Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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20 April 1998
Aborigines -- Aboriginal and Torres Strait Islander Commission Regional Council elections -- Candidates required to be an "Aboriginal person" -- Whether candidates unqualified -- Meaning of "Aboriginal person" -- Whether onus on a petitioner to establish candidates are not Aboriginal persons -- Consideration of role of Aboriginal descent, self-identification and communal recognition as an Aboriginal person -- Appropriate relief where certain candidates not qualified -- Meaning of "illegal practice" in conduct of election -- Circumstances in which Court should declare a candidate not to be duly elected.
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.
The petition to the Court, issued pursuant to cl. 2 of Sch. 4 of the Aboriginal and Torres Strait Islander Commission Act 1989 (the ATSIC Act), disputed the validity of the election and the declaration of the poll for the election. Declarations were sought by Ms Shaw and Ms James, the petitioners, that the first 11 respondents were not qualified and therefore not eligible to be elected or stand as candidates in the Hobart region ATSIC Regional Council elections.
The petitioners argued that the first 11 respondents were not "Aboriginal persons" for the purposes of the ATSIC Act, arguing that the eleven respondents were not descendants of Aboriginal persons.
Held:
1. Any substantive determination of the eligibility of a voter or candidate as an "Aboriginal person" can only be determined in a petition to the Federal Court, under cl. 2, Sch. 4, of the ATSIC Act.
2. Descent, self-identification and community recognition are the three criteria which make up the test for determining whether someone is an "Aboriginal person" for the purposes of the ATSIC Act. The weight to be placed on each prong of the three-pronged test for "Aboriginal person" will depend on the circumstances of the case.
(a) Community recognition, given the inadequacy of written records, will often be the best evidence of proof of descent, and may be based on physical, cultural, social or other attributes perceived in a particular community to exist in Aboriginal persons.
(b) The test to determine identification is a subjective one.
3. The object of the ATSIC Act and the ordinary meaning of "Aboriginal person" support the interpretation that an "Aboriginal person" is a person descended from the inhabitants of Australia prior to European settlement: see Gibbs v Capewell [1995] FCA 1048; (1995) 128 ALR 577.
4. The petitioner has the onus of establishing that the respondent is not an "Aboriginal person" for the purposes of the ATSIC Act, on the balance of probability, although if the determination will have "important and grave" consequences for the respondent, a higher standard -- the "Briginshaw standard" -- will apply.
5. The effect of ss. 101(a) and 102(1)(a) of the ATSIC Act are such that the Act does not prohibit a person who is not qualified from standing for election. However, it was held that a Regional Council election will not have been conducted in accordance with the provisions of the Act if an unqualified person stands for election or is elected in a Regional Council election.
6. The fact of unqualified candidates taking part in an election was held to be
an "illegal practice" under
cl. 12(3) of the ATSIC Act, and the Regional
Council Election Rules.
Merkel J:
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 13th to 20th 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 62 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, 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.
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] FCA 1048; (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" (Commonwealth v Tasmania; The Tasmanian Dam case [1983] HCA 21; (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] HCA 64; (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".
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.
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 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.
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.
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 11 respondents to establish that they were Aboriginal persons. Counsel for the first 11 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] HCA 75; (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 11 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 11 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] HCA 66; (1992) 67 ALJR 170 at 171 and
G v H
[1994] HCA 48; (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] HCA 75; (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] HCA 34; (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] FamCA 124; (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.
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 4000-5000 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 47 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.
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.
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 Ms Robyn Eastley, the 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 14, whereas Judd's account mentioned between 20 and 30 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.
Charles Wolf traces his Aboriginal descent to one of the Islander Aboriginal women, Pleenperrenner, also known as Mother Brown, who he claims is his great great grandmother. Pleenperrenner had been abducted from the Pinterrairer tribe in about 1810 and was taken to Hunter Island where she lived with James Brown, a sealer.
Mr Wolf's family tree was researched by Mr J Hutcheon, a researcher and genealogist, who had traced as his own ancestor the person also identified as Mr Wolf's great grandmother. Mr Wolf's ancestry was described as follows.
Mr Wolf's mother Dorothy Lynch, is the second child of Morris Coleman Lynch and Grace McKay. Morris Lynch was born in 1902, the 12th child of Louisa Potter and William Storer Lynch. Louisa Potter was born in 1858, the 10th child of Mary Ann Leach and Thomas Potter. Mary Ann Leach was the daughter of Pleenperrenner and James Brown, and was born in around 1815.
This family tree is not one of the genealogies of the "known families" set out in the Mollison genealogies. The point of departure between the two accounts is that the Mollison genealogies do not acknowledge the Mary Ann Leach identified in the family tree as being a daughter of Pleenperrenner. Mr Hutcheon argues, from his research, that Mary Ann Leach was the daughter of Pleenperrenner and James Brown but in around 1818 when her father died she was taken to Launceston where she lived with Nathaniel Lucas. Around 1827, she was adopted by a couple from Hobart, William Leach and Mary Burn, and raised as their child, known as Mary Ann Leach. Mary Ann married Thomas Potter in 1836.
The evidence relied upon by Mr Hutcheon in drawing this conclusion is principally a letter written by Mr Paul Potter, the grandson of Mary Ann and Thomas Potter, to Mrs Violet or Viola Bleathman, the maternal aunt of the respondent Mr Wolf. The letter was written in response to a query from Mrs Bleathman who was inquiring into her ancestry. Mr Potter, who was 83 at the time the letter was written, had the letter written on his behalf by a visiting nurse, Rosemary Hood. The letter recounted that Mr Potter's grandfather (Thomas Potter) was not an Aboriginal person but his grandmother Mary Ann Potter was the daughter of an Aboriginal woman and a sealer who drowned in Bass Strait. The letter stated:
... so far as Mr Potter remembers the mothers name was Fonsy.
Mary Ann was brought to Tasmania by a man named Lucas, she was reared by William Leach (also a seaman) and his wife as their own child, and they named her Mary Ann and educated her. Thomas and Mary had 10 children John William was Paul's grandfather his father was Thomas Potter who married Rachael Leach.
Mr Potter was born 2.8.1898 at Bicheno, he remembers his grandmother quite well, she died in 1910 when he was 12 years old, she was in her nineties, he says he remembers asking why her skin was brown and his white ...
The reference to the "mother's name" being "Fonsy" was described by Mr Hutcheon as "a phonetically similar name for Nancy", the name by which Pleenperrenner was also known. It was confirmed by the Tasmanian Branch of the Australian Nursing Federation that Rosemary Hood was a registered nurse in Tasmania. She had died in 1982, shortly after the letter had been written for Mr Potter.
Counsel for the petitioners suggested that this letter may not have been authentic in that Mr Potter created a family history from public sources, the details of which were available in the Mollison genealogies or in Plomley's Weep in Silence. It was suggested in the alternative that the letter was fabricated at a later date to support Mr Wolf's claim to Aboriginal descent. Counsel was not able to provide any grounds for this contention except that the letter "contains a lot more detail perhaps than one might expect from a family history" and that it was unusual, if the letter was genuine and had been provided to Mrs Bleathman in 1981, that her daughter had not used it when she made an application for recognition of Aboriginality to the TAC in 1985.
