian community such recognition is commonly the mode by which a person is identified as a person of the Aboriginal race of Australia. Communal identification may be based on physical, cultural, social or other attributes perceived in a particular community to exist in Aboriginal persons. Although the evidence will usually relate to views held by persons comprising the relevant community it is a communal, rather than personal, recognition that is relevant. Community, like identity, is a social construct. A community may be a human settlement within a particular locality, a local social system - comprising a set of relationships that take place wholly or mostly within a locality, or it may embrace a type of relationship between geographically dispersed individuals having some common sense of identity. (The MacMillan Student Encyclopedia of Sociology (ed M. Mann, 1983) at 56). The relevant community might be the general Aboriginal community in a particular locality or a much smaller part of that community whose members reside in a specific locality or have some common historical, cultural or social characteristic. In some instances a community might consist of an extended Aboriginal family living in a particular locality. The Court, in having regard to evidence of identification or recognition by any relevant community, need not be concerned with defining the relevant community or communities other than in the most general sense. The weight to be attributed to such communal recognition as is found to exist will vary according to the facts of the particular case. ONUS AND STANDARD OF PROOF The parties were in dispute over the issue of onus of proof. The petitioners contended that upon establishing a prima facie case, the onus shifted to the first eleven respondents to establish that they were Aboriginal persons. Counsel for the first eleven respondents save for the ninth respondent, Lesage, who did not appear ("the defending respondents") contended that the petitioners carried the onus to establish that they were not Aboriginal persons. The Australian Electoral Commission ("the Commission") referred to Blundell v Vardon (1907) 4 CLR 1463 where, at 1468, Barton J said that a petitioner, applying to the Court of Disputed Returns under the Commonwealth Electoral Acts 1902-5 is "to prove the allegations of the petition so far as they are not admitted." The Commission then submitted that the petitioners must establish to the Court's satisfaction the facts that would justify the grant of the relief sought by them. Schedule 4 makes provision for: · the petitioners to set out in the petition the facts relied upon by them (cl 3(a)); · the respondents to the petition (who may be the Commission, the Minister and those whose interests may be affected by the relief sought) to be parties (cll 7(2), 8(2) and 25; · the Court to try the petition (cl 9). These provisions imply that the trial of the petition is to be conducted as an adversarial civil proceeding. Accordingly, I can see no reason to depart from the principle applicable to such proceedings, and stated in respect of the Court of Disputed Returns in Blundell, that the petitioners are "to prove the allegations of the petition so far as they are not admitted". The critical allegation is that each of the first eleven respondents is not an Aboriginal person and, accordingly, was not entitled to stand as a candidate for election for the Regional Council. The issue for the Court is whether, on the material before it, the petitioners have discharged the onus upon them to establish that any of the first eleven respondents is not an Aboriginal person. In determining that issue the Court is to comply with the requirements of cl 23. I see no reason, however, why those requirements should relieve the petitioners from the usual requirement in adversarial proceedings that the person seeking relief from the Court must establish the case for relief in accordance with the ordinary standard of proof required of a party who bears the onus in civil litigation in Australia, that is, proof on the balance of probabilities. In some cases involving serious allegations, such as criminal conduct, fraud or moral wrongdoing, the judicial approach has been that a Court "should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct": see Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171 and G v H (1994) 181 CLR 387 at 399. The petitioners and the defending respondents submitted respectively that that approach ("the Briginshaw standard") should be adopted in respect of the case put by the opposing party. In Sodeman v The King (1936) 55 CLR 192 at 216 Dixon J said: "At common law, as distinguished from ecclesiastical law, no third standard of persuasion appears to have been known. But questions of fact vary greatly in nature and in some cases greater care in scrutinizing the evidence is proper than in others, and a greater clearness of proof may be properly looked for." Two years later in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 Dixon J, in a passage cited, inter alia, with approval in Neat Holdings at 171, and G v H at 399 