Attorney-General (Cth) v Queensland

No judgment structure available for this case.

Re: ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA (INTERVENOR) and THE
NATIONAL ABORIGINAL AND ISLANDER LEGAL SERVICES SECRETARIAT
And: STATE OF QUEENSLAND and LEWIS FRANCIS WYVILL QC
No. Q G133 and 135 of 1989
FED No. 358
Aborigines - Administrative Law - Royal Commissions
25 FCR 125

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson(1), Spender(2) and French(3) JJ.

CATCHWORDS

Aborigines - Royal Commission - Aboriginal Deaths in Custody -

terms of reference - meaning of "Aboriginal" in Letters Patent -

descent - non-trivial genetic heritage - whether sufficient - self identification and community recognition - whether necessary to characterisation - part Aboriginal - European appearance - no strong evidence of self identification or community recognition -

need for purposive construction according to context.

Administrative Law - judicial review - Royal Commission -
concurrent Commonwealth and State Letters Patent - scope of inquiry - decision by Commissioner to inquire into particular matter - whether "decision" under enactment - character of decision under State Letters Patent - prerogative power - whether decision to enquire is exercise of prerogative - whether exercise of freedom to ask - whether reviewable - Aboriginal Deaths in Custody - part Aboriginal - European appearance - whether "Aboriginal" - relevance of self identification and community recognition - whether non-trivial genetic heritage sufficient -
nature of inquiry - concept of Aboriginality.

Royal Commissions - concurrent Commonwealth and State Letters Patent - decision as to scope of inquiry - judicial review - scope of Commissioner's powers - statutory - prerogative - basis of reviewability.

Words and Phrases - "Aboriginal"

Administrative Decisions (Judicial Review) Act 1977

Aboriginal Lands Rights (Northern Territory) Act 1976

Royal Commissions Act 1902

Commissions of Inquiry Act 1950 (Qld)

Royal Commissions Act 1968 (WA)

The Racial Discrimination Act 1975

Aboriginal Lands Act 1970 (Vic)

The Aboriginal Affairs Planning Authority Act 1972 (WA)

The Aboriginal Land Ordinance 1978

Northern Territory Sacred Sites Act 1989

Aboriginal Relics Act 1975 (Tas)

The Aborigines Act 1971 (Qld)

Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld)

Community Services (Aborigines) Act Amendment Act 1986 (Qld)

Aboriginal Land Rights Act 1983

Electoral Act 1907 (WA)

Commonwealth v State of Tasmania (1982-83) 46 ALR 625

Ross v Costigan (1982) 41 ALR 319

Huston v Costigan (1982) 45 ALR 559

Evans v Friemann (1981) 35 ALR 428

Lamb v Moss (1983) 49 ALR 533

Director-General of Social Services v Hales (1983) 47 ALR 281

Squires v Attorney General (1986) 68 ALR 251

Ricegrowers Co-Operative Mills Ltd v Bannerman (1981) 38 ALR 535

Legal Aid Commission of Western Australia v Edwards (1982) 42 ALR 154

Lockwood v The Commonwealth (1954) 90 CLR 177

Clough v Leahy (1905) 2 CLR 139

Cock v Attorney-General (1909) 28 NZLR 405

Ex parte Walker (1924) SR(NSW) 604

McGuinness v Attorney-General (Vic) (1940) 63 CLR 73

John and Waygood Ltd v Utah Australia Ltd (1963) VR 70

Bretherton v Kaye and Winneke (1971) VR 111

Victoria v Australian Building Construction Employees and Builders Labourers Federation (1982) 152 CLR 25

Boath v Wyvill (1989) 85 ALR 621

Re Cram; Ex parte The Newcastle Wallsend Coal Co. Pty Ltd (1987) 163 CLR 141

Minister for Arts Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218

Muramats v Commonwealth Electoral Officer (WA) (1923) 32 CLR 500

Ofu-Koloi v R (1956) 96 CLR 172

Vialpando v State of Wyoming (1982) 640 P 2d 77

Re Bryning (1976) VR 100

HEARING

BRISBANE

#DATE 16:7:1990

ORDER

The appeal is allowed.

The declarations and orders made by the learned trial judge on 24 November 1989 be set aside and in lieu thereof the application be dismissed.

The first respondent pay the appellant's costs of the appeal and of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The circumstances under which the questions for decision in this appeal have arisen, and the questions themselves, are fully disclosed in the reasons for judgment of French J., which I have had the advantage of reading.

The meaning of the word "Aboriginal" in the Letters Patent is in my opinion to be sought in the light, and within the constraints, of vernacular usage. But "when persons are in question who are, so to speak, on or near the boundaries of the racial classification as ordinarily understood, there will, of course, be a question of denotation and it may depend on the establishment by the courts of a more exact connotation of the expression than is customary in its use in vernacular speech" : per Dixon C.J., Fullagar and Taylor JJ. in Ofu-Koloi v. The Queen (1956) 96 CLR 172 at 176.
I apprehend that in vernacular use in Australia at this time the word "Aboriginal", used as a noun, is applied only to a person thought to be a descendant of the people who occupied this country before British settlement, or thought possibly to be a descendent of those people. Descent, at least as a real possibility, is essential, as I would find. In a case where the proportion of Aboriginal blood in a person of mixed race is thought to be small, or where uncertainty exists as to whether a person is in any degree of Aboriginal descent, the word may be used or eschewed in reference to that person under the influence of what may be called cultural circumstances. The cultural circumstances and the culturally influenced attitudes of any particular member of the Australian community whose choice it is on a particular occasion to use or to eschew the word in such a case may be put aside. I would find that, in reference to him who identifies himself as a person of Aboriginal descent and who is recognised as an Aboriginal by the Aboriginal community, the word "Aboriginal" will be used, notwithstanding that he is thought to be in only small part of Aboriginal descent, or to be not certainly, only possibly, of Aboriginal descent at all. Speaking of the phrase "people of any race" in s.51 (XXVI) of the Constitution, Deane J. said in The Commonwealth v. Tasmania (1983) 158 CLR 1 at 274:

"The phrase is, in my view, apposite to refer to all Australian Aboriginals collectively. Any doubt, which might otherwise exist in that regard, is removed by reference to the wording of par (xxvi) in its original form. The phrase is also apposite to refer to any identifiable racial sub-group among Australian Aboriginals. 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 recognised by the Aboriginal community as an Aboriginal."

If Deane J. is there marking out the furthest reach of the term in vernacular use, I respectfully agree in his finding. I could not find that either the identification or the recognition to which his Honour refers is necessary to attract the application of the term in ordinary parlance to a person known, or by the speaker believed to be, of wholly Aboriginal descent. Whatever the lengths to which such a person might go to deny or to conceal his membership of that group, and however complete and emphatic the denial might be of recognition by the Aboriginal community of that person as an Aboriginal, he would in ordinary speech be called an Aboriginal by those who knew, or thought they knew, his descent to be wholly Aboriginal. On the other hand, concerning persons whose genetic claims to the appellation are exiguous or uncertain in proof - "persons . . . . who are, so to speak, on or near the boundaries of the racial classification as ordinarily understood" - vernacular usage allows an influence to conduct of the kind Deane J. has indicated. In such a case the person may place himself outside the racial classification of Aboriginality by conduct which repudiates membership of the class, or he may place himself within that classification by conduct identifying himself as an Aboriginal. So too may rejection and acceptance by the Aboriginal community influence the placing of that person within or beyond that boundary. The closer to the boundary the person's genetic history - or, more accurately, the speaker's belief about that history - places him, the greater the influence of his conduct and of the conduct of the Aboriginal community.

