1 Answer

The Terms of Reference refer to ‘the Aboriginal people of Australia’, to ‘Aborigines’, to ‘members of the Aboriginal race’, to ‘Aborigines ... living in tribal conditions’ and to ‘Aboriginal communities’. Questions of the definition of these terms, and in particular of ‘Aborigine’, arise both generally and in relation to s 51(26) of the Constitution, which is the main source of Commonwealth legislative power for this purpose.[5] It is possible that the ordinary definition and the constitutional definition may diverge. In addition, alternative definitions are still in use by some State government departments, and existing Commonwealth and State legislation contains a variety of formulations of ‘Aborigine’ or ‘Aboriginal’.[6]89. Early Attempts at Definition. Early attempts at definition tended to concentrate on descent, without referring to other elements of ‘Aboriginality’. This is not surprising, given that few (if any) persons of Aboriginal descent were not Aboriginal in this other sense. Problems of definition did however arise in deciding whether descendants of unions between Aborigines and settlers were to be regarded as Aboriginal for the purposes of various restrictive or discriminatory laws (eg disentitling Aborigines from voting or enrolling to vote). In applying such restrictive laws it was necessary to identify who was Aboriginal, and tests based on ‘quantum of blood’ were commonly applied.[7] The notion that Aboriginality was exclusively a matter of descent, and that ‘preponderance of [non-Aboriginal] blood’ meant that one was not Aboriginal, became and remained influential, and were sometimes applied by courts with total disregard for context.[8] However the term ‘Aborigine’ in ordinary use has increasingly been taken to mean a person of Aboriginal descent identifying as an Aborigine and recognised as such. Definitions based on ‘quantum of blood’ have correspondingly been rejected as unsatisfactory, indeed discriminatory.