observed: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ..." In G v H Deane, Dawson and Gaudron JJ at 399 said that: "if there is an issue of 'importance and gravity' ... due regard must be had to its important and grave nature." In substance, it was submitted on behalf of the defending respondents that the issues arising in the present case and the importance and gravity of the consequences flowing from a finding as to whether a person is or is not an Aboriginal person are such that it is appropriate to apply the Briginshaw standard to the issue of whether the petitioners have established that a particular respondent is not an Aboriginal person. In my view it is clear that the determination of the issues arising in the present case carry significant consequences for each of the individuals concerned. A finding that any of the relevant respondents is not an Aboriginal person, as that term is understood in current Australian parlance, can have a severe and deeply personal impact on the particular respondent's identity, family and communal relationships and entitlement to participate in programs for the benefit of Aboriginal persons. On the other hand the Act mandates, and there is a public interest in ensuring, that only "Aboriginal persons" as defined vote and stand as candidates at elections held under the Act. There is force in the argument that because: · the structure of the Act is such that any substantive determination of eligibility for a voter or candidate as an Aboriginal person can be only determined in a petition under Sch 4; and · it is inherent in the nature of the issue to be determined that the critical facts are not within a petitioner's knowledge, the Court should not adopt a Briginshaw standard against a petitioner, thereby raising further difficulties in proving ineligibility under the Act. However, the passages cited above demonstrate that the Briginshaw standard is not applied in the abstract or in a manner divorced from the circumstances of the particular case: see G v H at 399. Whilst the standard is most usually applied in circumstances where the matter to be proved involves criminal conduct or fraud it may be applied where the importance and gravity of the consequences flowing from a particular finding are such that it is appropriate to apply it. By way of example the Briginshaw standard has been applied to judicial determinations as to whether it is in the best interests of physically and mentally disabled women to order sterilisation: see Re L and M; Director-General Department of Family Services and Aboriginal and Islander Affairs (1993) 17 Fam LR 357, 373 and 376; In Re Jane (1988) 12 Fam LR 662, at 686-7 per Nicholson CJ. In the present case the evidence is that the defending respondents have identified as Aboriginal persons prior to any question arising as to whether they might stand as candidates for the Regional Council election. They had developed family and community ties as Aboriginal persons and many had involvements with one or more Aboriginal organisations. There can be little doubt that a finding in the present case that any of these respondents is not an Aboriginal person will have a severe and deeply personal impact on that respondent's identity, family and communal relationships as well as his or her future entitlement to participate in programs and organisations for the benefit of Aboriginal persons. The present case is quite different to one in which a respondent to a petition might have suddenly announced or acquired an Aboriginal identity for the purpose of standing in an ATSIC election. A Briginshaw standard may not be appropriate in that category of case. It may also not be appropriate in cases where a finding that a particular person is not an Aboriginal person may not have severe or serious consequences. I have carefully considered these matters and arrived at the conclusion that in the present case the importance and gravity of the consequences flowing from a finding that any of the defending respondents is not an Aboriginal person is a consideration which, using the words of Dixon J in Briginshaw at 362 "must affect the answer to the question whether the issue has been proved" or, in Sodeman at 216, makes it proper to require "greater care in scrutinising the evidence". Clause 23 of Sch 4 requires that the Court be guided by the "substantial merits and good conscience of each case without regard to ... whether the evidence before it is in accordance with the law of evidence or not." Clause 23 enables a petitioner to seek to establish a respondent's ineligibility without that respondent having the protection of the law of evidence which is, essentially, built on principles of fairness. That affords an additional reason for exercising greater care in scrutinising "the evidence". In my view, given the serious consequences for the defending respondents of an adverse finding, in the present case, good conscience and principle require that the Court should not lightly make a finding on the balance of probabilities, that any of those respondents is not an Aboriginal person as defined in the Act. I will deal separately with the case put