Queensland v. Wyvill

90 ALR 611
25 FCR 512; 1989 - 1124C - FCA; No. QLD G92 of 1989 Fed No. 732

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(Judgment by: Pincus J)

Between: Queensland
And: Wyvill

Court:

Judge:
Pincus J

Subject References:
Aborigines
Administrative Law

Hearing date: 3 November 1989
Judgment date: 24 November 1989

Brisbane

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Judgment by:
Pincus J

This is an application to review a decision of the respondent relating to the question whether one Darren Steven Wouters, deceased, was an "Aboriginal" within the meaning of certain letters patent issued under the hand of the Governor-General and that of the Governor of the State of Queensland respectively.  The application does not mention any statute, but is drawn in such a form as to suggest that the applicant intends to resort to the jurisdiction of this Court under the Administrative Decisions (Judicial Review) Act 1977 ("the Act").  However, insofar as the letters patent under which the question arises were issued under the hand of the Queensland Governor, the Act has no application and the application must be founded upon the cross-vesting legislation or the accrued jurisdiction of the Court.  The Attorney-General of the Commonwealth was represented as an intervener and Mr W.J. Adams, an uncle of the deceased, was also represented.

The letters patent to which I have referred authorise the respondent to inquire into certain deaths of "Aboriginals and Torres Strait Islanders" in custody.  No question arises as to the scope of the expression "Torres Strait Islanders" but the use of the word "Aboriginals" has, as might have been expected, given rise to a controversy, the applicant contending that in seeking to inquire into Mr Wouters' death the respondent was acting beyond power.  Mr Wouters was a young man partly of Aboriginal descent but of distinctly European appearance; his father was Dutch.  One question raised may be expressed in this way:  is every person who is part-Aboriginal within the terms of reference?

The structure established to authorise the respondent's work may be gathered from the reasons of the Full Court in Boath v. Wyvill (1989) 85 ALR 621 .  There was what might be called a head commission issued to the Honourable J.H. Muirhead Q.C. on 16 October 1987, to which the letters patent issued to the respondent were ancillary; that is, the chief responsibility was vested in Mr Muirhead and the respondent was directed to report to him, Mr Muirhead acting as a "conduit or a channel of communication between the respondent and the Executive" (Boath v. Wyvill at p 633).

The decision which is challenged was described by the respondent as a "ruling on jurisdiction" and was issued on 1 September 1989.  After referring to the evidence and certain legal considerations, the respondent said:

"I therefore hold that Darren was an Aboriginal whose death in the Brisbane City Watchhouse on 15 November 1987 is within my terms of reference."

It was not contended that the Court lacks jurisdiction to determine the correctness of the respondent's view that the deceased was an "Aboriginal" within the terms of reference.  It appears to me that the respondent's conclusion, insofar as it is based on the authority of federal legislation, is a "decision" susceptible of attack under the Act, although it does not establish or necessarily affect rights:  Lamb v. Moss (1983) 49 ALR 533 ; Bond & Ors v. Australian Broadcasting Tribunal (unreported, Full Federal Court, 12 September 1989)  Further, it is a decision "of an administrative character": Ross v. Costigan (No. 2) (1982) 41 ALR 337 .  The position under State law is mentioned below.  The question whether there is any relevant ground of attack in s 5 of the Act is discussed below.

According to the material filed, three letters patent were issued to the respondent under the hand of the Governor-General.  The first, dated 6 May 1988, appointed the respondent to inquire, within certain defined limits as to date and otherwise, into the death - "of Aboriginals and Torres Strait Islanders ... whilst in police custody, in prison or in any other place of detention, but not including such a death occurring in a hospital, mental institution, infirmary or medical treatment centre unless injuries suffered while in police custody, in prison or in any other place of detention caused or contributed to that death".

The respondent was also authorised to inquire into "subsequent action taken in respect of each of those deaths ..."