The extent and general accuracy of the personal detail in the letter tends to support it as a genuinely recorded piece of family oral history. There is no evidence to support the suggestion that Mr Potter, an elderly and incapacitated man, would have undertaken the fairly considerable research required to establish the factual background of the account of his history, in order to create a record of a family history, rather than simply recording what he knew from his family history. In my view, the letter should be accepted as logically probative evidence which supports Mr Wolf's account of his family history.
Other historical evidence which is consistent with his account included a reference in Plomley's Friendly Mission to a Mary Ann Brown living with Nathaniel Lucas in Launceston in 1827. Plomley refers (at 446) to a list, compiled in around 1827 and kept in the State archives, which recorded the names of "half-caste girls living with white families", and includes the following:
Mary Ann Brown, aged 9, living with Nathaniel Lucas (of indifferent character).
Evidence was also given that in the death notice of Mary Ann Potter, (Mr Wolf's great great grandmother) published in the Weekly Courier Illustrated in January 1910, she was described as "a native of Hobart". In the Illustrated Tasmanian Mail of 15 January 1910 she is described as "a native of Tasmania".
Dr Pybus did agree that a Mary Ann Brown was born to Pleenperrenner and James Brown. The Mollison genealogies recognise a Mary Ann born to Pleenperrenner. However, Dr Pybus and other witnesses and writers relied upon by the petitioners do not agree that she was adopted by William and Mary Leach. Ms Eastley gave evidence that she had found no evidence that William and Mary Leach had adopted any children, and from the evidence in the archives that Mary Leach was poor when she died, she considered it unlikely that she would have adopted any children. Ms Eastley was of the opinion that the Mary Ann Brown born to Pleenperrenner was a different person who is later recorded in the archives as a "half-caste" who married William Proctor in Hobart in 1832 and subsequently returned to live on Gun Carriage Island. Dr Pybus was also of this view and noted certain references in the archives to William Proctor and his "half-caste" wife and the record in Robinson's diaries of Proctor living on Gun Carriage Island with his half-caste wife -- described as a "daughter of Mother Brown" -- in 1837. She also referred to a record of marriage of William Proctor and Mary Anne Brown, in 1832, which was witnessed by John Smith. John Smith was the name of Pleenperrenner's then (second) husband. Dr Pybus's view was that the most plausible inference was that this woman, and not the Mary Ann who had lived with the Leaches, was the daughter of Pleenperrenner.
Ms Eastley acknowledged that an error had been made in the archival research done in relation to Mary Ann Brown and the Wolf genealogy in interpreting the 1818 "muster" (a sort of census) as having recorded Mary and William Leach as having a child "Mary Ann". Because this muster was at a time when Mary Ann, daughter of Pleenperrener, was still recorded as living with Nathaniel Lucas in Launceston, this made Mr Hutcheon's account implausible and suggested that the Mary Ann living with the Leaches was their natural child. Ms Eastley noted that the muster does not name the child as being "Mary Ann" and that in fact the child was probably a male. However, this correction did not, in Ms Eastley's view, undermine the conclusions which she had reached.
As noted above, Dr Pybus did acknowledge that there was still a question as to what happened to a small number of "half-caste" girls in the early to mid-1800s who were living with or working for white families or were listed as being at the Orphan School in Hobart and who thereafter are unrecorded. There was a possibility, although not, according to Dr Pybus, a highly plausible one, that these girls had had undocumented children who themselves had Aboriginal descendants.
Mr Hutcheon offers various alternative explanations as to whom this other "Mary Ann Brown" may have been and who her parents were, to support his view that Pleenperrenner's daughter Mary Ann Brown was the child raised by William and Mary Leach. He refers to another sealer named John Brown who also drowned and was also documented in the Mollison genealogies and suggests that he may have been the father of this other Mary Ann Brown. Dr Pybus described these explanations as implausible given the thorough historical records relating to the Islander community and particularly the children of Aboriginal women. The suggestion that there may have been other sealers named John or James Brown who escaped record was described by Dr Pybus as "belong[ing] to the realm of speculation where anything is possible and nothing is proven."
Ms Eastley also noted that the use of the description "native of Hobart/Tasmania" in the two newspaper entries relating to Mary Ann Potter's death, could simply mean that she was of European descent but born in Tasmania. She said that in her experience, it had been rarely used to denote Aboriginality.
I have set out the evidence relating to Mr Wolf's descent in some detail as it demonstrates the difficulties confronting the Court which, at the end of the 20th century, is endeavouring to determine lines of descent back to the early 19th century by reference to competing historical hypotheses thrown up by the evidence of the parties. For the Court, evaluating the hypotheses spread over 150 years after the occurrence of the facts on which they are based, is a formidable task. However, as pointed out above, the burden of proof lies with the petitioners, and I will not lightly make a finding that the petitioners' hypothesis that Mr Wolf is not an Aboriginal person is to be preferred. In Mr Wolf's case, neither of the two hypotheses in relation to his ancestry is clearly established. But for Mr Potter's letter, to the extent that the question of descent is to be determined on the basis of historical records, I would have accepted the hypothesis put forward by the petitioners' witnesses, that is, Dr Pybus and Ms Eastley. Their evidence is both plausible and supported by archival records. However the inconsistency between that evidence and Mr Potter's letter, which I have also accepted as authentic, leaves me with two competing hypotheses -- neither of which am I persuaded to reject. It is in that context that I turn to consider the issue of identification and whether it can assist on the issue of descent.
Mr Wolf gave evidence of becoming aware of his identity as an Aboriginal person when his parents fostered two young Aboriginal girls. He recounted an incident where the girls had been taunted at school because they were Aboriginal and that his mother had reassured them by "telling them we were Aboriginal too and that we were as good as anyone else." He said that with his brothers he had grown up "with more than 20 children known as Aboriginal, and we played together, went to school together, and frequently slept over at each others homes." He referred to the fact that his grandfather Morris Lynch had taught him muttonbirding and how to dive for abalone and prepare them for eating. The process by which self-identification came about offers some support for Mr Wolf's hypothesis in relation to his descent in that it is consistent with his family history.
Later in life while he was working on building sites in Western Australia he said he identified himself as Aboriginal by wearing an Aboriginal flag on his work jackets. When he returned to Tasmania in the 1990s, he joined the TAC and later constructed a smokehouse at which, on one occasion, he smoked mutton birds for the TAC. He was a member of several Aboriginal associations, including the South East Tasmanian Aboriginal Corporation for which he acted as a field officer with responsibility for running cultural camps for Aboriginal children and adults.
Although the petitioners contended that Mr Wolf's identification as an Aboriginal person was "opportunistic" and "self-serving", the factual evidence given by Mr Wolf was not seriously challenged by the petitioners. Such evidence as was adduced by the petitioners does not establish that Mr Wolf's identification was not genuine.