by the petitioners in respect of the respondent, Lesage, who did not appear and filed no evidence at the hearing. THE ABORIGINAL TASMANIANS Aboriginal identity for contemporary Aboriginal Australians has survived, developed and been maintained in spite of the history of destruction of Aboriginal family life, culture and traditional life through killings, disease and subsequently by racism and policies of assimilation. The history of Aboriginal people in Tasmania, where concerted attempts were made to remove all Aboriginal people from the island, has rendered questions of Aboriginal identity and descent particularly difficult. The petitioners' case challenges most of the relevant respondents' assertions as to their Aboriginal descent. The challenge directly raises a number of issues relating to the history of the survival of Tasmanian Aboriginal people since the time of European occupation. The history of the Aboriginal population in Tasmania has been recorded by Lyndall Ryan in The Aboriginal Tasmanians (2nd ed, 1996, Allen & Unwin), extracts of which were tendered in evidence by the petitioners. When Tasmania was occupied as a penal colony in 1803 the indigenous population was estimated at about 4,000-5,000 people. This population fell rapidly as Aboriginal people died or were killed and Aboriginal children kidnapped to be used for labour. During the 1820s the conflict between the indigenous community and the European population escalated and culminated in October 1830 with the institution by Governor George Arthur of a military operation known as the "Black Line". With the aim of isolating the island's indigenous population in two peninsulas in the south-east, over 2000 men swept Tasmania moving in a line from North to South, a strategy which resulted in only one or two Aboriginal males being captured. The isolation of Tasmania's indigenous community was achieved soon after through the efforts of a settler, George Augustus Robinson, who had for some time travelled amongst the Aboriginal community and gained sufficient trust to persuade groups of indigenous people to move to islands off the mainland in return for food, housing and protection. Robinson was authorised by the government, as "Protector of Aborigines", to implement this plan which resulted in about two hundred Aboriginal people being moved to Wybalenna on Flinders Island by 1835, after temporary settlements on Swan Island and Gun Carriage Island. The changed conditions at Wybalenna, as well as disease and the very low birth rate resulted in there being only forty-seven surviving members of the population by 1847 when it was decided to remove them to a reserve at Oyster Cove in the south of Tasmania. Aboriginal children were taken to the Orphan School in Hobart to promote their assimilation, including (by order of Governor Sorell in 1819) children who had been taken by European families, and many died while housed there. When Truganini died in 1876 there were no other survivors in the Oyster Cove settlement and it was assumed by the government that there were no surviving Aboriginal Tasmanians. However, in the islands of the Furneaux group in Bass Strait, there was a community of descendants of sealers and Aboriginal women, some of whom had been abducted from the Tasmanian mainland. In 1871 the government set aside land on Cape Barren Island and the Islander community had moved from various islands to settle there. Missionaries visited from Launceston and a missionary school was established in 1890. The government sought to regulate the Cape Barren community, which it labelled "half-caste", with the Cape Barren Island Reserve Act 1912. Because the extensive government regulation was not accompanied by adequate financial assistance, the health and living conditions on the island remained poor and the island's population gradually depleted over the years. In the 1960s there was pressure from the local Flinders Council and the Tasmanian government for the islanders to relocate to Launceston, but a small community has survived and is present today in more autonomous communities on Cape Barren Island and Flinders Island. THE PETITIONERS' CASE In seeking to establish that the relevant respondents were not members of the Aboriginal race of Australia the petitioners focussed principally on seeking to prove the absence of Aboriginal descent, and to a slightly lesser extent, to disprove any recognition of the respondents by the Aboriginal community. The petitioners also challenged the bona fides of the self-identification of several of the respondents. The petitioners' case as to descent was based on the traditionally accepted theory that due to death, disease, low fertility rates and the "round-up" of Aborigines by George Augustus Robinson, by the middle of the 19th century there were no longer any Aborigines on the Tasmanian mainland except the small community at Oyster Cove, members of which were clearly identified. Aside from one woman, Fanny Cochrane, who left when she married a European named Smith, members of their community had no offspring. The only other Aboriginal people were living in the sealing communities