There were second and third letters patent which varied the first, but it is unnecessary to mention the changes except to say that the third letters patent dated 27 April 1989 included reference to the Honourable Elliott Frank Johnston QC in lieu of reference to the Honourable James Henry Muirhead Q.C. Mr Johnston, on the same date - i.e. 27 April 1989 - had issued to him letters patent which achieved the result that he assumed the principal role formerly undertaken by Mr Muirhead.  The commission issued to Mr Johnston included a paragraph which may have a bearing upon the question I have to consider:

"AND We further declare that, for the purpose of reporting on any underlying issues associated with those deaths, you are authorised to take account of social, cultural and legal factors which, in your judgment, appear to have a bearing on those deaths."

Before me, something was sought to be made of the reference in this paragraph to social and cultural factors.

Apart from the Commonwealth letters patent referred to, the material included three letters patent issued under the hand of the Governor of the State of Queensland to the respondent and letters patent similarly issued, dated 29 June 1989, to Mr Johnston.  The State letters patent differ in no presently relevant way from those issued under the hand of the Governor-General.

None of these documents provides any definition of the word "Aboriginal". That is not to say, however, that the scope of the respondent's authority under the letters patent depend upon any subjective factor; no doubt the letters patent could have made the scope of the inquiry depend on the respondent's belief as to the racial character of the particular deceased, but they did not do so; see H.W.R. Wade, "Administrative Law" 6th Ed. pp 285, 460.

The central point taken by Mr Bourke, who appeared for the applicant, was that the respondent had erred in law in deciding the matter on the basis that a proportion of Aboriginal genes is enough in itself to justify classifying their possessor as an Aboriginal.

In the respondent's reasons, reference was made to an expression of view in the judgment of Deane J. in The Commonwealth v. Tasmania (1983) 158 CLR 1 at p 274 as to the meaning of "Australian Aboriginal"; it is quoted below. The respondent expressed himself to be unconvinced of the suitability of Deane J.'s definition for the purposes of his inquiry.  He took the view that:

"... in its ordinary and natural sense in modern usage, the word 'Aboriginal' includes people of proven Aboriginal descent and I agree with what Commissioner Muirhead said in Majurey's case that the death in custody of a person of proven Aboriginal descent must qualify for inquiry albeit that there may be no evidence of community or self-identification of that person as an Aboriginal."

On that basis, it was (as I have said) held that the deceased was an "Aboriginal" whose death was within the respondent's terms of reference.

In the Majurey matter, in determining a similar question, Mr Muirhead said in effect that proven Aboriginal descent is enough (p 11) but that even in its absence, a deceased might fall within the terms of reference when - "... true integration in what I term 'Aboriginal society' is sufficiently proved to be of long standing and has unequivocal Aboriginal community support." (p 14) It was plainly the former view, and not the latter, to which the respondent alluded in expressing agreement with what was said by Mr Muirhead.

Counsel for the Commonwealth Attorney-General (Messrs Rose and Gageler), who argued against the applicant, did not seek to support the view that any admixture of Aboriginal blood is sufficient to enable the person to be called an "Aboriginal"; nor, I think, did Mr Boccabella (for Mr Adams) seek to do so. Nevertheless, the question requires examination.

The first meaning of "Aboriginal" in the Oxford English Dictionary is "First or earliest so far as history or science gives record", which is a definition whose appearance of accuracy is specious.  It is thought that the first humans came to this continent, then not separated by water from what is now the coast of New Guinea, some 40,000 or 50,000 years ago.  But no doubt the ancestors of those who inhabited the continent when the first Europeans came included people who migrated here much more recently than the first human arrivals.  The "origin" which the word "Aboriginal" assumes to have occurred is, in ordinary usage, not intended to refer to human beginnings here, but to the whole long period up to European arrival.  If anyone could prove that, as at a date before the first European settlement here, all his or her ancestors were inhabitants of this country, he or she would I think be in the strictest sense an "Aboriginal".  However, as is implied in the reasons given in the Majurey matter, it may be extremely difficult to establish facts of that sort. There must be many people in Australia with, say, 1/64th or 1/32nd Aboriginal genes, the presence of which is unknown to them and undetected by others. Even if such a trace of Aboriginal ancestry were proved, in my opinion the person concerned would not ordinarily be called an "Aboriginal".  It is important to keep in mind that the respondent's authority does not expressly include, as it might have done, investigating deaths of part-Aboriginals.

