Opinion Number. 1729

Subject

PENSION ELIGIBILITY OF TORRES STRAIT ISLANDERS

Key Legislation

INVALID AND OLD-AGE PENSIONS ACT 1908–1943 ss 16, 21(1): WIDOWS’ PENSIONS ACT 1942–1943 ss 6, 14 : MATERNITY ALLOWANCE ACT 1912–1943 s 6(2): ABORIGINALS PRESERVATION AND PROTECTION ACT 1939 (Qld) ss 4, 5(2), 5(3): TORRES STRAIT ISLANDERS ACT 1939 (Qld)

Date
Client
The Commissioner of Pensions

The Commissioner of Pensions has forwarded the following memoranda to me for advice:

Memorandum No. 1

  • Sub-section (1) of section 16 of the Invalid and Old-age Pensions Act provides, inter alia, that ‘aboriginal natives of Australia’ shall not be qualified to receive an old-age pension. Sub-section (1A) of this section, which was inserted by Act No. 3 of 1942, provides that this disqualification shall not apply to an aboriginal native of Australia:
  1. who is for the time being exempt from the provisions of the law of the state or Territory of the Commonwealth in which he resides relating to the control of aboriginal natives; or
  2. who resides in a State or Territory of the Commonwealth the law of which does not make provision for such exemption, and with respect to whom the Commissioner is satisfied that, by reason of the character, standard of intelligence and development of the aboriginal native, it is desirable that the last preceding sub-section should not apply to him.
  1. The Queensland Aboriginals Preservation and Protection Act makes provision for the grant of exemption–vide section 5(3). The position, therefore, is that only those aboriginal natives of Australia residing in Queensland who have been granted exemption are eligible for old-age pensions.
  2. Difficulty has arisen in determining the eligibility of aboriginal natives of the Torres Strait Islands. In this regard I would invite attention to the Assistant Crown Solicitor’s opinion of 10th February 1938 (No. 16/1938)(2) to the effect that the Torres Strait Islands are a part of Australia and the native women of those islands are aboriginal natives of Australia within the meaning of the Maternity Allowance Act.
  3. A Torres Strait Islander is not deemed to be an ‘aboriginal’ within the meaning of the Aboriginals Preservation and Protection Act unless he is residing on a ‘reserve’–vide proviso to section 5(2) and definition of ‘islander’ in section 4. Consequently, the provision for the grant of exemption in section 5(3) is inapplicable so far as Torres Strait Islanders are concerned unless they are residing on a reserve, i. e. a reserve set apart for ‘aboriginals’ within the meaning of that Act.
  4. The Torres Strait Islanders Act of 1939 does not make any provision for the grant of exemption similar to that contained in section 5(3) of the Aboriginals Preservation and Protection Act. In this regard the Deputy Director of Native affairs of Queensland states:
  5. The Queensland Government by legislation has created a special status far these people as shown in The Torres Strait Islanders Act. It will be seen that there is no provision for their exemption from such Act, but they are given the right to an extensive degree of self-government which allows them to elect their own Councillors and appoint their own Island Police. The elected Council has the right to levy taxes and determine the disbursement of such. This brief summary will indicate the State Government’s recognition of the standard of intelligence, character and development generally of the island race.

  6. I shall be glad if you will kindly furnish me with advice on the following questions:
    1. In view of the fact that Torres Strait Islanders (not residing on a reserve) have been excluded from the operation of the Aboriginals Preservation and Protection Act, may such islanders be regarded as eligible for pensions under sub-paragraph (1) of paragraph (a) of section 16(1A) of the Invalid and Old-age Pensions Act?
    2. If the answer to question (1) is in the negative and in the absence of any provision for exception in The Torres Strait Islanders Act of 1939, should the eligibility of such islanders for pension be determined under sub-paragraph (ii) of paragraph (a) of section 16(lA) of the Invalid and Old-age Pensions Act?

Memorandum No. 2

  • Sections 16(1) and 21(1) of the Invalid and Old-age Pensions Act 1908–1942 and section 14(1) of the Widows’ Pensions Act 1943 provide that pensions shall not be granted to aboriginal natives of Australia, Africa, the Islands of the Pacific, or New Zealand. Section 6(2) of the Maternity Allowance Act 1912–1943 excludes aboriginal natives of Australia, Papua, or the islands of the Pacific.
  1. Claims under the abovementioned Acts have been received from persons of mixed blood born in the Torres Strait Islands. The parentage of the claimants is shown hereunder.
  2. [Applicant A]: Claimant for Invalid Pension

    Father. Half Torres Strait Islander and half New Guinea native.

    Mother. Half South Sea Islander and half Australian aboriginal.

    [Applicant B]: Claimant for Widow’s Pension

    Father. Samoan (full blood).

    Mother. Torres Strait Islander (full blood).

    [Applicant C]: Claimant for Maternity Allowance

    Father. The son of a half-caste European Samoan father and a Torres Strait Islander (full blood).

    Mother. Torres Strait Islander (full blood).