Having carefully considered the evidence, I am satisfied on the balance of probabilities that Mr Wolf's self-identification as an Aboriginal person is genuine.
Mr Wolf stated that he had grown up with families and friends who were Aboriginal. He had been employed as a field officer by the South East Tasmanian Aboriginal Corporation, was a member of the Sports Aboriginal Corporation of Tasmania, secretary of the Indigenous Tasmanian Aboriginal Corporation and administrator of the Tasmanian Native Resources Corporation. Mr Wolf was referred to in an affidavit sworn by Mr Roy Maynard, an Aboriginal person, as having participated in Aboriginal organisations and communities, and as having been accepted by others as being Aboriginal. Mr Wolf received the highest number of votes in the election to which the petition relates. I am satisfied that Mr Wolf does enjoy significant community recognition as an Aboriginal person.
The petitioners produced material that indicated that some of the Aboriginal
persons with whom Mr Wolf said
he associated as a child had not been aware
of his Aboriginality. In my view that material merely leads to the conclusion
that Mr
Wolf lacks, or at that time lacked, community recognition in some
sections of an Aboriginal community
in Tasmania.
In the final analysis I am not persuaded that the petitioners have established that Mr Wolf is not of Aboriginal descent. Whilst there is some doubt as to Mr Wolf's line of descent, the support for Mr Wolf's hypothesis from his process of self- recognition and my decision to apply the Briginshaw principle to a finding that any of the defending respondents is not an Aboriginal person for the purposes of the Act have led me to conclude that I should not prefer the petitioners' evidence over Mr Wolf's evidence as to descent. I am satisfied that Mr Wolf's self-recognition is genuine and that he enjoys significant community recognition. Accordingly, the petitioners have not discharged their onus of establishing Mr Wolf is not an Aboriginal person for the purposes of the Act.
...
Ms Oakford gave evidence that she had been aware of her family's Aboriginal ancestry since she was young but that it was not until recently that her family tree had been researched. Ms Oakford traces her Aboriginal ancestry through her father's family back to Wottecowidyer, a daughter of the Aboriginal chief Mannalargenna; she also traces her mother's family back to Teekoolterme, another daughter of Mannalargenna.
Ms Oakford described the family tree of her father as follows. Her father Robert Thomas (Tom) Bradley was the son of Olive Emily Palmer. Olive Palmer's mother was Ruby Therese Pritchard who was the daughter of Grace Brown born in 1864. According to Ms Oakford, Grace Brown's father was Thomas Thompson Brown, born between 1822 and 1825, who was the son of Wottecowidyer (also known as Harriet) and the sealer James Thompson.
The historical material relevant to Ms Oakford's family tree and particularly her father's ancestry indicated that there were various possibilities as to the identity of the people referred to in Ms Oakford's account. Her material was problematic as it was not clear how it supported her account. Before considering the evidence of the parties it is helpful to identify the central issues raised by the material. One central issue was whether the "Thomas Thompson Brown" who is described in Ms Oakford's account of her family tree was the son of the Aboriginal woman Wottecowidyer, and if (contrary to Ms Oakford's understanding) he was not, what his ancestry in fact was. Another issue related to the identity of the Grace Brown (Ms Oakford's great great grandmother) who Ms Oakford said was the daughter of Thomas Thompson Brown and Elizabeth Williams. In addition to the doubt over whether Thomas Thompson Brown was the son of Wottecowidyer, there is considerable doubt over whether Grace Brown, who is undisputedly Ms Oakford's ancestor, is the same Grace Brown who was born to a Thomas Thompson Brown and Elizabeth Williams as contended by Ms Oakford. These difficulties presented a number of hurdles for Ms Oakford's hypothesis as to her father's ancestry.
Ms Oakford filed material relating to the historical references to Thomas
Thompson Brown, principally extracts from N J B Plomley's
Weep in Silence
and Friendly Mission compiled by her uncle and historical records
relating to other aspects of her family tree. It was unclear how the extracts
filed
by Ms Oakford support her version of her family tree as they appear to
establish that Thomas Thompson, son of Wottecowidyer, left
Tasmania for Port
Phillip in 1839. They do not refer to any record of him ever returning, and
certainly contain no references which
link him to Grace Brown who
Ms
Oakford described as his daughter. There are notes made by Ms Oakford's uncle
who compiled the extracts relating to Thomas Thompson
that note that not all of
the Aboriginal people who went to Port Phillip with George Augustus Robinson
returned, and that those who
did not included "Thomas Thompson -- fate unknown,
perhaps remained in service of a settler.". These references do not support the
proposition in Ms Oakford's family tree that Grace Brown was the son of Thomas
Thompson.
Ms Oakford said in cross-examination, when queried as to the origin of the surname "Brown" in the name of the person she identified as her ancestor (Thomas Thompson Brown), given that Wottecowidyer's husband was simply James Thompson:
Mary Anne Brown and her husband reared Harriet's children. ... And they made application to the Queen's Orphan School via the Colonial Secretary for those children both to be admitted.
She was then asked whether the Thomas Thompson who was taken to Port Phillip was "the Thomas Thompson Brown who married Elizabeth Williams". Ms Oakford stated that this was not the person, and that the Thomas Thompson she was relying on as her ancestor was the Thomas Thompson who was described in the notes attached to her affidavit as being in the Queen's Orphanage between 1828-36. Annexed to Ms Oakford's affidavit is a copy of an extract from the register of the Queen's Orphanage. One of the entries states:
Thomas Thompson [age] 4 [admitted] 9 May 1836. Parents unknown. Halfcaste. [discharged] 26 Aug 1847. Removed to Flinders Island.
The entries do not appear to have been made contemporaneously with the actual admission and discharge of children, but is a record compiled at a later time. Dr Pybus made a written statement expressing her belief that the halfcaste boy named Thomas Thompson, and admitted on 9 May 1836, is Wottecowidyer's son, who was admitted by George Augustus Robinson with another child of Wottecowidyer, with the intention of leaving them there until they could be taken to Flinders Island. Dr Pybus said that it was her belief, on cross-checking with other information, that the discharge date in the Orphan School records was wrong and would have been considerably earlier than 1847, as Thomas Thompson would only have been briefly waiting for a boat to go to Flinders Island. The view that the records are wrong is supported by the fact that by May 1847 (earlier than the August 1847 discharge date) the Wybalenna Settlement on Flinders Island had been closed and the occupants resettled at Oyster Cove. It was therefore most unlikely that the child would have been "removed to Flinders Island" at that time.
As the historical material appears to establish clearly that the Thomas Thompson who was the son of Wottecowidyer, was taken to Port Phillip and there was no record of him having returned, it is difficult to accept that the hypothesis contained in Ms Oakford's original version of her family tree is supported by the historical records.
The petitioners did not dispute that a Grace Brown was born to a Thomas Thompson Brown and Elizabeth Williams; nor did they dispute Ms Oakford's account of her ancestry to Ruby Therese Pritchard. However the petitioners contended that the Thomas Thompson Brown referred to by Ms Oakford was not the son of Wottecowidyer nor the father of Grace Brown. They contend that the son of Wottecowidyer was a different person, Thomas Thompson, who historical records indicate went to Port Phillip on the mainland and was not recorded as returning.