The Commissioner found that Darren Steven Wouters was of Aboriginal descent, a finding not questioned in this court. He found also that "in its ordinary and natural sense in modern usage the word 'Aboriginal' includes people of proven Aboriginal descent". The Commissioner's stated reasons for his conclusion that Darren Steven Wouters was an Aboriginal show that he intended by the expression "people of proven Aboriginal descent" to comprehend a person, such as Wouters, who was not of wholly Aboriginal descent, and that his stated finding as to the vernacular meaning of the word "Aboriginal" was a finding that the word would be applied in reference to a person known to be partly of Aboriginal descent regardless of the proportion of Aboriginal blood thought to be carried by the person, regardless of the extent to which the person by his behaviour "identifies himself" as an Aboriginal or denies or seeks to conceal his Aboriginal descent, and regardless of the extent to which the person "is recognised by the Aboriginal community as an Aboriginal". It will be apparent that the Commissioner's finding as to the vernacular meaning of the word and my finding are different. He thought Aboriginal descent both necessary and sufficient. I think that certainty as to Aboriginal descent is not necessary, and I think that certainty as to Aboriginal descent is not always sufficient. But the meaning of the word is a question of fact and the difference in the findings does not necessarily establish any ground of review, under the Administrative Decisions (Judicial Review) Act 1977, in respect of the Commissioner's decision, if reviewable decision there was, or in respect of the conduct of the Commissioner in pronouncing his conclusion that Wouters was an Aboriginal, if reviewable conduct it was. No doubt a finding of fact as to the meaning of a word in ordinary parlance may be so wide of the mark as to involve an error of law establishing the ground specified in s.5(1)(f) and in s.6(1)(f) of that Act. Without considering whether the Commissioner's finding did involve an error of law of that kind, I pass to another question.
No party suggested, nor do I consider, that the word "Aboriginals" in either of the Letters Patent should be accorded any meaning other than that which it has in ordinary parlance in this country at this time. The learned trial judge's construction of the word also referred its meaning to vernacular usage, and he made a finding as to that meaning which I understand to be similar to the finding I have made. He thought, as I think, that a person known to be partly of Aboriginal descent might yet not be called an Aboriginal in ordinary parlance because his behaviour denied identification of himself as an Aboriginal and because recognition as an Aboriginal had been denied him by the Aboriginal community. His Honour acknowledged that, when the ordinary meaning of the word "Aboriginals" has been found, the remaining question is whether Darren Steven Wouters was within the meaning of that word, and that the latter question is also one of fact. His Honour held that, in determining whether the ground of review specified in s.5(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 - "that the person who purported to make the decision did not have jurisdiction to make the decision" - has been established, the court may base a conclusion that the ground has been established upon the court's finding that a fact upon the existence of which that jurisdiction was conditioned did not exist. A Full Court of this court has recently expressed in Eatts v. Dawson (unreported; judgment 23 May 1990), a similar opinion about the exercise of the jurisdiction conferred by s.39B of the Judiciary Act 1903 in relation to similarly worded Letters Patent. The learned trial judge in this case said (90 ALR at 618-619):

"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) 70 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 the respondent's view is not merely dubious but wrong."

The matters with which the learned trial judge dealt in the passage quoted were not the subject of submission on the hearing of the appeal. Nor does a ground of the application for an order of review make reference to, or make use of any of the language of, s.5(1)(c). If the passage quoted be accepted as correct, this court has, on appeal from his Honour's order, power to review his findings of fact and, if a finding of fact be considered by this court to be wrong, to determine the appeal upon its own conclusions as to the facts.
Darren Steven Wouters was born on 25 November 1969 and died on 15 November 1987. I would find that so young a person as Wouters was, and who was believed to be in substantial degree of Aboriginal descent, would not in vernacular usage be denied the name of Aboriginal by reason of any conduct of his which signified denial of his Aboriginality. It may be that there can be discerned in the legislation and the governmental and administrative policies of recent decades - perhaps also in judicial decisions - a tendency to allow to adolescents a greater influence upon the determination of matters of importance to themselves than had earlier been accorded. If so, popular opinion, and the vernacular idiom which is shaped by popular opinion, discloses much less of such a tendency, as I would find. I do not apprehend that in vernacular usage in this country the conduct of a youth not yet eighteen would influence a decision whether to accord or to deny him the designation of Aboriginal. Nor do I consider that the absence of recognition by any Aboriginal community of a youth of undoubted Aboriginal descent would have any influence on such a decision.
In case I be wrong in that finding as to the meaning of the word, I turn to consider the further question of fact as to whether Darren Steven Wouters did by reason of his conduct and by reason of conduct on the part of the Aboriginal community fall within or outside the meaning of the word.
I am content to accept the learned trial judge's finding that "Mr Wouters had a significant infusion of Aboriginal genes, but what proportion is unclear". I am prepared also to assume the correctness of the learned trial judge's finding that Mr Wouters "was not identified by the community as an Aboriginal, nor did he regard himself as one". If it be assumed, contrary to my finding, that the ordinary meaning of the word "Aboriginal" does not comprehend a seventeen year old youth partly of Aboriginal descent whose conduct manifests an intention to repudiate or to conceal his Aboriginal descent, and who thereby fails to identify himself with Aboriginals, yet the mere decision to regard himself, not as an Aboriginal, but rather as a white Australian, unaccompanied by any emphatic expression of that decision, does not suffice to take him outside that ordinary meaning, I would find. It is impossible to discern in the evidence any clear expression of that decision by Mr Wouters' conduct. As to the recognition or repudiation by the Aboriginal community of Mr Wouters, no occasion had arisen for a choice : he had not presented himself to any such a community for recognition, nor incited repudiation by any conduct of his. The lack of recognition could not, as I find, take him outside the meaning of the word "Aboriginal". Even a person on whose usage of the word "Aboriginal" the conduct of a seventeen year old youth and the attitude of the Aboriginal community to such a youth had an influence would, if furnished with the trial judge's findings about Mr Wouters which I have specified, refer to Mr Wouters as an Aboriginal.

For the foregoing reasons I am of the opinion that the application for an order of review should have been dismissed. There are, however, certain further observations which I think I should make about the case.
Concerning the question whether the Commissioner's conclusion that he should inquire into Mr Wouter's death in compliance with the requirement of the Commonwealth Letters Patent was reviewable under the Administrative Decisions (Judicial Review) Act 1977, I agree in what French J. has written. Concerning the question whether the conclusion that he should inquire into the death in compliance with the requirement of the Queensland Letters Patent is subject to the exercise of a supervisory jurisdiction by this court, I accept what French J., and the Full Court in Eatts v. Dawson, supra, have written.
Whenever the exercise of either jurisdiction by the court is invoked by the executive government of the Commonwealth or of a State on the ground that a person to whom Letters Patent for inquiry have been issued has misconstrued the terms of reference, or has erred in finding the vernacular meaning of a word therein, it will in my opinion be a question whether the court should in its discretion decline to grant relief. In this case, for example, the executive government of the State of Queensland invokes what is said to be the jurisdiction of the court to correct by appropriate curial order a Commissioner's misconstruction or other erroneous understanding of Letters Patent addressed to him by His Excellency the Governor of that State on the advice of that executive government. Because of the circumstance that in this case another executive government takes a different view of the meaning of the same word in Letters Patent concerning the same subject and addressed to the same Commissioner who will comply with both Letters Patent at the same time, the need of a curial determination of the meaning of the word is clearly demonstrated. But in other circumstances the court might have to consider whether it should leave the question of construction or fact undetermined because the executive government had available a more satisfactory course: supplementary Letters Patent making clear to the Commissioner its intention. This question was not the subject of submission and I mention it, without expressing any opinion, only so that the question be not overlooked.
I agree in the orders proposed by French J.

