The Real Issue - Aboriginality is still a mystery to most Australians (Part II)

Aboriginality has been an evolving space over the later half of the 20th century, with over 60 definitions used since Colonisation. These definitions were often European made, derived from ideals of racial and cultural inferiority, like Queensland’s Aboriginal Protection Act 1897, its definition of an Aboriginal reading:

4. Every person who is—

(a)An aboriginal inhabitant of Queensland; or

(b)A half-caste who, at the commencement of this Act, is living with an aboriginal as wife, husband, or child; or

(c)A half-caste who, otherwise than as wife, husband, or child, habitually lives or associates with aboriginals;

shall be deemed to be an aboriginal within the meaning of this Act.

Though, who was a “half-caste” under this legislation was also defined by European ideals of sexual inferiority and conquest:

"Half-caste"—Any person being the offspring of an aboriginal mother and other than an aboriginal father ; Provided that the term "half-caste," wherever it occurs in this Act elsewhere than in the next following section, shall, unless the context otherwise requires, be construed to exclude every half-caste who, under the provisions of the said section, is deemed to be an aboriginal.

It would be a long exercise to dive into the myriad of definitions which have existed, but just from Queensland’s Aboriginal Protection Act, one can see how far we have come since. In our previous part of this Article Series “The Real Issue - Aboriginality is still a mystery to most Australians”, the Commonwealth definition was covered, and how Australia has moved away from these racist/sexist ideals of defining Aboriginality to one that is owned by the people themselves - Descent, Identification, Recognition.

Since the Commonwealth’s introduction of the definition, the Tasmania Dam Case introduced its principles into law, which Mabo expanded upon and clarified in its ruling regarding Native Title, while Yorta-Yorta would lay the foundational elements of what would constitute an Aboriginal group, or an Aboriginal ‘Society’ - its law and custom.

Aboriginal Law and Custom

Law and Custom, and the practise and observance of such, is the foundation for Native Title. Every group of people on earth live by some form of law and custom, rules of society that express how they are to behave, how they are to treat others, what rights they have to community resources, and what obligations they have to the community. It is the rights to land and waters from traditional law and custom that are recognised by Native Title, if a traditional law enabled people to hunt X animal, then on the simplest level, that groups native title will recognise that traditional right to hunt X animal.

Native Title is simply recognition of rights and interests already held by Aboriginal people, the Courts have time and time again stated during determinations they are ‘not here to give something new, but to recognise what has always been.’

Aboriginality and Law/Custom

Just as the High Court has recognised that these traditional law and customs decide what rights and interests a group has, the Court has also recognised these law and customs also decide who is a member of the group. This brings us back to that third-limb of the definition - recognition. As you can see, from the Commonwealth test to Mabo, there has been a progression and refinement:

…is accepted as such by the community in which he or she lives

↓

…recognised by the elders or other persons enjoying traditional authority among those people

Love/Thoms and ‘non-alien non-citizens’

In 2020, a landmark High Court case was decided which held that Aboriginal Australians could not be classified as aliens under section 51 of the Australian Constitution. The decision in this case relied on the application of the test developed in Mabo:

(Love) Aboriginal Australians (understood according to the 3-part test in Mabo v Queensland (No 2)) are not within the reach of the "aliens" power conferred by s 51(xix) of the Constitution).

Love/Thoms was a landmark case that expanded on the rights and interests derived from traditional law and custom. Just as Mabo recognised landed rights and interests, Love/Thoms recognised that the possessors of those rights and interests had an inherent and unique connection to this country that excluded the possibility that Aboriginal Australians could be considered “Aliens”.

This decision also reinforced other important principles of Australian law, particularly that Parliament cannot, simply by giving its own definition of a Constitutional term (like ‘Alien’), expand a power under the Constitution to include persons who could not possibly answer the description of that term in the ordinary understanding of the word.

This principle is also relevant to a successful Voice amendment, the amendment does not define Aboriginal and Torres Strait Islanders, so it would clearly be the established Common Law precedents which provide that definition.

Join us in Part III where will explore the turbulent last years as the Tripartite Test was really put to the test:

What is recognition according to Mabo?

How has the Tripartite Test been applied in Court since Love/Thoms?

How does this all affect current politics?