In relation to Ms Oakford's evidence as to her family tree, Ms Eastley gave evidence that the Thomas Thompson Brown who married Elizabeth Williams and had a daughter Grace was:
a 31 year old Master Mariner when he married Elizabeth Williams aged 17 in the Residence of Mr Hedberg Argyle Street according to the Rites of the Congregational Church.
This couple had 2 children registered in Hobart --
Thomas Thompson Brown born 14 Jan 1862
Grace Brown born 14 May 1864. (References to archive document codes omitted)
Ms Eastley then referred to the historical records relating to the son of
Wottecowidyer. In Weep in Silence, by
N J B Plomley, the son of
Harriet (Wottecowidyer) is described as "Thomas Thomson (halfcaste) ... Age 11
in 1837. Notes. With Robinson
at Port Phillip ...". Ms Eastley refers to other
extracts from Weep in Silence which record that this Thomas Thomson went
to Port Phillip with George Augustus Robinson, without record of his return:
July 1842. Discussing the return of aborigines from Port Phillip. "Thomas Thomson (halfcaste) may have remained in Victoria."
P138 Oct 1842. Discussing the return of a second group of aborigines from Port Phillip. "They may not have been the last to return, because Jeanneret also reported that one of the women at Wybalenna, Harriet alias Watty, very much wanted her son, the halfcaste Thomas Thomson, who was said to have absconded from Robinson at Port Phillip to come back."
The historical reports of Thomas Thompson having gone to Victoria with George Augustus Robertson and not having returned, which accord with Plomley's Weep in Silence, are also found in Lyndall Ryan's The Aboriginal Tasmanians at 193 and in note 2 to Appendix 3. Dr Pybus also gave evidence that Wottecowidyer's son Thomas Thompson:
... disappears from the historical record in Victoria between 1840 and 1842. ... It is most likely that he died in Victoria, and this was not recorded by Robinson or the colonial authorities as he was only "halfcaste".
Ms Eastley said:
I have been unable to find any evidence that would suggest that the mariner described in point 1 [ie Thomas Thompson Brown] is the same person described in point 2 [ie Thomas Thomson].
Ms Eastley's evidence also indicated that another aspect of Ms Oakford's version of her family tree may not be consistent with the historical records. In her affidavit evidence Ms Eastley said:
... I am convinced that Grace Brown the daughter of Thomas T. Brown is not the person who married John Pritchard. The significant documents are:
The will of Thomas Brown which identifies a daughter called Grace Brown and includes her brothers and sisters.
The family's association with the Catholic Church both for marriages and baptisms of their children. You will note that the other Brown family married in the Congregational faith and the witnesses, some of whom are probably family members are also associated with the Protestant faith. You will also note that Brown(e) family members were sponsors at the baptisms of some of the Pritchard children.
According to Ms Sculthorpe, various documents including archival records, which were exhibited to her affidavit supported, the existence of a different family tree for Ms Oakford which traced her ancestry to a different Grace Brown than the woman identified as Grace Brown by Ms Oakford. This Grace Brown was the daughter of a Thomas Brown and Hannah Doodie, born in England and Ireland respectively. The material also included historical records relating to various Thomas Browns who were living at the time that Thomas Thompson (Brown) was, according to Ms Oakford's family tree, alive. This material does indicate that there were a number of other Thomas Browns who could have been the father of Grace Brown and were more likely than Thomas Thompson (the son of Wottecowidyer) to have been Grace Brown's father. Accordingly, the petitioner's evidence raises a persuasive case against the family tree put forward by Ms Oakford.
In my view Ms Oakford's material is inadequate to support her assertion that she is descended from Thomas Thompson, the son of Wottecowidyer. Her material does not support the suggestion that that Thomas Thompson had a daughter Grace Brown. She has also produced no material to support the other aspects of the family tree in respect of which the petitioners' material raises significant doubt. In these circumstances I am satisfied that the Petitioners have established that it is improbable that Thomas Thompson, the son of Wottecowidyer, had a daughter Grace Brown who was Ms Oakford's ancestor. There is also some doubt whether the Grace Brown Ms Oakford identifies as her ancestor was the daughter of Thomas Thompson Brown and Elizabeth Williams.
As a result I am satisfied, applying the Briginshaw principle, that on the balance of probabilities the petitioners have established that Ms Oakford has no Aboriginal ancestry deriving from her father's ancestors.
Ms Oakford stated in her evidence at trial that:
I have got more history and knowledge of my Aboriginality through my mother's side.
Ms Oakford describes her family tree on her mother's side as follows. Ms Oakford's mother, Claire Francis Olbrich, was the daughter of Frederick William Olbrich. His mother was Alice May Thomas born 23 December 1876. Alice's parents were James William Thomas and Margaret Webber. James William Thomas, born in June 1843, was the son of Teekoolterme, (daughter of Mannalargenna) and John Thomas (Long Tom).
Material filed to support this version of Ms Oakford's ancestry included a family tree obtained from her uncle, Kerry Charles Bradley, a record of baptisms in the Wesleyan Church in Hobart in 1850 which lists James William Thomas, son of John Thomas and Ann Thomas, being baptised on 23 April 1850 and as having a birth date of June 1843; and an extract from a publication Living with the Land which sets out the family tree of Mannalargenna and refers to Teekoolterme being married to John Thomas and having a son James in 1843.
The petitioners do not dispute that Teekoolterme had a son James Thomas in 1843, and that the baptismal record produced by Ms Oakford refers to him. However, they did dispute that that James William Thomas was the person, John Thomas, who is recorded in Ms Oakford's family tree as having married Margaret Webber (or Weber) and being the father of Alice Thomas.
Ms Eastley gave evidence that:
Although the ages of James William Thomas and John Thomas happen to roughly coincide, nothing else suggests that they are the same person. John Thomas and Margaret Weber are married according to the rites of the Anglican Church in St. David's Cathedral. ... In all subsequent birth records of the children of the couple, including the birth of Alice, John Thomas continues to describe himself as "John" and not "James William". ... Additionally none of the male children bear the name James William. It was very common in the 19th century for christian names to be repeated over the generations. His death certificate in 1879 also shows him to be John Thomas.
Annexed to Ms Eastley's affidavit was a copy of the page of the register of St David's Cathedral which show the entry relating to the marriage of John Thomas and Margaret Weber. Also annexed was a printout of the computerised record of the birth records of the four children of John Thomas and Margaret Webber, each showing the name "John Thomas" as father; and the "Record of death" in 1919 of "John Thomas", born 1844, of Cygnet.