JUDGE2

The question on these appeals is the ordinary meaning of the word "aboriginal".

The factual circumstances in which this question needs to be answered are detailed in the reasons for judgment of French J. which I have had the advantage of reading in draft form.
Mr Wyvill QC, the Commissioner appointed under both State and Commonwealth Letters Patent, concluded in his "Ruling on Jurisdiction":

"The view I take is that in its ordinary and natural sense in modern usage the word 'Aboriginal' includes people of proven Aboriginal descent . . . "

In my respectful view, no legal error has been shown in his reaching this conclusion. The ordinary meaning of a word is a question of fact. While either of the Letters Patent might have defined the meaning to be ascribed to the word "aboriginal" in charging the Commissioner with the task of enquiring into the deaths of Aboriginals or Torres Strait Islanders, they did not, and it fell to the Commissioner to consider the meaning of the word in vernacular usage, having regard, no doubt, to the context in which it was used.
In the view I take of the matter, it is not a question of what the word means to a judge entertaining an application for an order of review, or on an appeal from a decision in such a case. It is only if legal error affected the fact finding process that judicial review is possible, let alone appropriate.
The principle of judicial deference in the area of administrative fact-finding is of crucial importance.
It is only if the conclusion that the ordinary meaning of "aboriginal" included "people of proven Aboriginal descent" was not reasonably open to the Commissioner that any ground for intervention, either under the Administrative Decisions (Judicial Review) Act 1977 or on a jurisdictional basis, is made out. If the meaning given to the word "aboriginal" by the Commissioner was clearly wrong, then and only then should this Court intervene.
Having said that, in my opinion, not only was the meaning given to the word "aboriginal" fairly open to Commissioner Wyvill, but was right.
The Macquarie Dictionary defines "aboriginal" as:

"adj. 1. of or pertaining to an aborigine.

2. (usu. cap.) of or pertaining to the Australian Aborigines. n. 3. (usu. cap.) an aborigine (def. 1),"

and "aborigine" as:

"n. 1. (usu. cap.) one of a race of tribal peoples, the earliest inhabitants of Australia.

2. a descendant of these people, sometimes of mixed blood . . . "

The Shorter Oxford Dictionary indicates that the word properly derives from the Latin ab origine, from the beginning, but this is not certain.
The definitions in the Macquarie Dictionary suggest, in the Australian context, that it denotes the people indigenous to Australia, prior to the European settlement in 1788. Its modern usage refers to those who are descended from such people, wholly or in part.
In my opinion, the finding by the Commissioner as to the meaning of "aboriginal" was clearly open to him. As a consequence, the appeal should be allowed, the application for an order of review dismissed, and the appellant should pay the costs of the application and the appeal.
Much of the difficulty in the present matter arises from the observations of Deane J. when dealing with the phrase "people of any race" in placitum (xxvi) in S. 51 of the Constitution in The Commonwealth v. Tasmania (1983) 158 CLR 1 at 274:

"The phrase is, in my view, apposite to refer to all Australian Aboriginals collectively. Any doubt, which might otherwise exist in that regard, is removed by reference to the wording of par (xxvi) in its original form. The phrase is also apposite to refer to any identifiable racial sub-group among Australian Aboriginals. 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 recognised by the Aboriginal community as an Aboriginal."

In my respectful opinion, neither the attribute of self recognition, nor recognition by "the Aboriginal community" is a necessary integer in the ordinary meaning of an aboriginal. I have reservations as to whether one can speak with any precision of "the Aboriginal community". It seems to me that this aspect of the matter can be put no higher than recognition as aboriginal by persons who are accepted by the person making the classification as being of aboriginal descent.
Further, in my opinion, the presence of either attribute, or even both, is not sufficient to constitute a person an aboriginal. Wishing cannot make it so.
I am not to be taken as saying that, when a person has to decide whether a person is an aboriginal, the factors of self recognition, or recognition by persons who are accepted as being aboriginals, are irrelevant. In cases at the margin, where aboriginal descent is uncertain, or where the extent of aboriginal descent might, on one view, be regarded as insignificant, each of those factors may have an evidentiary value in the resolution of the question. Once, however, it is established that the person is non-trivially of aboriginal descent, then in my view of the ordinary meaning of the word "aboriginal", that person is within that meaning.
The present is not such a borderline case. The evidence of the ancestry of Darren Steven Wouters before the Commissioner leads inevitably to the conclusion that Darren Steven Wouters had a "significant infusion of Aboriginal genes", as the learned trial judge found. An enquiry into the death in custody of a 17 year old youth of proven significant aboriginal descent, who was, according to a social worker at Boystown where he had stayed for more than a year until November 1985, "struggling with his identity - with who he was and with where he came from, where he fitted", is one which might produce useful results.
For the reasons I have given, the evidence as to Darren Wouters' ancestry was such as to permit the Commissioner to conclude, as he did, that Darren Wouters was an aboriginal, and was within the terms of reference of the Letters Patent. In the view I take of the ordinary meaning of the word "aboriginal", that evidence would require that finding.
I agree with the orders proposed by French J.

JUDGE3

Darren Steven Wouters was born on 26 November 1969 at Fairfield in New South Wales. His father, Gerald Wouters, was born in Holland. His mother, Carol Adams, was of aboriginal descent. On 15 November 1987, eleven days before his eighteenth birthday he died, apparently by his own hand, while in police custody at the Brisbane City Watchhouse.

On 1 May 1988 and 2 June 1988 Lewis Wyvill QC was appointed under separate commissions issued by the Governments of the Commonwealth of Australia and the State of Queensland to inquire into deaths of Aboriginals and Torres Strait Islanders while in police custody occurring since 1 January 1980. The details of these commissions and variations to them are set out later in these reasons.
One of the deaths into which Commissioner Wyvill proposed to inquire was that of Darren Wouters and he intended to begin that inquiry on 4 September 1989. However on 28 August 1989 it was submitted by counsel for the State of Queensland that Wouters was not an "Aboriginal" within the meaning of the Letters Patent and that the Commissioner had no authority to inquire into his death. Evidence, largely in the form of signed statements, some sworn and some not, was received relating to Wouters' descent, appearance, communal affiliation and self identification and the way in which he was regarded by others. On 1 September 1989 Commissioner Wyvill published a written ruling that he was an Aboriginal whose death was within his terms of reference. In substance he found that proof of aboriginal descent was sufficient to establish that a person was aboriginal for the purposes of his terms of reference regardless of that person's community affiliation or whether he identified himself as an aboriginal.
On the same day that his ruling was published, the State of Queensland filed an application in this Court seeking an order setting aside the decision and a declaration that Wouters was not an aboriginal for the purposes of the Letters Patent. The application sought to impugn the ruling as in effect beyond authority under both the Commonwealth and State Commissions. So far as it related to the Commonwealth Commission it was brought under the Administrative Decisions (Judicial Review) Act. So far as it related to the State Commission, it was assumed that the power of the Court to grant the relief sought arose under either the accrued jurisdiction or that conferred by the relevant State cross-vesting legislation. In the event, the application was heard by a Judge of this Court. The Commissioner was named as respondent but took no active part in the proceedings. The Attorney-General of the Commonwealth intervened and Wouters' uncle, Mr W.J. Adams, was represented at the hearing. On 24 November 1989 the learned trial Judge in effect upheld the challenge brought by the State of Queensland and made declarations that:

1. Darren Stevens Wouters was not an "Aboriginal" within the meaning of the Letters Patent issued to the Respondent.

2. The Respondent has no power under any Letters Patent to inquire into the death of Darren Steven Wouters.

These appeals, brought against that decision by the Attorney-General of the Commonwealth and the National Aboriginal and Islander Legal Services Secretariat, seek to substitute for the declarations an order dismissing the application for review and in the alternative an order that the decision made by the Commissioner be set aside and the matter remitted to him for reconsideration in accordance with law.

