Law, Identity and Dispossession — the Half-Caste Act of 1886 and Contemporary Legal Definitions of Indigeneity in Australia

As Aboriginal and Torres Strait Islander Social Justice Commissioner Michael Dodson stated in his 1994 Wentworth lecture, ‘[s]ince first contact with the colonisers of this country, Aboriginal and Torres Strait Islander people have been the object of a continual flow of commentary and classification. Since their first intrusive gaze, colonising cultures have had a preoccupation with observing, analysing, studying, classifying and labelling Aborigines and Aboriginality.1 In the previous chapters, dispossession has largely been seen in terms of land. This book is also fundamentally about self-identity and the refusal of settler governments to recognize the way that people define themselves. This refusal has material repercussions of various kinds, most acutely the loss of land. In this chapter, we address another dispossession, that of the right to self-identity, examining the role of colonial legal definitions in this dispossession. The colonial preoccupation with defining Aboriginal identity in legislation is evident in the number of laws containing definitions of Aboriginal persons.2 Since the arrival of the British in Australia in 1788 colonial and, after Federation in 1901, State and Federal governments have enacted over 70 separate pieces of legislation containing definitions of Indigeneity.3 The purpose of these definitions has almost invariably been for the management and assimilation of Aboriginal people.