Ms Eastley also conducted some research into the identity of this John Thomas's parents on the assumption that he was not the James William who was born to Teekoolterme and John Thomas. She concluded that it was likely that John Thomas was the son of Grace and John Thomas, who were free immigrants who arrived on the ship the "Sir Charles Napier" in 1842. Ms Eastley annexed a contemporary record of the immigrants who arrived on the Sir Charles Napier which includes Grace and John Thomas and their four children Emma, Richard, Grace and Ann. Ms Eastley could not find any birth record for John Thomas but speculates that he was born shortly after their arrival (consistently with the birth date of 1844 recorded in the death certificate referred to above) and may have been baptised "at one of the local churches whose records are not indexed".
The factors that led Ms Eastley to identify this couple as the parents of John Thomas were:
* "the continuity of various christian names between these Thomas's and the family of the John Thomas who married Margaret Weber." The records of the children of John Thomas and Margaret Weber, referred to above, which were annexed to Ms Eastley's affidavit, do not include the given names of the two male children but do show that their third born child was named "Ann Grace". John and Grace Thomas had four children (who were siblings of John Thomas according to Ms Eastley's hypothesis) with them when they arrived in Tasmania, including Ann, aged 15 when they arrived. Annexed to Ms Eastley's affidavits are records of the children of Ann Wheatley, nee Ann Thomas. The names of these children include "Grace" born in 1850 and "John" born in 1855.
* Ann Weatley [sic] is recorded as having registered the birth of Christine Jane, the daughter of John Thomas and Margaret Thomas, "formerly Webber", in 1875. The page of the register of births, a copy of which is annexed to Ms Eastley's affidavit, states, under the column "Signature, Description and Residence of Informant" states: "Ann Weatley [sic]. Aunt. Lymington". This record, which indicates that Ann Wheatley is John Thomas's sister, in combination with the records referred to above which indicate that Ann Wheatley was the daughter of John and Grace Thomas, suggest that Ms Eastley's hypothesis that John Thomas was the son of the John and Grace Thomas who were free immigrants, is likely to be correct.
Ms Oakford has produced no material which contradicts this version of the ancestry of John Thomas. The material adduced on behalf of the petitioners casts very strong doubt over the validity of the hypothesis in Ms Oakford's version of her family tree that the John Thomas she names as her ancestor is the son of Teekoolterme. That material also offers a persuasive and plausible explanation of who the parents of that man were, and that they are non-indigenous immigrants. Having carefully considered all of the material and applying the Briginshaw principle, I am satisfied that the petitioners have also established on the balance of probabilities that Ms Oakford does not have Aboriginal descent deriving from her mother.
Although I accept that Ms Oakford may genuinely believe that she has an Aboriginal ancestor, the petitioners have established for the purposes of the present case to the necessary standard of proof that she does not have Aboriginal descent.
Ms Oakford gave evidence that she was very young when her mother spoke of her Aboriginal ancestry. She explained that:
This was because my father was referred to by locals as "Black Tom" or "Abo Tom" and later was referred to as an Aboriginal elder at his work place on the wharf.
She also explained that when her mother was growing up she spent time with her aunties Marj and Grace Olbrich who were long time residents in the Cygnet area. She said that these ladies recounted to her mother her Aboriginal ancestry and told stories of how their grandmother Margaret Thomas and Fanny Cochrane Smith were great friends.
She also said in her affidavit:
I have identified as an Aboriginal person ever since I was old enough to decide that I wanted to do so, and have, over the years, been recognised as an Aboriginal by a number of Aboriginal persons, corporations and communities.
In her evidence given at trial, Ms Oakford said, when asked in cross-examination: "Is it a situation where you made a decision at one point in time to identify as an Aboriginal person?":
No. It wasn't a decision. I knew I was an Aboriginal person, and then at school I told a couple of my friends that I was an Aboriginal person, and that was a decision I made because I knew those friends would treat me correctly. If I openly got up in an assembly and said, "I'm an Aboriginal person," I feared that I would get rubbished.
She recalled that she would have told these friends that she was an Aboriginal person when she was about 10 or 12 years old and that she did so because she "was proud of the fact".
I accept that Ms Oakford may genuinely identify as an Aboriginal person. Although her oral history offers some evidence in support of her hypothesis as to Aboriginal descent, I am not satisfied it is sufficient to overcome the case presented by the petitioners on that issue.
In relation to recognition of her aboriginality by the Aboriginal community, Ms Oakford gave evidence that:
During the 1980's I was busy raising a family but as soon as time allowed I commenced voluntary work with South East Tasmania Aboriginal Corporation (SETAC). Later I became a paid employee of that corporation. I subsequently left there and became the administrator of the Sports Aboriginal Corporation of Tasmania (SACT). I am currently a member of SETAC, SACT, the Indigenous Tasmanian Aboriginal Corporation (ITAC) and the Tasmanian Aboriginal Land Council (TALC). In addition I am a representative on the National Indigenous Sports Organization Council (NISOC) and was recently elected as a Regional Councillor for the
first time.
In her evidence at trial, Ms Oakford said that there were individual people who recognised her as an Aboriginal person and that "the community of Cygnet know that I'm an Aboriginal person". I have no reason to reject Ms Oakford's evidence that she has enjoyed some community recognition.
In view of my finding that the petitioners have established on the balance of probabilities that Ms Oakford does not have Aboriginal descent, it must follow that she is not an Aboriginal person for the purposes of the Act.
...
No material was filed on behalf of Mr Lesage, nor did he give evidence at the hearing of these proceedings. On behalf of the petitioners Ms Sculthorpe gave evidence that she believed this respondent to be connected with the Tasmanians of Aboriginal Descent Association in recent years. She also believed him to be "the person named Lance Sage who used to write to our organisation [TAC] from Risdon Prison sometime in the 1970s." Ms Sculthorpe stated that:
The TAC has records of Aboriginality applications from Lance Sage and Helen Lesage ... The application of Lance Sage of Kingston dated 3rd January 1989 states that he has been away for 12 years and that his poetry used to be printed in newsletters. This accords with my recollection that Lance Sage used to write poems from Risdon Prison for the then State Secretary of the TAC, Rosalind Langford, to include in the TAC newsletter. In 1989 the application of Lance Sage stated his Aboriginal family background to be through his mother Zoe Fazackerly to the Clarks and claimed Ted Stevenson, referred to above as a descendant of Janet Nichols and Alfred Clark, as a "cousin through the Clark's". The TAC has records of the Fazackerly family ... supplied by a member of that family and which state that Aboriginal ancestry is through the marriage of Tatnells into the Nichols family. As referred to above, the historical record shows that the Tatnells were not Aboriginal. The TAC does not have birth, marriage or death dates against which the ancestry claims of Lance Sage can be further checked.
Annexed to Ms Sculthorpe's affidavit is a form headed "ABORIGINALITY CONFIRMED YES/NO". Against a space left for a name is "Lance Sage" and various other information has been completed. The content of the form is, relevantly, as Ms Sculthorpe described above, namely that under the heading "Aboriginal Family Background", there is the statement "Mother. Zoe Lowther Fazackerley (Aboriginal)". Under the heading "Is the applicant Aboriginal?" appears the statement "Yes I am Aboriginal".