It is my view that it is ordinary usage which is relevant here.  In Muramats v. The Commonwealth Electoral Officer for the State of Western Australia (1923) 32 CLR 500 , the question arose whether Mr Muramats was an "aboriginal native of ... Asia" for the purposes of electoral legislation. Higgins J., the only judge who gave detailed reasons, referred at pp 505 and 506 to articles in the Encyclopaedia Britannica and said:

"This is not material on which Courts can act in applying an Australian statute.  In my opinion, the word 'aboriginal' in  (the relevant legislation) means 'aboriginal' in the vernacular meaning of the word as used in an Act addressed to inhabitants of Australia or Western Australia.  Whom would Australians treat as aboriginal natives of Australia or of Asia?" (pp 506-507).

I say more of this case below.  It was followed on this point by the Full High Court in Ofu-Koloi v. The Queen (1956) 96 CLR 172 at p 175.  The question there was whether, within the meaning of a Papuan law, the appellant was guilty of unlawfully and indecently dealing with a European girl under the age of 12 years.  The point on which the view of Higgins J. which I have quoted was followed was the construction of another Papuan ordinance giving power to the Court to determine the "question whether a person is a native, part-native or European" by inspection.  The Court was apparently of opinion that the "familiar terms 'native' and 'European'" were to be applied in accordance with their "accepted meaning in Papua and New Guinea".

In these two authorities, then, words in the same general class were held to have that meaning which they have in the vernacular, i.e. in common speech. In the latter case the Court went on to refer to the difficulty of deciding such a question in marginal cases and added (p 176):

"But that kind of difficulty is familiar in courts when inexact terms from common speech are employed in legislation."

Then there are two statements by Deane J.  The first is in The Commonwealth v. Tasmania (above) at pp 273, 274, where his Honour expressed a rather similar view, in construing the expression "people of any race" in s 51(xxvi) of the Constitution:

"Plainly, the words have a wide and non-technical meaning ...  The phrase is, in my view, apposite to refer to all Australian Aboriginals collectively.  ...  By 'Australian Aboriginal' I mean, in accordance with what I understand to be the conventional meaning of that term, a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognized by the Aboriginal community as an Aboriginal."

It was this definition which was treated by the respondent as unsuitable for his purposes.  In Gerhardy v. Brown (1985) 159 CLR 70 at p 145, Deane J. discussed the use of the expression "Aboriginal person" in the context of State land rights legislation.  His Honour remarked:

"At least as a general matter, both membership of the particular Aboriginal people and affiliation with, and responsibility for, ancestral lands under applicable Aboriginal tradition are primarily based on descent or ethnic origin."

In my view, this second statement deals with a rather different problem, one of fact, rather than with the meaning of the word "Aboriginal".

These cases in the High Court provide some support for adopting the ordinary usage, rather than attempting to construct a technical definition, of the word "Aboriginal" in statutes.  In this case it was contended, correctly as I think, that the reference in what might be described as the head letters patent to taking into account social and cultural factors in the inquiry is consistent with this line of thought.

I was also referred to decisions of Toohey J. sitting as Aboriginal Land Commissioner in the Uluru (Ayers Rock) National Park and Lake Amadeus-Luritja Land Claim and in the Finniss River Land Claim.  His Honour was there concerned with a definition in the Aboriginal Land Rights (Northern Territory) Act 1976.  Section 3(1) defined "Aboriginal" to mean "a person who is a member of the Aboriginal race of Australia".  His Honour took the expression "Aboriginal race of Australia" - "... to include the descendants of those people who inhabited Australia at and before the time Europeans arrived". He took the definition, presumably because of the presence of the word "race", to be "genetic rather than social".

The "golden rule" of statutory construction is sometimes used to describe the requirement that words in statutes be given, prima facie, their ordinary meaning.  In my opinion, there is no sound basis for departing from the rule here, and any inclination to do so should be discouraged by the views expressed in the High Court, when construing similar words.  I am further of opinion that the ordinary meaning of the word "Aboriginal", as used in the community, is a broad one.  Ordinary usage would not apply the term to a person believed to have no Aboriginal ancestry, however closely associated with Aboriginals.  It would be inconsistent with ordinary usage to describe such a person as an "Aboriginal"; but on the other hand it is not the case that proof of any degree of such ancestry, however slight, would be enough in itself to justify the use of the term.  To return to the examples given above, which after two centuries of European occupation are by no means fanciful, the discovery that a person had a small trace of Aboriginal descent would not, without more, ordinarily cause those who knew him to describe him as an "Aboriginal".