  3. Will you kindly advise whether these claimants are qualified to receive pension or maternity allowance benefits, provided they are otherwise eligible. In this connection reference might be made to the Assistant Crown Solicitor’s opinion of 10th February 1938 (No. 16/1938) relating to the eligibility of Torres Strait Islanders under the Maternity Allowance Act.
  4. It may be added that it is the practice of this Department to regard as an ‘aboriginal native of Australia’ any person in whom Australian aboriginal blood preponderates. This practice is based on the opinion given by Attorney-General Isaacs on 2nd October 1905 (copy attached).(3)

The relevant sections of the Commonwealth Acts concerned are, as far as is material, as follows:

Invalid and Old-age Pensions Act 1908–1943, section 16:

16. (l) The following persons shall not be qualified to receive an old-age pension, namely:

(a) Aliens;

(c) Asiatics (except those who are British subjects), or aboriginal natives of Australia, Africa, the Islands of the Pacific or New Zealand.

...

(1A) Nothing in the last preceding sub-section shall apply to:

  1. an aboriginal native of Australia:
    1. who is for the time being exempt from the provisions of the law of the State or Territory of the Commonwealth in which he resides relating to the control of aboriginal natives; or
    2. who resides in a State or Territory of the Commonwealth the law of which does not make provision for such exemption, and with respect to whom the Commissioner is satisfied that, by reason of the character, standard of intelligence and development of the aboriginal native, it is desirable that the last preceding sub-section should not apply to him; or
  2. an aboriginal native of an Island of the Pacific known as a ‘kanaka’.

Section 21(1) of the Act, which applies in respect of invalid pensions, is substantially the same.

Widows’ Pensions Act 1942–1943, section 14:

14. (1) A pension shall not be granted to a widow:

(f) if she is an aboriginal native of Africa, the Islands of the Pacific or New Zealand; or

(g) if she is an aboriginal native of Australia.

...

(5) Paragraph (g) of sub-section (1.) of this section shall not apply to an aboriginal native of Australia:

  1. who is for the time being exempt from the provisions of the law of the State or Territory of the Commonwealth in which she resides relating to the control of aboriginal natives; or
  2. who resides in a State or Territory of the Commonwealth the law of which does not make provision for such exemption, and with respect to whom the Commissioner is satisfied that, by reason of the character, standard of intelligence and development of the aboriginal native, it is desirable that that paragraph should not apply to her.

Maternity Allowance Act 1912–1943, section 6:

6.

  1. The maternity allowance shall be payable only to women who are inhabitants of the Commonwealth or who intend to settle therein.
  2. Women who are aliens or who are aboriginal natives of Australia, Papua, or the islands of the Pacific shall not be paid a maternity allowance …

Subsection (2A) is similar to subsection (5) of section 14 of the Widows’ Pensions Act.

The relevant provisions of Queensland law are sufficiently referred to in the first memorandum quoted above.

For the purposes of this Opinion I accept the view of the Assistant Crown Solicitor in Opinion No. 16 of 1938 that natives of the Torres Strait Islands are aboriginal natives of Australia within the meaning of the Maternity Allowance Act. The same applies to the term ‘aboriginal natives of Australia’ in the Invalid and Old-age Pensions Act and the Widows’ Pensions Act.

Dealing first with memorandum No. 1, section 5(3) of the Aboriginals’ Preservation and Protection Act 1939 makes provision for the exemption of aboriginal natives from the provisions of that Act. Section 5(2) provides, however, that a Torres Strait Islander shall not be deemed to be an ‘aboriginal’ within the meaning of the Act unless he is residing in a reserve.

In my opinion, the effect of section 5(2) of the Act is to exempt Torres Strait Islanders from the provisions of that Act unless they are residing on a reserve. Consequently Torres Strait Islanders who are not residing on a reserve come within the provisions of subparagraph (i) of paragraph (a) of subsection (1A) of section 16 of the Invalid and Old-age Pensions Act 1906–1943, and question (1) submitted by the Commissioner of Pensions should be answered in the affirmative.

With regard to memorandum No. 2, it appears that, in each of the cases submitted, both of the parents of the claimant are persons who are included in a class of aboriginal natives who are not qualified to receive pensions or other benefits under the relevant Acts unless they can bring themselves within the exemption provisions.

In my opinion, therefore, none of the claimants is entitled to receive a pension or benefits under those Acts on the ground that she is not an aboriginal native. If, however, she is not residing on a reserve, the exemption provisions of the Commonwealth Acts in question apply and each claimant is eligible as being a person who is for the time being exempt from the provisions of the law of the State or Territory in which she resides relating to the control of aboriginal natives. The same position would, of course, exist if the persons in question were residing on a reserve and exemption had been granted to them under the provisions of section 5(3) of the Aboriginals Preservation and Protection Act 1939 of the State.

[Vol. 36, p. 32]

(1) This date is attributed. The date in the Opinion Book is obscured, but its position in relation to adjacent opinions suggests it was written in early February 1944.

(2) Opinion not found.

(3) Opinion [Vol. 5, p. 77] not published.