Also annexed to Ms Sculthorpe's affidavit is material relating to a "Helene LeSage", including a letter written to the Tasmanian Aboriginal Centre asking for recognition by the organisation, with a document attached showing a partial family tree linking her to a different Aboriginal relative. In her affidavit Ms Sculthorpe notes that in the list of postal vote applications for the Regional Council elections Helene LeSage is listed as living at the same address as Lance Lesage. Ms Sculthorpe stated "I do not know if they are a married couple or are siblings". According to the family tree accompanying Helene LeSage's letter it is evident that she is not a sibling of Lance Lesage; she describes herself of Helene LeSage (nee) Tuttle, and in listing her siblings does not include a "Lance". Accordingly, the other material relating to Helene LeSage's ancestry would appear to have no bearing on the question of the respondent Lesage's descent.
The records of the Fazackerly family referred to by Ms Sculthorpe are handwritten and handtyped records, the origin of which is not apparent. One is headed "The Fazackerleys of S.E. Tas." and lists the birth dates and marriages of various family members, but does not refer to Lance Lesage or to Zoe Fazackerly. It has a reference to a Joseph Fazackerly who married Charlotte Tatnell, but does not contain any reference which links them to a Zoe Fazackerly. The other document is headed "Fazackerly" and refers to a "Charles Fazackerly [who] was the son of Joseph Fazackerly and his first wife was Charlotte Matilda Tatnell." There is no reference to a "Zoe Fazackerly", nor to Lance Lesage, nor anything that appears to link that couple with Mr Lesage.
In the absence of any material filed by Mr Lesage to set out his family tree, or to explain his understanding of his Aboriginal descent, there is nothing to counter the petitioners' assertion that Mr Lesage is not of Aboriginal descent. In relation to other respondents who have traced their ancestry to a member of the Tatnell family (Mary Ann Tatnell, a sibling of the Charlotte referred to above) I have concluded that there is insufficient evidence before me to be satisfied that that ancestor is not Aboriginal. However, in this instance, there is not sufficient material before me which links Mr Lesage or his mother Zoe Fazackerly with the Tatnell family. Accordingly, there is no material to rebut the evidence filed by the petitioners which suggests that Mr Lesage is not of Aboriginal descent.
As Mr Lesage has given no evidence in these proceedings, there is no material before me as to the genuineness of Mr Lesage's self-identification as an Aboriginal person. It is arguable that the act of standing for election in the Regional Council elections is a means by which Mr Lesage has chosen to identify himself as an Aboriginal person. His apparent association with the Tasmanian Aboriginal Descendants Association could also be taken to indicate that he had chosen to identify as an Aboriginal person, or at least as an alleged descendant. However, absent some evidence additional to that which is before me, I am not prepared to infer that these acts of identification are evidence of a genuine self-identification. I am also satisfied that there is insufficient evidence of communal identification.
In view of the deficient evidence of Aboriginal descent available in relation to Mr Lesage, absence of evidence of genuine self-identification and communal identification as an Aboriginal person, on the whole of the evidence, I am satisfied that the petitioners have discharged their onus of establishing that Mr Lesage is not an Aboriginal person for the purposes of the present case.
...
I have concluded that the petitioners have established that Mr Lesage and Ms Oakford are not Aboriginal persons for the purposes of the Act. Accordingly, it is necessary to consider the consequential relief (if any) which is to be granted. That issue requires careful consideration of the impact of each of the two unqualified candidates on the election.
ATSIC Regional Council elections are conducted under a quota-based proportional representation electoral system. Under that system a number of representatives are elected for a constituency. To be elected the candidates must reach a quota of votes, the quota being calculated by means of a formula linking the number of votes with the number of candidates to be elected. The elections are conducted using an optional preferential voting system. The optional voting system requires the voter to place the number 1 on the ballot paper in the box beside the name of the candidate most preferred by the voter, and then, if the voter wishes, the numbers 2, 3, 4 and so on in the boxes beside the names of some or all of the remaining candidates on the ballot paper.
In the 1996 ATSIC Regional Council Election for the Hobart Region, which consisted of the Hobart Ward, 34 candidates stood for election to 12 positions on the Council. Nine hundred and fifty-two votes were accepted as formal votes and distributed to candidates according to the first preferences marked on the ballot paper. After a quota of 74 was determined, three candidates were declared as elected, these candidates having received a number of first preference votes equal to or greater than the quota of 74. Under a complex system involving the calculation of transfer values for distributing preferences, numerous counts were held with the person standing lowest in the poll after certain counts being excluded. At count 37, the candidate Baden Bone, who stood lowest in the poll at that stage with Lance Lesage (35 votes each including preferences) was excluded. At count 41 Lance Lesage was excluded. He had received 32 first preference votes and had picked up only three preference votes from other candidates. By count 51 a further two candidates had been declared elected. After count 51 there were seven continuing candidates and seven remaining unfilled vacancies. The seven continuing candidates were therefore elected. Of those candidates Debbie Oakford was declared elected with 66 votes. She had received 52 first preference votes and had picked up 14 preference votes from other candidates. Accordingly the election of 12 members for the Hobart Ward was completed after count 51.
Clause 12(3) of Sch. 4 to the Act provides as follows:
The Court shall not declare that any person returned was not duly elected, or declare any election void:
(a) on the ground of any illegal practice committed by any person other than the candidate and without his or her knowledge or authority; or
(b) on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption;
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.
"Illegal practice" is defined in cl. 1(1) of Sch. 4 as meaning "a contravention" of the Act or the relevant election rules which in the present case are the Regional Council Election Rules made under the Act. The Act and the Rules contain provisions, inter alia, regulating the conduct of elections. In general, it is not an offence to contravene the Act or the Rules. Whether a contravention has occurred will depend on the terms of the provision said to have been contravened. In my view "contravention" as used in cl. 1(1) is not to be given a narrow or technical meaning. It is to be given its natural meaning, that is, an act of infringing or transgressing: see The Macquarie Dictionary.
It is likely that the terms of cl. 12(3) are exhaustive as to the general grounds on which an election may be declared void or a person returned may be declared to have been not duly elected: see Hudson v Lee [1993] HCA 58; (1993) 177 CLR 627 at 631. However, the mere fact of candidates being ineligible does not of itself result in the election of the candidate being avoided: see cl. 12(3) and Re Wood [1988] HCA 22; (1988) 167 CLR 145 at 167-8 and Re Wood (No 2) [1988] HCA 71; (1988) 62 ALJR 377 at 380.
The ground relied upon to found the petitioners' claims in the present case is said to be the "illegal practice" of unqualified persons standing for election. Accordingly, the declaratory relief sought can only be granted if the provisions of cl. 12(3) are satisfied.
I have found that the petitioners have established that the respondents Ms Oakford and Mr Lesage were not Aboriginal persons, as defined by the Act, and therefore were persons who were not qualified to stand for election: see ss. 102(1)(a) and 101(a). Accordingly, the issues arising are whether an illegal practice has occurred and if so, whether the Court will grant declaratory or other relief in respect of the election.