on the islands. As a result, in the 19th century, the petitioners contend, there were only two recognised Aboriginal women on mainland Tasmania who had offspring, Dolly Dalrymple and Fanny Cochrane (Smith). Therefore, in order to claim Aboriginal ancestry in Tasmania, it is necessary to trace ancestry to one of these two Aboriginal women, or to the Aboriginal women in the sealing communities of the Furneaux Islands. The petitioners relied on a large amount of archival material and research and historical material in support of their claims. The respondents who traced their ancestry to Aborigines from the mainland in the 19th century contested the petitioners' historical case on the basis that there was historical material which was quite inconsistent with it, and which suggested that there were other Aboriginal people who may have had offspring on the Tasmanian mainland in the 19th century. They also gave individual accounts of their ancestry which relied to varying extents on family oral histories as well as on archival records. In relation to the issue of communal identification, the petitioners submitted that because the Tasmanian Aboriginal Centre (TAC) is the longest standing Aboriginal organisation in Tasmania and has occupied such a central role in Tasmanian Aboriginal affairs, recognition of an individual as an Aboriginal person by TAC and those associated with it is an important element of the requisite communal identification. The petitioners also argued that there was a community of Aboriginal people in Tasmania who were descended from the Islanders or from Fanny Cochrane (Smith) and Dolly Dalrymple, and that this community of descendants was the clearly defined and exclusive community of Aboriginal people in Tasmania. The petitioners presented evidence from a number of individuals, who they described as prominent members of the Aboriginal community, as to whether they recognised specific respondents as being members of the community. A difficulty with the petitioners' "community" submissions is that they assume that there is only one Aboriginal community in Tasmania and on the evidence before me this assumption cannot be accepted. I accept that as a result of its central role in Tasmania in relation to Aboriginal affairs, if an individual is recognised by the TAC as being an Aboriginal person, then, subject to descent, they are likely to be an Aboriginal person. I am not satisfied, however, that if the TAC does not recognise an individual as Aboriginal the converse is true and that they are not an Aboriginal person. There is also a difficulty in placing too much weight on the opinions of individual persons, as to whether they recognise or do not recognise particular respondents as being Aboriginal. Opinions as to an individual's membership of the Aboriginal community will be based on highly subjective personal, social and political reasons and consequently vary from person to person. As a result of the complexity inherent in defining an Aboriginal community in Tasmania, throughout these reasons I have referred generally to community recognition, or to recognition by a section of a community, rather than to a defined community. The competing contentions raise difficult questions in determining issues of descent. Essentially, the Court is presented with competing hypotheses, both as to the broad historical background and in each individual case. In assessing the relative strength of these hypotheses it is helpful to have an understanding of the historical and archival material relied on by the parties. TASMANIAN HISTORICAL AND ARCHIVAL RECORDS Extensive evidence was given about the records relating to genealogy in Tasmania. In addition to the historical accounts of Tasmania of the 19th and 20th centuries from which information about the Aboriginal families of Tasmania can be drawn, an important source of information about genealogy in Tasmania is the archival records. Evidence was given by the Ms Robyn Eastley, Senior Archivist in the Archives Office of Tasmania which has, in the recent past, had an increasing number of requests from the public about research into Aboriginal descent and as a result has developed a body of information about the genealogy of Aboriginal families in Tasmania. One significant difficulty in researching Aboriginal genealogy from these sources is that the archival records usually did not include information as to whether an individual was Aboriginal. The absence of any reference in the records to the Aboriginality of an individual is therefore no indication that they were not an Aboriginal person. A significant source of information in relation to genealogies of Aboriginal families in Tasmania is the research carried out by B Mollison and C Everitt in the 1960s and 1970s (the "Mollison genealogies"). This study traced the descent of the known descendants of the Aboriginal people who were moved to Wybalenna on Flinders Island, and of the community of Aboriginal women and sealers from the Islands. The research supports the idea that the established Aboriginal community in Tasmania traces its ancestry to the islander communities or