The Letters Patent

It is apparent from the terms of the Letters Patent issued on 1 May 1988 that the role of Commissioner Wyvill was ancillary to that of the Honourable James Henry Muirhead, initially commissioned on 16 October 1987 to inquire into aboriginal deaths in custody throughout Australia. Commissioner Wyvill's Letters Patent required him to consult generally with Mr Muirhead and to conform with his guidelines for the purpose of establishing a uniform approach in relation to inquiries. He was also directed that when requested by Mr Muirhead to consult with him in relation to the preparation of his report or reports under the head commission, he was to do so.
Subject to those general directions, the terms of reference defined by the Letters Patent of 1 May 1988 required Commissioner Wyvill to inquire into:

"(a) deaths:

(i) in the State of Queensland; and

(ii) where, in a particular case, or any particular cases, you are so requested by the Honourable James Henry Muirhead under the existing Commission - elsewhere in Australia since 1 January 1980 of Aboriginals and Torres Strait Islanders (including any such death that may occur after the date of these Our Letters Patent) 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; and

(b) any subsequent action taken in respect of each of those deaths including, but without limiting the generality of the foregoing, the conduct of coronial, police and other inquiries and any other things that were not done but ought to have been done . . . "

On 7 April 1989, Elliott Frank Johnston QC was substituted by Letters Patent of that date for Mr Muirhead with the same terms of reference as his predecessor, save for the following addition:

"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."

Consequential variations to the Letters Patent issued to Mr Wyvill QC, to take account of the appointment of Mr Johnston QC, were issued by the Governments of the Commonwealth of Australia and the State of Queensland on 27 April 1989 and 29 June 1989 respectively. These variations did not import the additional reference to "social, cultural and legal factors" mentioned in the Letters Patent issued to Mr Johnston QC. However the Court was informed without objection, that Commissioner Johnston had given directions to those holding ancillary commissions to consider these "underlying factors".

The Evidence Before Commissioner Wyvill

The evidence before Commissioner Wyvill largely comprised written statements by various persons who were related to or had in one way or another come into contact with Darren Wouters. The relations, whose evidence touched upon his aboriginal descent and affiliations, came from his mother's and father's families. Statements were received from his uncle, Walter Adams, who was Carol Adams brother, and from Carmen Adams, Walter's wife. Walter made two statements which were in evidence. He said of himself that he was of aboriginal descent, identified as an aboriginal and was accepted as such "in the community that I have lived in for the past 20 years". His parents, both deceased, were of aboriginal descent. He had used services available to aborigines through the Aboriginal Legal Service and for his children in the form of the Aboriginal Secondary Education Allowance. His daughter, Dianne, lives in a Housing Commission home given to her under a special housing for aborigines program. He had not seen his sister Carol for some 15 years. He remembered meeting Darren's father and first saw Darren then. According to Carmen Adams, Darren was then 6 months old. That was also the last time that Walter saw Carol. Darren visited him and his wife in 1985 or 1986 and stayed with them for 9 or 10 days. Even during that time, Walter had hardly any contact with him. Carmen remembered seeing Darren once when he was a baby about six months old. She next saw him when he visited them in 1985. He asked about his mother and she showed him a photograph of her. He was angry about Carol's rejection of him and the fact that she had given him away. Carmen Adams described Darren as "blonde with blue or green eyes". His mother, on the other hand, was "dark with noticeable Aboriginal features". She said that Walter's grandfather was a full blood aboriginal but Walter himself said he had never met him and did not know. She told Darren during his stay with them that his mother was of aboriginal blood. However she did not know if he was already aware of this.
On the Wouters' side statements were taken from Darren's grandmother, Maria Katherina Wouters, his aunt, Gebina Doyle and an uncle, Cornelius Wouters. Maria Wouters said she was aware that Darren's mother was of aboriginal descent and described her as being of light skin with dark frizzy hair. Darren was in her care as a baby for about nine months. Following an unsuccessful attempt by Mrs Wouters to obtain custody of Darren, he was taken into a State welfare home. She next saw him when he was 2 or 3 years old just after his father died in a motorcycle accident, but did not see him again until he was 8 or 9 years old and living in Brisbane in a foster home. Darren stayed with his grandmother in 1983 and was visited by Walter and Carmen. She said it would have been obvious to him that his mother's brother was of aboriginal descent but they had no discussion of his ancestry. She did recall however that he once looked at himself in a mirror and said he could not be aboriginal because of his silver blonde hair and pale skin. In 1984 he stayed with the Wouters for another 4 week holiday and in that time had day outings with Walter and Carmen's family. The next time Mrs Wouters saw him he was nearly 16 years old. He stayed with her for 4 weeks and at the Adams family for about three days. When he returned from the Adams he told her that the aboriginal community at Mt. Druitt was trying to get him a job. She said that he did not discuss his aboriginal relations with her. "He was proud of his Dutch descent and he seemed to want to learn more about his Dutch relatives". As far as Mrs Wouters could see he showed no interest in his aboriginal background and no interest in his mother. Apart from Carmen and her family he had no contact with the aboriginal community. In later correspondence he did not mention his aboriginal relatives.
His aunt, Gebina Doyle, saw Darren from time to time in his early childhood. She also saw him once when he was 13 years old and came to stay with her and her husband for about three weeks. There was another three week stay in the following year. During these times he did not discuss his aboriginal background although she believed "that he knew he had aboriginal blood". Like Mrs Wouters, she remembered him expressing pride in his Dutch ancestry. She knew he was "very proud of his Dutch background and the fact that he had blonde hair and fair complexion". His mother, Carol, had never disguised the fact that she was aboriginal. There was no discussion with her about bringing Darren up as a member of the aboriginal race.