The Act does not contain any express provision which prohibits a person who is not qualified to stand for election, standing for election. The effect of ss. 102(1)(a) and 101(a) is that unqualified persons are not to stand for election. Section 100 provides that Regional Council elections shall be conducted by the Australian Electoral Commission in accordance with provisions of the Act and the Regional Council Election Rules. Under the statutory scheme for Regional Council elections only persons who are Aboriginal persons or Torres Strait Islanders are entitled to stand for election and be elected under the Act. It is implicit, if not explicit, that a Regional Council election will not have been conducted in accordance with the provisions of the Act if an unqualified person stands for election or is elected in a Regional Council election: cf Pettit v Atkinson (1994) 50 FCR 174 at 179-80.
In these circumstances it would appear that the provisions of cl. 12(3) are attracted on the basis that the contravention (as defined above) has been committed, albeit unwittingly, by an election which is not in accordance with the Act being conducted. This result follows from the fact that the Act does not expressly provide that a candidate who is unqualified and stands for election or is elected, has committed a contravention of the Act. I would emphasise that the finding I have made does not in any way, directly or indirectly, amount to a criticism of the conduct of the election by the Australian Electoral Commission. It is not the Commissioner's function or role under the Act or the Rules to determine whether candidates, whose nominations satisfy the formal requirements of the Rules, are qualified to stand for election. The Commission was not required or authorised to investigate or inquire into whether candidates are "Aboriginal" persons for the purposes of the Act. Indeed the statutory provisions are structured so that such matters will, in a practical sense, only be raised after, rather than before or during, an election. It is quite clear that a finding that the Act has been contravened by a person does not require that there be any intent to commit a breach, nor is any question of moral turpitude involved: see Wasaga v Tahal [1991] FCA 666; (1991) 33 FCR 438 at 447-8 and Pettit v Atkinson (1994) 50 FCR 174 at 179-80.
There is an additional basis for finding that an illegal practice has occurred. Rule 8 of the Regional Council Election Rules provides:
8. (1) No person is capable of being elected as a member of a Regional Council unless duly nominated.
(2) To entitle a person to be nominated as a member of a Regional Council, he or she must have the qualifications specified in section 102 of the Act.
The formal requirements for a valid nomination set out in r. 13 provide, inter alia, that a nomination is not valid unless the person nominated declares that he or she is qualified to stand for election under s. 102 of the Act. As the nominations in question in the present case contained the requisite declaration, albeit that the nominee was not qualified, they did comply with the formal requirements of the Rules. However, in my view it is an implicit, if not explicit, requirement of r. 8 that only a person qualified to stand for election is capable of being elected as a member of a Regional Council. Accordingly, if a person who is not capable of being elected as a member of a Regional Council is elected as a member of the Regional Council, the election will not have been conducted in accordance with the Regional Council Election Rules.
It follows from the foregoing that the conduct of the Regional Council election resulted in a contravention of the Act by a person other than a candidate. There may be an alternative path to the same point if it is a contravention of s. 102(1)(a) for an unqualified candidate to stand for election: see Pettit at 179-80 and Wasaga at 447. However, such a contravention is by the candidate with the consequence that cl. 12(3)(b) rather than cl. 12(3)(a) of Sch. 4 of the Act is applicable, but with the same result.
I am not satisfied that the conduct giving rise to the illegal practice in question in the present case was committed intentionally by the two candidates. Accordingly, the contravention was not with the knowledge or authority of either of the two candidates. Consequently the requirement in subcl. 3(a) has been satisfied. In any event I am satisfied that the requirement in subcl. 3(b) is also satisfied. However, the Court has no power or jurisdiction to declare that a person returned was not duly elected or to declare any election void, unless it is satisfied as to the matters set out in cl. 12(3), being:
* that the result of the election was likely to be affected; and
* that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.
In Pettit Gray J considered the operation of cl. 12(3) in respect of an ATSIC Regional Council election. His Honour was satisfied in that case that at least by reason of cl. 12(3)(b), the Court could not declare that the respondent was not duly elected unless it was satisfied as to the two pre-conditions set out in the clause. In discussing the pre-conditions at 180 His Honour said:
The first is that the result of the election was likely to be affected. The second is that it is just that the candidate should be declared not to be duly elected. The first of these conditions is plainly satisfied. If the first respondent had not been a candidate, he could not have been declared elected, so that the result of the election was affected. The justice of declaring the first respondent not to have been duly elected is also manifest. Although it might be said that the will of the electorate was reflected in the election of the first respondent, and that his candidature was the result of a mistake on his part, it is nonetheless the case that the electorate cannot have forced upon it a representative who is ineligible. The Court will therefore make a declaration to the effect that the first respondent was not duly elected.
In my view the same conclusion must be arrived at in respect of Ms Oakford, with the consequence that the Court will therefore make a declaration to the effect that she was not duly elected.
However cl. 12(3) raises the additional question as to whether the Court should declare the election void as a result of two unqualified candidates standing for election. Ms Oakford received 52, and Mr Lesage received 32 out of the 952 valid primary votes. Mr Lesage was excluded from the poll after count 41, then having 35 votes. Those votes were thereafter transferred to other candidates in accordance with the preferences of the electors at an appropriately calculated transfer value. As pointed out above, Ms Oakford was elected after count 51 with 66 votes. Her 52 primary and 14 preference votes, which were not distributed to other candidates due to her election, can be distributed on a recount or a further count. Clause 12(3) provides that the Court is not to declare any election void unless the Court is satisfied that the result of the election was likely to be affected by the illegal practice. I have found that the result of the election was affected by the illegal practice insofar as Ms Oakford's selection was concerned. However, the issue is whether the election of the other candidates is likely to be affected by the candidature of, and votes received by, Ms Oakford and Mr Lesage. The petitioners did not seek to present a case that the election was to be declared void, although they accepted that it was a matter ultimately for the Court to determine whether that relief was appropriate.
The election involved a relatively small number of votes (952) for a relatively large number of candidates (34) for 12 elected positions. The evidence does not suggest that the removal of candidates such as Mr Lesage and Ms Oakford is likely to have an effect on the election of other candidates. Mr Lesage's preferences were distributed in any event. The probable effect of the removal of candidates depends on numerous factors including the number of votes for the candidates removed, whether they are removed at the same time, the quota, first preference votes received by various candidates and the flow of preferences. The illegal practices in the present case might have affected the election but I am unable to conclude that it is likely that they did so.
Further, it is not just that any of the other candidates should be declared not to be duly elected or that the election should be declared void. The findings that an illegal practice occurred in the present case came about as a result of research into the genealogies of Ms Oakford and Mr Lesage. The questions raised were complex and difficult. There is no evidence that any candidate (including Mr Lesage or Ms Oakford) was aware of what I have found to be an "illegal practice". Ms Oakford's preferences can now be distributed with the consequence that those voting for Mr Lesage or Ms Oakford will not have been disenfranchised in respect of their second and subsequent preferences. In these circumstances, in my view, it would not be just to interfere with the election other than in relation to Ms Oakford.