to one of two Aboriginal women who were returned last century from Flinders Island to the mainland of Tasmania. The two women, Dolly Dalrymple and Fanny Cochrane (Smith), are recorded as having children. The genealogies are important but are also recognised as containing some inaccuracies. Other important sources of information as to descent include the journals of George Augustus Robinson, edited by N J B Plomley in the work Friendly Mission: The Tasmanian Journals and Papers of George Augustus Robinson 1829-1834 (published in 1966) and Weep in Silence: A History of the Flinders Island Aboriginal Settlement; With the Flinders Island Journal of George Augustus Robinson (published in 1987). In view of Robinson's very keen scientific and missionary interest in the Aboriginal Tasmanians, the amount of time spent with them and his particular concern for the morality of Aboriginal women living with sealers and the children of these women, these journals constitute an important source of genealogical information for the 1820s to 1840s. Another useful historical source is the records of interviews with Tasmanians conducted by an English geologist Ernest Westlake in 1908-1910 contained in the Westlake Papers, also edited by N J B Plomley. Westlake was researching the ways tribal Aborigines had used flint tools and for this purpose interviewed the surviving first generation descendants of Islander tribal women, Fanny Cochrane (Smith)'s descendants in the Channel region and non-Aborigines who had known the Aboriginal families from the Wybalenna or Oyster Cove settlements. These interviews contain a number of references to family links and tribal origins of particular individuals. Several of the respondents trace their Aboriginal ancestry from people they suggest are descendants of a number of Aborigines in the Huon and Channel area in South-East Tasmania who married local European settlers and were either not noted in archival records or were not recognised in the records as being Aboriginal. The petitioners filed material in support of the proposition that the suggestion was historically implausible. Dr Pybus gave evidence of her opinion that there could have been no descendants of Aboriginal people in this area as "[t]he historical record shows that there was no Aboriginal presence in the Huon and Channel area after 1830". She states that the absence of Aboriginal people in the area was established by the fact that George Augustus Robinson, when rounding up the Aboriginal tribes to take them to his island settlement, having taken five Aborigines from Bruny Island found no Aborigines on the trip across country from Recherche Bay to Port Davey. The absence of Aborigines in the area was consistent with the large numbers of European sealers and whalers in the area, some of whom had made attacks on Aboriginal tribes. Ms A Reynolds, a historical researcher who gave evidence for the petitioners, agreed with this view on the basis that the Westlake Papers confirmed that there were no Aboriginal descendants outside the "known family" in the Channel area, being that of Fanny Cochrane (Smith) as they would have been located and interviewed by Westlake, or referred to by his interviewees, and according to her the only Aboriginal people referred to by Westlake's informants as living in the Channel were members of Fanny Cochrane (Smith)'s family or individuals from Oyster Cove. However, not all historical records are entirely consistent with this account and some records support the possibility that not all of the Aborigines in Tasmania were captured and removed to the islands by the 1830s. For example, R J Drysdale is an archivist relied upon by the petitioners as affirming the theory that all Aborigines had been removed to the Bass Strait Islands (with the exception of one identified family which was later captured) by the 1830s and that descent outside the "known families" (of descendants of Fanny Cochrane (Smith) and Dolly Dalrymple) was unknown. Yet Drysdale refers to the diary of George Gatenby and entries in it dating from 26 June 1843 which state that "Blacks" were working for Mr Clark, the Chief District Constable for Hamilton, and for a Mr Young. Another record, introduced into evidence by senior counsel for the respondent Mr Bone, was made by an early settler, Henry Judd, who described when travelling up the Huon River in 1853, seeing "between 20 and 30 men and women" who were the "few blacks that were left in the colony", and watching them dance around a fire. He also describes Aborigines coming to his family's home in the Huon area and their responses to his father's questions about their customs, and recounts various of their practices and customs, including an occasion when a settler who had a broken arm had it set in a bark cast by a local Aborigine. This account was found in a publication called "The Dark Lantern; or Hidden Side of Nature", by Henry Judd and reproduced in 1936 in a publication of the Huon Newspaper Company in Franklin called "Centenary of the Settlement of the Huon". The account was corroborated in an interview by Ernest Westlake with Henry Judd reproduced