The majority of people who identify themselves as Aboriginal are, at least in the Eastern States, only partly so. For example, the 1961 census figures included 1,488 full-blood and 13,228 "half-blood" Aboriginals in New South Wales.  According to C.D. Rowley's "Outcasts in White Australia" (ANU Press, 1971), there has been a substantial decline in the number of New South Wales pure-blooded Aboriginals over 100 years and a considerable rise in the number of part-Aboriginals in that State (p 9).  It does not seem practicable, nor is it in accordance with the requirement that the ordinary meaning of the word "Aboriginal" be used, to proceed on the basis that every part-Aboriginal is intended to be included in unqualified statutory references to "Aboriginals".

The attraction of the theory that the letters patent cover anyone of "proven Aboriginal descent" (which presumably means of whatever degree) is its apparent simplicity.  In discussing the definition adopted by Deane J. in the Dams case, the respondent said that for his purposes it would "serve to create rather than avoid difficulties".  The respondent went on:

"To whom and in what circumstances must a person of Aboriginal descent identify himself as such?  With what frequency, if any, must he confirm such identity?  What are the consequences of inconstancy? What is the Aboriginal community by which he he must be recognised as being of Aboriginal descent?"

These questions remind one of the discussion of the difficulty at the edges of racial classification referred to by the Full High Court in Ofu-Koloi v. The Queen (above) at p 175.

In my respectful opinion, the weight of authority is against the adoption of a merely genetic notion of the meaning of the word "Aboriginal" and favours the following of ordinary usage. It is true that the "genetic test" may be thought to receive some support from remarks made by Higgins J. in Muramats v. The Commonwealth Electoral Officer (above).  After referring to a dictionary definition of "Aboriginal", his Honour remarked:

"In other words, those are aboriginals (for Australian Acts) who are of the stock that inhabited the land that Europeans came to it"

As I have mentioned, Higgins J. favoured the use of the vernacular meaning and presumably thought that the sentence just quoted expressed it.  If "of the stock" in the passage means "having any genetic trace", then that is not the meaning which common usage attributes to "Aboriginal" now, if it ever was.

I therefore hold that the respondent, in treating the word "Aboriginal" as including "people of proven 'Aboriginal' descent" was in error if he meant, as I think he did, to treat as irrelevant social factors such as self-recognition as Aboriginal and recognition by the Aboriginal community. Some people with such descent, mixed with other inheritance, are not regarded as Aboriginals.

After holding that the deceased was an "Aboriginal" within the terms of reference, the respondent went on:

"Should it be necessary to establish more than mere descent, I find that Darren did identify himself to a number of people as being of Aboriginal descent. Further, that he has not sought to deny or to avoid disclosure of his Aboriginal ancestry.  No one to whom he has so identified himself has challenged his claim.  Finally, being of Aboriginal descent, had he sought it, he would have received recognition as an Aboriginal by Aboriginal organisations in Queensland."

These findings may be intended to imply, although the respondent did not say so, that even on the test which the respondent eschewed, the deceased would qualify as an "Aboriginal".  Mr Bourke argued that the Court should not only hold that proof of a degree of Aboriginal ancestry is not necessarily sufficient (as I have done), but hold that the late Mr Wouters was not an Aboriginal.

The question arises whether the Court may or should enter upon this latter area of controversy.

Insofar as the jurisdiction invoked is that vested in the Court by the Act, this Court may overrule factual conclusions only to a limited extent.  Is the question whether Mr Wouters was an "Aboriginal" one of law?  It involves a legal point which I have dealt with, namely whether one gives the word "Aboriginals" in the letters patent its ordinary meaning which (as I have also held) may involve, in particular cases, consideration of criteria other than the genetic.  But once that is established, in my opinion the question becomes one of fact.  It is necessary, then, to determine whether the respondent's conclusion falls within that category of cases in which this Court may intervene.

