Australian Aboriginal identity
Successive censuses have shown those identifying as Indigenous (Aboriginal and/or Torres Strait Islander) at a rate far exceeding the growth of the whole Australian population.
A legal historian estimated in 1991 that at least 67 classifications, descriptions or definitions to determine who is an Aboriginal person had been used by governments since white settlement in Australia.
[1] The term "Aborigine" was coined by white settlers in Australia in the 1830s from ab origine, a Latin phrase meaning "from the very beginning".
[2][3] Until the 1980s, the sole legal and administrative criterion for inclusion in this category was race, classified according to visible physical characteristics or known ancestors.
The purpose of this provision was to give the Commonwealth power to regulate non-white immigrant workers, who would follow work opportunities interstate.
[6] The only other reference, Section 127, provided that "aboriginal natives shall not be counted" in reckoning the size of the population of the Commonwealth or any part of it.
[15] In 1978, the Cabinet of the Australian Government offered a three-part definition, based on descent, self-identification, and community acceptance.
The 1981 Report added impetus to the definition, and it was soon adopted by all Government departments for determining eligibility to certain services and benefits.
[16] The change to Section 51(xxvi) following the 1967 Referendum enabled the Commonwealth parliament to enact laws specifically with respect to Aboriginal peoples as a "race".
It was held that Aboriginal Australians and Torres Strait Islanders, together or separately, and any part of either, could be regarded as a "race" for this purpose.
As to the criteria for identifying a person as a member of such a "race", the definition by Justice Deane has become accepted as current law.
[20]The Commonwealth Definition continued to be used administratively and legislatively, notably in the Mabo case, which in 1992 recognised native title in Australia for the first time.
Debate continued until November 2002, with the Administrative Appeals Tribunal (AAT), which referred the question to the Federal Court.
The AAT found that It is probable that there are in the wider Tasmanian community persons who have a degree of Aboriginal descent although there are no public records which support their claim.
Ceremonies can play a large role in passing down Dreaming lore, customs connection to country, and laws of the group.
"[31] Academic Gordon Briscoe has also proposed that, among many other factors,[32] Indigenous health has historically shaped this identity, particularly in relation to British settlement of Australia.
The court then determined that if a person is thus deemed to be an Aboriginal Australian, they cannot be regarded as an alien in Australia, even if they hold foreign citizenship.
[39] The two men concerned, Daniel Love and Brendan Thomas, could not thus be deported as aliens under the provisions of the Migration Act 1958, after both had earlier been convicted of criminal offences and served time in prison until 2018.
[40][41] Having determined that both men (Love and Thoms) fulfilled the criteria of identification as Aboriginal, the Justices held "that it is not open to the Parliament to treat an Aboriginal Australian as an "alien" because the constitutional term does not extend to a person who could not possibly answer the description of "alien" according to the ordinary understanding of the word.
[42] The presiding judge Justice Bromberg found that the articles contained "erroneous facts, distortions of the truth and inflammatory and provocative language".
[42] In 2014, an ARC Indigenous research fellow, Warraimaay historian Dr Victoria Grieves Williams of the University of Sydney argued that further "understanding of the true nature of Aboriginal identity gives us an opportunity to begin to make decisions on who has the right to claim Aboriginality.
[49] Similarly, ABC Innovation's Little Yarns podcast aims to "celebrate the diversity of Indigenous cultures and languages", dispelling misconceptions regarding a "homogeneous Aboriginal identity".