The more difficult question is to determine what orders the Court should make consequent upon the declaration to be made in respect of Ms Oakford. As was said by Foster J in Australian Electoral Commission v Towney (1994) 51 FCR 250 at 255:
the primary role of a court of disputed returns is to protect the integrity of the franchise.
When confronted with the same problem in Pettit, Gray J said at 180:
The powers of the Court, which are set out in cl. 10 of Sch. 4 to the Act, are very broad. By subcl. (2), they may be exercised "on such grounds as the Court in its discretion thinks just and sufficient". The object of the Court should be to give effect, as far as is possible, to the will of the electorate.
Gray J was conscious of the problems of ascertaining the will of the electorate in relation to an election conducted in a multi-member proportional representation constituency, such as an ATSIC Regional Council election. After considering the way in which a similar issue was addressed in Re Wood [1988] HCA 22; (1988) 167 CLR 145 at 163, 164-5 and 165-6, His Honour concluded at 184 that it was appropriate to follow the course taken in Re Wood. In the present case that course would involve the vacant position being filled by a further count or a re-count of the votes already cast in a manner that enables Ms Oakford's preferences to be distributed but would otherwise approximate the process of counting or re-counting that might occur for a casual vacancy. On the basis of the contentions and evidence currently before me, orders similar to those made in Pettit by Gray J appear to be appropriate in the present case for reasons similar to those pronounced by His Honour. That course seems preferable and more likely to give effect to the integrity of the franchise and to protect the will of the electorate than a fresh election for the vacancy or to allow the vacancy to remain until 1999 when a new Regional Council election is to be held.
For the reasons set out above I have concluded that it is appropriate that the Court make the following orders:
1. The Court declares that Ms Debbie Oakford was not duly elected as a Regional Councillor of the Tasmanian Regional Council of the Aboriginal and Torres Strait Islander Commission for the Hobart Ward and that there remains one place on the Tasmanian Regional Council to be filled from the Hobart Ward.
2. The Court orders that the Regional Returning Officer undertake further counting or re-counting of the ballot papers cast in the Hobart Ward for election to the Tasmanian Regional Council of the Aboriginal and Torres Strait Islander Commission for the purpose of determining the candidate entitled to be elected to the place for which Ms Debbie Oakford was returned.
The manner in which the further counting or re-counting of the ballot papers is to be conducted, including whether it should as nearly as practicable be in accordance with the provisions of the Schedule to the Regional Council Election (Casual Vacancies) Rules (with appropriate modifications), may involve some complex issues. Accordingly, I do not propose to make formal orders at this stage but I will direct that the Australian Electoral Commission, after consultation with the parties or their legal advisers, bring in proposed Minutes of Orders within 21 days. If there are any differences of opinion as to how the count or re-count should be conducted I will resolve those differences in due course.
The Court has a wide discretion to order costs see: cll. 10(1)(k), 10(4) and 26 of Sch. 4. In particular the Court does have power to award costs against any unsuccessful party to a petition but it also has power to award costs to be paid by the Commonwealth where the Court considers it appropriate to do so. The question of costs in the present case raises difficult questions. The petitioners have succeeded in their claims only against two out of 11 of the respondents whose eligibility they challenged. To that extent they were an unsuccessful party in relation to the petition. On the other hand they successfully challenged two of the respondents and as a result of the proceeding, are entitled to a count or re-count in respect of the ineligible candidate who was elected. Further, the case has raised difficult and important questions as to who is to be treated as an Aboriginal person for the purposes of the Act. Those questions required some clarification in the public interest.
The successful respondents are entitled to recover their legal costs as they were brought to the Court and made parties to the proceeding through no fault of their own.
The Australian Electoral Commission has been heard upon the petition in the
proper performance of its function to assist the Court.
In such circumstances
it is normally appropriate that it bear its own costs: see Free v Kelly
(1996)
[1996] HCA 42; 185 CLR 296 at 305.
Finally, there is the position of the Commonwealth. By reason of the way in which the Act and the Rules are structured the contravention that I have found has occurred has arisen from the conduct of the election in contravention of the Act and the Rules. In the circumstances of the present case I am not satisfied that that has occurred as a result of any fault or culpability on the part of any person. However it is that contravention that has attracted the jurisdiction of the Court under cl. 12(3) and resulted in partial success on the part of the petitioners in relation to the relief sought by them. Further, the proceeding, as I have indicated, does raise and clarify matters that are important and ought to be resolved in the public interest. In all these circumstances, and in particular, by reason of cl. 10(4) this may be a case where it is appropriate to consider that some costs order ought to be made against the Commonwealth. I indicated at the hearing that if I arrived at that conclusion I would afford the Commonwealth an opportunity to address me on the question of costs. In all the circumstances I propose to direct that the parties and the Commonwealth, within 21 days, file any written submissions that they wish to make as to the costs orders that they contend are appropriate. If any of the parties wish to have a further hearing on the question of costs that issue can be addressed in the submissions.
The context within which the findings I have made in this case should be clearly understood. Under the Act I am required to ascertain whether the petitioners have established that any of the relevant respondents are not Aboriginal persons as defined in the Act. My finding that the petitioners have established that two of the respondents do not satisfy the statutory definition, is not intended to do more than establish that on the evidence before me I am satisfied that the petitioners have discharged their onus of proving that those two respondents were not entitled to stand as candidates for the ATSIC Regional Council election held in 1996.
In a democratic society individuals have the right to adopt such identity and culture as they may choose to adopt. Likewise, subject to human rights and equal opportunity legislation, communities in such a society are free to recognise or refuse to recognise the identities or cultures adopted by the various members of that society. Those are matters of sociology and generally there should be little or no role for the law in that process. My findings do not interfere with those fundamental rights.
However, in seeking to redress some of the wrongs of the past as well as to assist Aboriginal persons a number of laws have been enacted and services provided by the state which understandably are solely for the benefit of Aboriginal persons. Consequently some criterion is necessary to define the beneficiary group. Aboriginality as such is not capable of any single or satisfactory definition. Clearly the Aboriginality of persons who have retained their spiritual and cultural association with their land and past will differ fundamentally from the Aboriginality of those whose ancestors lost that association.
The present case offers a good example of the difficulties thrown up by issues of Aboriginal identification. That some descent may be an essential legal criterion required by the definition in the Act is be accepted. However in truth, the notion of "some" descent is a technical rather than a real criterion for identity, which after all in this day and age, is accepted as a social, rather than a genetic, construct. The solution to such problems is a matter for the legislature rather than the courts.
It is unfortunate that the determination of a person's Aboriginal identity, a highly personal matter, has been left by a Parliament that is not representative of Aboriginal people to be determined by a Court which is also not representative of Aboriginal people. Whilst many would say that this is an inevitable incident of political and legal life in Australia, I do not accept that that must always be necessarily so. It is to be hoped that one day if questions such as those that have arisen in the present case are again required to be determined that that determination might be made by independently constituted bodies or tribunals which are representative of Aboriginal people.
Finally, I express my appreciation of the constructive, invaluable and helpful contribution of my associate Claire Harris in relation to this matter.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1998/26.html