Under the general law, it would, in my opinion, be possible to grant a declaration or other relief with respect to the respondent's power to inquire into the death of Mr Wouters, even if the alleged error were wholly factual; the same position applies under ss 5(1)(c) and 16(1)(c) of the Act.  That is so because the question is one of "jurisdiction" in the sense in which that word is used in this context.  "Jurisdiction" is a term primarily applied to the power of a court, but in administrative law it has a well-established usage as applying to bodies and persons exercising powers of a non-judicial character.  Such bodies and persons cannot, in general, give themselves jurisdiction by an erroneous decision as to matters on which their jurisdiction depends:  R. v. Hickman; Ex parte Fox (1945) 75 CLR 598 at pp 606, 609; R. v. Secretary of State for the Home Department; Ex parte Khawaja [1984] 1 AC 74 at pp 97D and 105D. There is authority that even in respect of superior Courts of record, the High Court may in the exercise of its supervisory jurisdiction determine factual questions on which jurisdiction depends: D.M.W. v. C.G.W. (1982) 151 CLR 491 at p 510 (per Dawson J.).

In the leading case, Parisienne Basket Shoes Proprietary Limited v. Whyte (1938) 59 CLR 369 , Dixon J. pointed to the inconvenience of the legislature's adopting the course of making "the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist" (p 391).  In consequence, his Honour said:

"... no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed."

This presumption in favour of courts (whether superior or inferior) having jurisdiction dependent upon their "opinion or determination that the (jurisdictional) facts do exist" does not operate in favour of administrative decisions, and as Professor Wade puts it:

"In administrative cases the prescribed statutory ingredients will more readily be found to be collateral" (op cit p 288).

It would seem, however, to be burdensome, both from the point of view of supervising courts and from that of the administrative body, to have the former undertake the task of repeatedly determining jurisdictional issues dependent on questions of fact in matters arising before the latter.

Particularly is that so where the jurisdiction is made to depend upon an expression which is inherently vague, like "Aboriginal"; it might be expected that, as to quite a number of potential subjects of examination by the respondent, there will be room for difference of opinion as to whether such subjects fall within or outside the true scope of the word "Aboriginal."

In respect of purported exercises of the conciliation and arbitration power, the High Court has held that in determining jurisdictional questions, considerable weight may be given to the Commission's view of the relevant facts:  R. v. Williams; Ex parte The Australian Building Construction Employees' and Builders Labourers' Federation (1982) 153 CLR 402 at p 411. But that doctrine does not appear to apply except where the issue "is one in the resolution of which the Commission's knowledge of industry specially equips it to provide an answer".  In my opinion, the question whether Mr Wouters was an "Aboriginal" in the ordinary sense of the expression is not one in respect of which the respondent or anyone else has expert knowledge; it is simply a matter of ordinary usage, once the facts are known. Nevertheless, even in those circumstances, the party challenging the respondent's view as to a particular deceased person cannot succeed without satisfying the Court positively that he respondent's view is not merely dubious but wrong.

Here, as I have pointed out, the respondent's findings fall short of an expression of view that the late Mr Wouters was an "Aboriginal" in accordance with ordinary usage.  There was a finding that he identified himself to a number of people as being of Aboriginal descent, but that does not necessarily mean that he was an "Aboriginal" under the ordinary understanding of that term. Mr Rose argued that it would be absurd to hold Mr Wouters not to have been an Aboriginal because his mother was one.  If that principle is correct, then there will never come a point at which, as generations pass and Aboriginal blood is diluted, one can postulate of a particular individual that he is not an Aboriginal. Mr Wouters was the child of one partly Aboriginal parent and one European parent and I cannot accept that such a person is necessarily an Aboriginal.

The respondent had before him a considerable quantity of material, not all of it consistent, on the question being discussed.  In my opinion, this Court is in as good a position as the respondent was to determine the point, applying what I have held to be the correct test.  Indeed, in one sense, the Court has an advantage since photographs of Mr Wouters' mother were tendered here, which support the impression one gains from some other material that the mother's appearance was such that an observer might or might not have thought her to be Aboriginal.