in "The Westlake Papers." Dr Pybus gave evidence that there was a possibility that the people seen by Judd may have come from Oyster Cove: "There is a track...that goes from Oyster Cove through to the Huon and...there certainly is some evidence that people, quite a bit of evidence actually, that people from Oyster Cove went hunting in the Huon, and in fact, a source of problems because they kept hunting dogs which used to annoy the settlers around Oyster Cove. So, it seems a little unlikely to me because of the dates...the people at Oyster Cove were fairly aged and infirm by 1857, but the possibility, I suppose, would be from within Fanny Cochrane's own family because she had a lot of children, and she did pass on Aboriginal kind of practices to them." Dr Pybus did acknowledge that Fanny Cochrane (Smith)'s children would have been "a bit young" at this time and the possibility that the explanation for the Aboriginal people being sighted around the Huon River in 1853 was that they were from Oyster Cove was made less plausible given that the number of people at Oyster Cove by 1855 was recorded as being only fourteen, whereas Judd's account mentioned between twenty and thirty people. Dr Pybus also observed that there were a number of "half-caste" women of part Aboriginal/European descent who stayed in Tasmania after the 1830s and worked in households, and it was possible that some may not have been recorded. She stated in evidence that: "By the 1820s it is clear that there is a number of girls, probably half-caste girls, who are working as servants, I suggest, possibly prostitutes, possibly kept mistresses - it's kind of hard to establish quite the nature of their relationship - living with white settler families. There are women, girls - and indeed, the list that was referred to that included Mary-Anne Brown, is a list that was drawn up by the colonial authorities because they were concerned for the moral welfare of these girls. There were a number of girls who were listed as being at the Orphans School, and we do not know what happened to these girls....We could speculate that they were probably subject to the same high levels of mortality that everybody in the community was, but we can't be sure about what happened to them." Dr Pybus noted that these women, given the rarity of Aboriginal people in Tasmania, were considered "exotic" and were considered by the scientific community as being of considerable interest ensuring that they would have been noticed, making it unlikely that they would have had children without them being recorded in some way. But Dr Pybus did acknowledge that "half-caste" Tasmanians in the cities were less likely to be recorded by the colonial authorities (and particularly G A Robinson, the "Protector of Aborigines") as they were of less significant intellectual interest to them than tribal aborigines. She noted particularly that the one aspect of the historical record in relation to known Aboriginal descendants that would be open to challenge (because it may have been inadequately documented) was "half-caste girls in the early half of the [nineteenth] century". The petitioners suggest that popular beliefs that there were Aboriginal people on mainland Tasmania after 1830 and that Aboriginal persons other than Fanny Cochrane Smith or Dolly Dalrymple had children and therefore Aboriginal descendants, were explicable by, among other factors, the presence in Tasmania from an early date of other non-indigenous people of colour, including convicts and settlers from the West Indies, India, Honduras, Bermuda and Mauritius. It was evident from much of the evidence of the respondents that oral histories and informal documentation were often not entirely consistent with the formal histories which had been widely accepted. Dr Pybus gave evidence that oral histories would certainly not be discounted by professional historians or historical researchers but that oral evidence will be more significant when it is a contemporaneous record rather than a retrospective, albeit first person, recollection, and that the historical value of such evidence may be limited if no corroboration exists. The conflicting accounts and hypotheses raised by the different historical records demonstrate that the general historical record, particularly when relied upon to discount descent in a particular case, is not complete or reliable in all instances. Consequently, the Court is to exercise caution in acting on any general historical record or account as evidence disproving a version of history or ancestry of a particular respondent based on oral history, particularly if it has some contemporaneous corroboration. In the present case the evidence raises competing hypotheses put forward by the petitioners and the respondents which are to be decided on the balance of probabilities. It is in the context of that historical backdrop that each of the individual respondents except Kerry Argent and Rosalie Medcraft have traced their ancestry to persons other than Dolly Dalrymple and Fanny Cochrane (Smith). I turn now to consider the cases of each of the individual respondents. THE RESPONDENTS