Cornelius Wouters met Darren on one or two occasions when he stayed with his grandmother Maria. He went to the Easter show with Darren when he was 13 or 14 years old. Darren did not say much about being aboriginal, but liked to identify himself as Darren Adams or Darren Adams/Wouters.
An outline of Darren Wouters' life history emerged before Commissioner Wyvill from the statements of these and other witnesses who encountered him in institutional, employment or social settings. As already noted, he was born on 26 November 1969. Within two months of his birth he was placed in the care of welfare authorities in New South Wales following what was said to be an attempt by his mother to kill him. He was then placed with his grandmother for 9 months at Quakers Hill in Sydney. Litigation ensued on the question of custody and Darren was placed in what Maria Wouters described as a welfare home. He was intermittently in and out of the home and with his parents. His mother underwent psychiatric treatment from time to time. When he was 2 or 3 years old his father was killed in a motor cycle accident. His mother attempted to commit suicide on the same day and on a number of other occasions. She took him from a "welfare home" in Campbelltown, New South Wales and went to Queensland for a time. She maintained some contact with Gebina Doyle who looked after Darren one day when he was about 4 years old and noticed extensive bruising on his body while giving him a bath. Later his mother took him to Queensland again where she was said to have abandoned him. He had no further contact with her. There was some evidence that she may have been addicted to heroin. Darren was made the subject of a Care and Protection Order under the Queensland Department of Childrens Services. He was placed in a family group home in Brisbane and began seeing a potential foster family on a social contact basis. Eventually that family fostered him for some two and a half years. At the end of that time in June 1984 and following a breakdown in relations with the foster family, he was placed in Boystown, an institution operated by the De La Salle Order where he remained until November 1985. There he completed Years 9 and 10 at the Boystown school. From 1983 onwards he had intermittent contacts with members of the Wouters family and Walter and Carmen Adams which have already been referred to. But according to Lyndall Ferguson, a social worker at Boystown, he felt that he could not fit in with either group. During his last visit with Carmen Adams, Ferguson made contact with an aboriginal employment service on his behalf. She recalled speaking to an officer of that service who indicated that Darren was eligible for assistance under an aboriginal employment subsidy program. She was also told that accommodation could be arranged for him at an aboriginal hostel. Darren did not pursue this program. According to Ferguson, he was "struggling with his identity - with who he was and with where he came from, where he fitted in". In the last month or so of his time at Boystown he was, she said, mixing a lot more with the aboriginal boys. He was seeking them out. In a later statement this reduced to the observation that he had formed a close friendship with an aboriginal boy called Billy Power. Power's statement was also before the Commission. He said that he first met Darren at Boystown early in 1985 and when they left they both went to live at Tarragindi Lodge, also operated by the De La Salle Order, at Tarragindi. Darren told Power that he was part aboriginal. Power did not think that Darren was ashamed of that fact, but said he did not tell many people about it. Nor did he talk very much about it to Power. Paul Smith, the Director of Boystown, remembered Darren as a boy who kept very much to himself and did not form close friendships. He remembered him expressing an ambition to become a millionaire. After meeting relatives on his mother's side in 1985 and becoming aware (or perhaps being reminded) of his aboriginal descent he was, according to Smith, "confused as to his ethnic identity". Smith said that ". . . he made a boomerang and left it in his room and on occasions he could be seen standing while adopting a one legged stance". Although Darren talked occasionally about aborigines, Smith did not regard him as one and in his opinion Darren did not see himself as one either. Lyndall Ferguson reported that he had "toyed with suicide on a number of occasions". At age 12 or 13 he walked in front of a train, suffered severe internal injuries and lost a kidney.
In January 1987 he obtained employment as a storeman with a company called Absoe Business Equipment Pty Ltd. He was described by the Managing Director, Frederick Drake, as ". . . a quiet young person, pleasant natured and good mannered". However on 9 April his employment was terminated when he obtained a key to one of the company's outlets, broke into the building, took tools and unlawfully used the company vehicle. Drake believed Darren to be of European extraction. He had given no indication of any aboriginal background.
Shortly after leaving the employ of Absoe, Darren obtained casual employment at the New Farm Park kiosk at New Farm. After a time the kiosk proprietor, Doreen Nosworthy, allowed him to live in a caravan at the rear of the kiosk. This was about 2 months prior to his death. She remembered him as quiet and polite but never thought of him as part aboriginal and was surprised to learn that was the case. While working at the kiosk Darren struck up a friendship with Leeanne Trudy McGee, who was employed there as a part-time waitress. She said he was a good worker and took care with jobs he had to do. After they got to know each other, they used to take walks together around New Farm Park and explore buildings. They did not otherwise go out on a social basis. Darren, she said, was interested in finance and business and "the art of making money generally". By late August 1987 they had developed what she described as a brother/sister relationship. He would talk to her and seek advice from her. He said that he had been abandoned by his mother when he was very young and resented her for that. He also mentioned his father's family in New South Wales, but said he did not fit in with them nor they with him. He told her that his mother was aboriginal and his father Dutch. She was surprised to hear that as he did not look like an aboriginal. He said he did not know much about his mother's side of the family. He rarely talked about aboriginal people and so far as she was aware did not mix socially or identify with them. There was one occasion when he commented about young aboriginal people who drank themselves into the gutter and were slovenly, loud and abusive.
One morning towards the end of September, Miss McGee came to work and saw Darren wearing a bandage around his wrist. He told her he had cut himself accidentally. After some persuasion he showed her the wound which was deep and from which a tendon was protruding. When pressed he admitted he had cut himself deliberately. He agreed to let her take him to hospital, but when she went to tell another employee, a young man called Russell, where she was going he disappeared. Neither she nor Russell could locate him. That evening between 6 and 6.30 pm she found him in his caravan where he had evidently taken an overdose of some prescription pills. He was conscious but disoriented. Miss McGee and Russell took him to a hospital where he was admitted to the intensive care section and later that evening transferred to an ordinary ward. In conversation the next day he explained his action by saying "life's fucked" or words to that effect. He was later discharged on the basis that she would look after him.
Miss McGee became aware that he had a girlfriend called Daphne. He spoke of her in a derogatory manner and said she wanted to be with him, but he didn't want to be with her. On a number of occasions after the suicide attempt, he spoke of hanging himself and used such expressions as "life sucks" and "life is a bitch".
The evidence of the circumstances surrounding Darren Wouters' death so far as they appear from the statements before Commissioner Wyvill was sketchy. It seems however that he had been at a party at the kiosk and drove away from it on Russell's motor bike without using a helmet. He was stopped by police and given a breathalyser test. He was over the limit and was taken into custody. He was placed in a cell in the Brisbane Watchhouse. An hour later he was found dead, having apparently hanged himself.
The Commissioner's Ruling
On 1 September 1989 the Commissioner published a written ruling on the question whether he had "jurisdiction" to inquire into the death of Darren Wouters. He referred to the evidence summarised above and also, it seems, to records of the Department of Childrens Services which were not specifically tendered and which were not before the learned trial judge. This no doubt explains his ability to describe with greater precision than is possible from the material on the record, the dates and places of Darren's various placements and transfers while under Departmental care. Interestingly he dated Darren's discovery that he was of aboriginal descent from August/September 1985, although the inference was open that he knew from as early as 1983. In the event the Commissioner drew the following conclusions which he saw as having "a bearing on the question of jurisdiction":

1. Darren was of Aboriginal descent and had been aware of that from some time in the year 1985.

2. Darren told others that he was of Aboriginal descent. He appears to have given some thought to what it might mean to be an Aboriginal and probably explored his own feeling on the matter.

3. At no time did Darren deny that he was of Aboriginal descent. There is nothing to show that he ever contemplated either denying or avoiding acknowledging that he was of Aboriginal descent.

4. None of those people to whom he asserted that he was of Aboriginal descent challenged or attempted to refute his assertion.

5. Both the Aboriginal and non-Aboriginal sides of his family acknowledged that Darren was of Aboriginal descent. Neither side had sought to emphasise the advantages or disadvantages that might be associated with his recognition of Aboriginal ancestry.

6. While in Sydney with Carmen Adams, Darren identified himself to an Aboriginal welfare worker as being of Aboriginal descent and was so accepted by that welfare worker. On this occasion he was given to understand that because of his Aboriginal ancestry he was eligible to enter training schemes and Aboriginal Hostels open only to people of Aboriginal descent.

7. To identify as an Aboriginal to an organisation within the Aboriginal community here in Brisbane and to be recognised or accepted by such organisations Darren needed to do no more than claim to be and establish that he was of Aboriginal descent.

8. Had he wanted Darren could have sought assistance from, and would have been accepted as entitled to assistance by, Aboriginal organisations with the community in Queensland.

The Commissioner then went on to consider the meaning of the word "Aboriginal" in the context of the Letters Patent. There was nothing in that context, he said, to suggest that it bore other than its ordinary and natural meaning. However, while its original meaning was clear as a reference to people living in Australia before the arrival of the colonists, "the application of the term to individuals in modern Australia, who have a variety of genetic and cultural connections with the original people, can give rise to dispute".