Mr Wouters was born on 25 November 1969 and died on 15 November 1987, being then nearly 18 years of age.  The details of his early life are somewhat obscure, but it is said that his father died when he was three years old and that from an early age his care was subject to the direction of State welfare authorities.  In this particular case, it does not appear that this was due to his being part-Aboriginal.  Mrs Maria Wouters, the step-mother of his father, says that the child stayed with her when he was very young and she applied for custody of him, but that was refused.  It is also said that his mother, who was apparently a drug addict, took him, on more than one occasion, from the care in which the State authorities had placed him but at other times returned him.  However, the mother, Mrs Carol Wouters, appears not to have been heard of since her son was about six years of age.

Mrs Maria Wouters says that the boy stayed with her from time to time. He also stayed briefly on one occasion, when he was about 16 years of age, with an aunt and uncle, Mr and Mrs W.J. Adams.  Mr Adams is one of his mother's brothers and is described in the papers as an Aboriginal; Mrs Adams is Maltese.

I gather that the late Mr Wouters was largely in the care of foster parents until May or June 1984, when he was admitted to Boys Town.  He stayed there until November 1985 and went to Tarragindi Lodge where (as at Boys Town) he was under the care of members of the De La Salle order.  The director of Boys Town says that he understands that in September 1985 Mr Wouters was introduced to "relations on his mother's side" (presumably Mr and Mrs W.J. Adams) and he "first became aware that his mother was of Aboriginal descent". The statement goes on:

"I can recall that for a short while after that visit he was confused as to his ethnic identity. For example he made a boomerang and left it in his room and on occasions he could be observed standing whilst adopting a one-legged stance."

I have quoted this passage because it is one piece of evidence suggestive of Mr Wouters having identified himself as an Aboriginal.  However, the bulk of the evidence tends the other way.  For example, Mr and Mrs J. Kirk, who filled the role of Mr Wouters' "houseparents" in a cottage in which he resided for twelve months at Boys Town, said that Mr Wouters did not associate specifically with other Aboriginals, nor identified or perceived himself to be an Aboriginal.  His friend, Miss Leanne McGee, who knew him well in the few months before he died, said that Mr Wouters did not appear to identify with Aboriginals nor mix with them socially, nor talk about Aboriginal issues or problems. There is certainly evidence that Mr Wouters, a few years before he died, became aware that he had Aboriginal blood and no doubt that influenced his view of himself, but it did not do so to the extent of making him in any sense part of the Aboriginal community.  As far as is known, the only time he lived in an Aboriginal household after infancy was during the few days he spent with Mr W.J. Adams and his wife.

The remaining question is the genetic one.  There is no doubt that despite having light skin and blond hair, Mr Wouters had a signficant infusion of Aboriginal genes, but what proportion is unclear.  Mrs Adams says that Mr W.J. Adams had a grandfather who was a full-blooded Aboriginal, but the racial state of his other three grandparents is not stipulated.  Mrs Adams also says that both of the late Mr Wouters' maternal grandparents were Aboriginal; the inference is that they were or are only partly so, so far as one can judge from the photograph of Mrs Carol Wouters, and indeed that of Mr Wouters deceased.

I have received some submissions (not from counsel) which appeared to me not to invite an objective approach to the question posed.  No-one could fail to be moved by the fate of the people the respondent is concerned with, nor by the sad life-story of the young man in issue in this case.  It does not appear to me, however, that anything is gained by entertaining propositions which cannot be defended in law, such as that anyone is an "Aboriginal", for the purposes of the respondent's inquiry, who is thought by some representatives of the Aboriginal community to be one.

In summary, the late Mr Wouters was of European appearance and presumably of largely European extraction, his mother being part-Aboriginal and his father Dutch; although he became aware that he was part-Aboriginal, he was not identified by the community as an Aboriginal, nor did he regard himself as one. I have come to the conclusion that the late Mr Wouters was not an "Aboriginal" within the meaning of the letters patent and there will be a declaration accordingly.  It will further be declared that the respondent has no power under any letters patent to inquire into the death of the late Mr Woutersend 90 ALR 620 .