The Australian Law Reform Commission

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Denkin had to consider the meaning of ‘Aboriginal native’ for the purpose of s 127 of the Constitution (repealed in 1967):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]

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