He referred to definitions of the words "Aboriginal" and "Aborigine" in various statutes and the submissions by counsel assisting and counsel for the next-of-kin that jurisdiction was established upon proof of aboriginal ancestry. Counsel for the State of Queensland on the other hand had relied upon an observation by Deane J. in his discussion of the power to make special laws for the "people of any race" under s. 51 (xxvi) of the Constitution in the Commonwealth v State of Tasmania (1982-83) 46 ALR 625 at 817:

"The phrase is, in my view, apposite to refer to all Australian Aboriginals collectively. . . The phrase is also apposite to refer to any identifiable racial sub-group among Australian Aboriginals. By "Australian Aboriginal" I mean in accordance with what I understand to be the conventional meaning of the term, a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognized by the Aboriginal community as an Aboriginal."

He referred to the difficulties of this definition in the context of his inquiry and concluded 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 the Commissioner held that Darren Wouters was an aboriginal whose death in the Brisbane City Watchhouse on 15 November 1987 was within his terms of reference. He added a rider in the following terms:

"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."

The Trial Judge's Ruling

The learned trial judge referred to the Oxford Dictionary definition and the difficulties of proving aboriginal ancestry. There must be many people in Australia, his Honour said, with traces of aboriginal ancestry, the presence of which is unknown to them and undetected by others. And even if such trace ancestry were proven the person concerned would not ordinarily be called an Aboriginal. He referred to decisions of the High Court construing statutes in which the word was used, the dicta of Deane J. in Commonwealth v Tasmania (supra) and reports of Toohey J. sitting as Aboriginal Lands Commissioner under the Aboriginal Lands Right (Northern Territory) Act 1976. The latter emphasised a genetic criterion. Ordinary usage would not, in his Honour's opinion, justify the application of the term "aboriginal" to persons of any degree of aboriginal ancestry however slight. He concluded that the weight of authority was against the adoption of a "merely genetic" interpretation. Rejecting the approach adopted by Commissioner Wyvill, his Honour said:

"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."

His Honour then decided to enter upon the factual inquiry whether on proper tests Darren Wouters was an aboriginal. He was of the opinion that, having regard to the material before the Commissioner, the Court was in as good a position as he was to determine that issue. His Honour reviewed the evidence before the Commissioner. He found, inter alia, that "despite having light skin and blonde hair, Mr Wouters had a significant infusion of aboriginal genes". Nevertheless, after reviewing the evidence he concluded:

"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 Wouters."

The Jurisdiction of the Court in Relation to the Commonwealth Letters Patent

In relation to the Commonwealth Letters Patent the applicant relied upon the Administrative Decisions (Judicial Review) Act ("ADJR Act") as founding the jurisdiction of the Court to review the challenged ruling. In other cases which have involved the application of that Act to rulings made by Royal Commissioners, the question has arisen whether they constituted "decisions" reviewable under s. 5 or conduct engaged in for the purpose of making a decision and therefore open to review under s. 6. In Ross v Costigan (1982) 41 ALR 319, the Commissioner had rejected a submission that a certain line of inquiry was beyond his terms of reference. On an application for review Ellicott J. accepted that "a mere expression of opinion or a statement which can have no effect on a person" might not be a decision and that the ruling might arguably fall into that category. It was however at least conduct engaged in for the purpose of making decisions on such matters as whether a witness called to the Commission could be compelled to answer questions falling within the proposed line of inquiry. In Huston v Costigan (1982) 45 ALR 559, the Commissioner had decided to take evidence (albeit in camera) on the question whether a person had committed offences for which he had been charged. On a claim for interlocutory relief in an application brought under the ADJR Act, Toohey J. held that there had been a decision susceptible of review. The argument was advanced that the Commissioner had done no more than to decide to embark on a particular course of conduct for the purpose of carrying out the duties imposed on him by the Letters Patent. After referring to the observation of Fox J. in Evans v Friemann (1981) 35 ALR 428, contrasting the conclusiveness or finality of a decision with the thought or consideration that precedes it, his Honour said:

"While every determination made by the Commissioner on matters arising before him can hardly be described as decisions for the purposes of the Act, it seems to me that in the present case the course which the Commissioner has indicated with some precision he proposes to take is a decision made by him within the meaning of the Act."

The broad principles which have been developed by this Court since the enactment of the ADJR Act do not limit the class of reviewable decisions to those finally determining rights or obligations or having an ultimate and operative effect. Steps on the way to a final decision are included. Nor is it necessary that the determination directly affect legal rights or obligations so long as it has some real or practical effect. A provisional ruling or determination is also within the class provided it issues in some action or a refraining from some action. But a decision is more than thought, consideration or conclusion. It must be manifested in some way which emanates from an authoritative or responsible source. These propositions emerge from the judgments of the Court in Lamb v Moss (1983) 49 ALR 533 at 556; Director-General of Social Services v Hales (1983) 47 ALR 281; Squires v Attorney General (1986) 68 ALR 521 at 524; Evans v Friemann (supra) at 431; Ricegrowers Co-Operative Mills Ltd v Bannerman (1981) 38 ALR 535 at 544; Legal Aid Commission of Western Australia v Edwards (1982) 42 ALR 154; Huston v Costigan (supra) at 562.

The ruling in issue is, in one sense, no more than an expression of the Commissioner's opinion. It is an opinion formed upon evidence which although unchallenged, is not completely satisfactory and which may come to be seen in a different light as the inquiry proceeds. Nevertheless, even if regarded as provisional, it has real and practical consequences and will issue in action in the receipt and consideration of evidence relating to the death of Darren Wouters. It is more than mere thought or consideration or conclusion. It has been formally declared as an opinion formed for the purpose of the continuing conduct of the inquiry. Even without the application of the general criteria mentioned, it is caught by para 3(2)(e) of the ADJR Act which includes in the term decision" . . . a declaration . . . " and were all of the preceding incorrect it would nevertheless be conduct engaged in for the purpose of making a decision.
The ruling is clearly an administrative decision - Lockwood v The Commonwealth (1954) 90 CLR 177 at 181. In relation to the Letters Patent issued by the Commonwealth, it is made under an enactment. "Enactment" includes, for the purposes of the ADJR Act, an Act of the Commonwealth Parliament and "an instrument (including rules, regulations or by-laws) made under such an Act". The Letters Patent issued by the Governor-General were issued pursuant to the power conferred by s.1A of the Royal Commissions Act 1902. They constitute an instrument made under the Act and the ruling that Wouters was an aboriginal was a decision made pursuant to that instrument. It may not be in every case right to say that a decision made under an instrument which instrument is made under an enactment, is also a decision made under that enactment. In this case however, having regard to the powers conferred upon the Commissioner by the Royal Commission Act 1902 relating to the conduct of his inquiry, it is probably right to say that the ruling was also a decision and/or conduct for the purpose of making a decision under that Act.
Jurisdiction in Relation to State Letters Patent
Identification of the Commissioner's ruling as a decision to which the ADJR Act applies does not conclude the inquiry as to jurisdiction. To review the ruling under that Act is not necessarily to dispose of it for the purposes of the Queensland Letters Patent. These were expressed to be issued by the Governor of Queensland "acting by and with the advice of Our Executive Council of Our State of Queensland and in pursuance of the Commissions of Inquiry Act 1950-1987 and all other powers him thereunto enabling". But unlike the Royal Commissions Act 1902 (Cwth), the Commissions of Inquiry Act of 1950 (Qld) does not create a power to issue Letters Patent. Rather it regulates the conduct of the inquiries they authorise and confers incidental powers to require the attendance of witnesses and the production of documents and the like. This structure is reflected in sub-s.4(1) of the Act which provides that:

"4(1) Wherever a Commission of Inquiry is issued by the Governor by and with the advice of the Executive Council of this State under his hand and the Public Seal of the State, the provisions of this Act shall apply to and with respect to the inquiry."

Absent statutory authority to issue Letters Patent, there is nevertheless a long accepted capacity in the Crown to conduct inquiries. Its character was addressed in Clough v Leahy (1905) 2 CLR 139 at 156, where Griffith CJ (Barton and O'Connor JJ concurring) observed that "(t)he power of inquiry, of asking questions, is a power which every individual citizen possesses". It was not necessary, he said, to call in aid the prerogative powers. The power of inquiry was not "a prerogative right". It would follow from this view that a decision taken under a common law commission to inquire does not necessarily involve the exercise of any prerogative or statutory power. The decision was criticised by the New Zealand Court of Appeal in Cock v Attorney-General (1909) 28 NZLR 405 and in contemporary academic writings - Cobbett - The Power of the Crown to Appoint Commissions of Enquiry (1905) 2 Commonwealth Law Review 145 and Inglis Clark - Studies in Australian Constitutional Law (2nd Ed. 1905) pp 251-3. It was applied in Ex parte Walker (1924) SR (NSW) 604 and reaffirmed in McGuinness v Attorney-General (Vic) (1940) 63 CLR 73. But contrary to Griffith CJ, Dixon J. identified the non-statutory source of power to issue a Commission of Inquiry as "the prerogative of the Crown". In John and Waygood Ltd v Utah Australia Ltd (1963) VR 70 at 73, Sholl J. noted the divergence without further comment. The right of any person including the Crown to make inquiry was mentioned by Gillard J. with respect to Boards of Inquiry in Bretherton v Kaye and Winneke (1971) VR 111 at 114:

"The authority for such inquiries is to be found either in the prerogative of the Crown or the right of every person, including the Crown, to cause inquiries to be made on any subject whatsoever for its information."

The question was inconclusively discussed in Victoria v Australian Building Construction Employees and Builders Labourers Federation (1982) 152 CLR 25. Stephen J. supported the Griffith analogy and characterisation (at 68 and 69). Wilson J. accepted the analogy without characterising the power to inquire (at 124) as did Aickin J. by virtue of his partial concurrence in the judgment of Stephen J. (at 120). Mason and Brennan JJ appear to have rejected both the analogy and the characterisation (at 88-89 and 155).

The Full Court in Boath v Wyvill (1989) 85 ALR 621 considered the validity of Commissioner Wyvill's appointments under the Commonwealth Act and also under the Royal Commissions Act 1968 (WA). In each case there was express statutory authority for the issue of the Letters Patent. Their Honours there said that the Western Australian Act did no more than give the force of statute to the common law powers of the Crown to establish a Commission of Inquiry. The argument, which concerned the constitutional competence of the State to issue the Letters Patent, proceeded on the basis that if what was done were not authorised by the Statute it could not be supported as an exercise of the prerogative. It seems to have been assumed that the authority to issue the Letters Patent derived from the prerogative and was merely replicated by the statute.
The legal nature of the function exercised by the Commissioner under the Queensland Letters Patent determines the source of this Court's jurisdiction to deal with the ruling so far as it relates to the State Commission. That jurisdiction was not addressed at length by the parties. Counsel for the Attorney-General referred to Re Cram; Ex parte The Newcastle Wallsend Coal Co. Pty Ltd (1987) 163 CLR 141 and submitted that the Commissioner was, by virtue of his Commonwealth commission, an "officer of the Commonwealth" and as such subject to the jurisdiction of the Court under s.39B of the Judiciary Act 1903 in both his capacities. The High Court held in Re Cram that a person constituting the Coal Industry Tribunal established by Commonwealth and State laws, was an officer of the Commonwealth whether exercising functions under the Commonwealth or the State statutes. But that result was founded upon the conclusion that the Tribunal's authority to exercise powers under the State Act was derived by necessary implication from the Commonwealth Act. The Commonwealth Letters Patent issued to Mr Wyvill include a clause by which he is authorised to conduct his inquiry under the Letters Patent "in combination with any inquiry into the same or related matters" that he is directed or authorised to make by any of the Governors of the States or under the law of the Northern Territory. But unlike the position of the Coal Tribunal in Re Cram it is difficult to see how it can be said that the Commissioner has, in any sense, derived his authority to inquire under the Queensland Commission from the Commonwealth Letters Patent or their enabling statute.
The characterisation advanced by Griffith CJ in Clough v Leahy, although later doubted, has not been displaced. It is not necessary to invoke the prerogative in order to justify a decision to enquire. It is unlikely therefore that such a decision is an expression of prerogative power. That is not to say that it does not have legal significance for, in Queensland, the issue of Letters Patent will attract the statutory powers conferred by the Commissions of Inquiry Act of 1950. But these powers can only be exercised for purposes properly within the terms of reference. To the extent that a decision to inquire into a matter outside the scope of the Letters Patent constitutes or foreshadows a decision to exercise powers under the Statute, the implementation of that decision may be restrained by prohibition. Alternatively, declaratory relief may be available. If the issue of the Letters Patent is properly an exercise of prerogative power the position is if anything stronger, for the exercise of a delegated prerogative power may be reviewed in appropriate circumstances as may be the exercise of prerogative power itself - Minister for Arts Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218. In the present case, this is an exercise of the accrued jurisdiction for the claims relating to the Queensland Commission arose out of the one controversy and therefore the one "matter" of which the Court is seized.
The Meaning of "Aboriginal" in the Letters Patent
Public concern over the high incidence of aboriginal persons dying in police lockups and prisons led to the establishment in October 1987 of the Royal Commission then comprising the Honourable James Henry Muirhead QC to inquire into such deaths occurring since 1980. The subsequent issue of Commonwealth and State Letters Patent to a number of Commissioners in the various States has resulted in the constitution of a national inquiry of considerable scope and complexity. As the Full Court observed in Boath v Wyvill (supra) at 630:

"The Letters Patent form part of a comprehensive scheme involving the issue of a number of Letters Patent to several Commissioners with the existing Commissioner occupying a central position. The evident purpose of the scheme is to share amongst the several Commissioners the discharge of the heavy and complex responsibilities involved with ultimate control of the whole inquiry retained by the existing Commissioner."

As already noted, the terms of the "head" commissions now held by Mr Johnston QC require consideration of the social, cultural and legal factors which appear to have a bearing on the deaths under investigation.

The general subject matter of the inquiry and the specific reference to social, cultural and legal factors are not consistent with the establishment of rigid definitional boundaries within the terms of reference. In particular the characteristics, including social, cultural and legal circumstances, of persons who are said to answer the description "Aboriginal" will need to be considered. And that consideration could well involve some reflection upon characteristics by which membership of the aboriginal people of Australia can be defined or recognised. It is not overstating the position to say that, in a sense, the idea of what it is to be an aboriginal in contemporary Australia may be under inquiry.
The relevant meaning of the term used as a noun as it is in the Letters Patent is set out in the Oxford English Dictionary (1989) as:

"An original inhabitant of any land, now usually as distinguished from subsequent European colonists. Also spec. one of the aboriginal inhabitants of Australia."

The meaning so stated does not expressly extend to mixed blood descendants of the original inhabitants of this country although it has been so interpreted - Muramats v Commonwealth Electoral Officer (WA) (1923) 32 CLR 500 at 507 (Higgins J.). They are however caught by the Macquarie Dictionary definition under the alternative designation "aborigine":

"1. one of a race of tribal peoples, the earliest

inhabitants of Australia.

2. a descendant of those people, sometimes of

mixed blood.

3. the primitive inhabitants of a country; the

people living in a country at the earliest period."

In various statutory definitions of "Aboriginal" under Commonwealth and State law its application to descendants of the original inhabitants is apparent. Definitions in terms of membership of "the aboriginal race of Australia" appear in a number of recent Commonwealth statutes enacted in the last twenty years. The Racial Discrimination Act 1975 defines "Aboriginal" as "a person who is a descendant of an indigenous inhabitant of Australia but does not include a Torres Strait Islander". Definitions limited to descent appear in the Aboriginal Lands Act 1970 (Vic), The Aboriginal Affairs Planning Authority Act 1972 (WA) and subsequent Western Australian statutes. The Aboriginal Land Ordinance 1978 of the Northern Territory speaks in terms of membership of "the Aboriginal race" as does the Northern Territory Sacred Sites Act 1989. The Aboriginal Relics Act 1975 (Tas) provides that for the purposes of that Act "any person who has wholly or partly descended from the original inhabitants of Australia is a person of Aboriginal descent". The Aborigines Act 1971 (Qld) relies, in rather puzzling phraseology, upon descent from "an indigenous inhabitant of the Commonwealth of Australia", while the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld) refers more conventionally to a person who is a descendant of an indigenous inhabitant of Australia. So too does the Community Services (Aborigines) Act Amendment Act 1986 (Qld). New South Wales uses a tripartite definition in its Aboriginal Land Rights Act 1983 which provides:

""Aboriginal" means a person who-

(a) is a member of the Aboriginal race of Australia;

(b) identifies as an Aboriginal;

(c) is accepted by the Aboriginal community as an Aboriginal."

This definition reflects that adopted by Deane J. in the Tasmanian Dams case and an administrative definition said to be in use by the Commonwealth Government, although not generally reflected in its statutes. At the core of common statutory usage however is the concept of membership of "the Aboriginal race" or "descent from an indigenous inhabitant of Australia" as a necessary and sufficient criterion.

Higgins J. in Muramats (supra) found that the term "aboriginal", otherwise undefined, in the Electoral Act 1907 (WA) was intended to be used in its vernacular sense ascertained by asking - whom would Australians treat as such? His approach was endorsed by the High Court in Ofu-Koloi v R (1956) 96 CLR 172 at 175. And applying that test Higgins J. concluded after referring to the Oxford Dictionary that "those are aboriginals (for Australian Acts) who are of the stock that inhabited the land before the Europeans came to it". That statement must, of course, be seen as limited to the class of statutes then in existence which used the word according to its contemporary usage. In different contexts the class of persons covered by the word "Aboriginal" may expand or contract according to the purpose of the statute or instrument under consideration. The Court was referred to a number of cases from United States Courts which tend to illustrate that same point in relation to the word "Indian" made expressly in the judgment of the Supreme Court of Wyoming in Vialpando v State of Wyoming (1982) 640 P 2d 77 at 79:

"The definition of an "Indian" usually depends upon the purpose for which a distinction is made. As regards entitlement the definition of an Indian includes more people than for some other purposes."

In Re Bryning (1976) VR 100, Lush J. adopted a purposive approach in deciding against an interpretation of a testamentary gift "for the benefit of Aboriginal women in Victoria" which would limit its benefits to women of full-blood. When contrasted with the term "half-caste" in old statutes the word "aboriginal" was a reference to a full-blood person. But in more general use it had not had that meaning for many years:

"It must, I think, be remembered that this is a word that is probably much more widely used in this country than in other English-speaking countries. In this country it has certainly been used to describe persons in groups or societies irrespective of the question of mixture of blood. This view is supported by the consideration that for a long time it has been widely known that there remain very few persons of the full-blood."

In interpreting the will in issue, his Honour had regard to the obvious intention of the testatrix to benefit the women of a group or community generally regarded as in need of assistance.

Writing as Aboriginal Land Commissioner in his 1980 Report on the Uluru (Ayers Rock) National Park and Lake Amadeus/Luntja Land claim, Toohey J. cited this decision with approval. His Honour referred to the definition of aboriginal in the Aboriginal Land Rights (Northern Territory) Act in that Report and also in his 1981 Report on the Finnis River Land Claim. Membership of the aboriginal race was to be seen, for the purposes of that Act, as based on descent but not so as to exclude people of mixed racial origins:

"Membership of a race is something which is determined at birth and cannot in a sense be relinquished nor can it be entered into by someone lacking the necessary racial origin. It is unnecessary and unwise to lay down rigid criteria in advance. As situations arise in which the Aboriginality of claimants is put in issue, these situations can be looked at."

It is necessary to bear in mind that his Honour's remarks were directed to a particular statutory context and purpose relating to the identification of traditional aboriginal groups and their relationship to land under claim.

The evolving social perception of what constitutes membership of the group called by the word "aboriginal" and the varying contexts in which it may be used indicate the need for caution in applying interpretations adopted in one context and for one purpose to a different context or purpose. There is a helpful overview of the changing usage in the report of the Australian Law Reform Commission on "The Recognition of Aboriginal Customary Laws" as appears from paras 88 to 95. The development from early restrictive tests based on "quantum of blood" to the genetic and social indices propounded by Deane J. in the Tasmanian Dams case is outlined. But his Honour's definition in that case should not be seen as representing the contemporary content of the word "aboriginal" irrespective of context or purpose. Although expressed as the "conventional meaning" it was formulated in a discussion on the question whether laws for the protection of the aboriginal cultural heritage in Tasmania were within the constitutional meaning of laws with respect to "the people of any race" under s.51(xxvi) of the Commonwealth Constitution. It is not surprising that in that context emphasis should be placed upon elements of self-identification and communal recognition as well as the question of descent.
The inquiry entrusted to Commissioner Wyvill and his fellow Commissioners may give rise to questions about each of these factors. And within that framework there may be cases involving persons of aboriginal descent who, in life, did not identify themselves with and were not accepted as aboriginals by "the aboriginal community". Within that set of persons may be those who for whatever reason lacked any satisfactory sense of identity as either aboriginal or white and may never have been accepted as members of either "community". This may be particularly so with persons like Darren Wouters who have a significant aboriginal genetic heritage but may lack the physical indicia of aboriginal appearance. When there is added to that factor, as in this case, a history apparently devoid of opportunity for development within the normal range of parent/child relationships, then confusion as to identity and the absence of a sense of belonging to any particular community is not surprising. These observations are not made by way of speculation on the facts of this case, but as illustrative of the issues which might properly arise for consideration in the inquiry. To preempt as "jurisdictional facts" the issues of self-identification and communal acceptance or affiliation is to impose restrictions on the inquiry which its evident purpose and, in that context, the language of the Letters Patent, will not support. The approach taken by Deane J. may be understood as serving a broad concept of the constitutional power to make laws for the members of the aboriginal race. In terms, and as applied by his Honour the learned trial judge in this case however, it narrows the concept of aboriginal by adding two necessary conditions to that of descent.

For the purposes of the Letters Patent, the better view is that aboriginal descent is a sufficient criterion for classification as aboriginal. That proposition must be read subject to the right of the Commissioner to decline to inquire into a case where the aboriginal genetic heritage is so small as to be trivial or of no real significance in relation to the overall purpose of the Commission. It also leaves open the question whether a person with no aboriginal genetic heritage may be regarded as aboriginal by reason of self-identification and communal affilitation.
In this case the Commissioner found that Darren Wouters was of aboriginal descent and it was implicit in his finding and the evidence before him that the aboriginal genetic heritage was not insignificant or unrelated to the purposes of the inquiry. In the circumstances he appears to have applied the ordinary and natural meaning of the word in a usage which was appropriate to the context of his Letters Patent. There is no reason why his decision should be interfered with. The learned trial judge applied an approach which had behind it the highly persuasive authority of the observations of Deane J. in the Tasmanian Dams case. But the context of those observations and the purposes they serve do not translate to this case.
In the event and for these reasons the appeals should be allowed, the orders made by his Honour set aside and the application for review dismissed.