Peters, Vincent G. --- "G.W. Clarke v R" [1994] AboriginalLawB 8; (1994) 3(66) Aboriginal Law Bulletin 13

• G.w. Clarke V R

---

G.W. Clarke v R

County Court of Victoria, Coran Ostrowski J

12 October 1992, Unreported

by Vincent G. Peters

This was an Appeal by Geofrey Clarke against conviction in the Magistrates' Court in October 1992 on six counts of failing to complete a census form.

The Appellant had been charged under Section 14 of the Census & Statistics Act 1905 (Cth) for failing to complete a census form on six occasions in 1992: January 13, 20 and 27, and February 3, 10 and 17. On 12 October 1992 at Warmambool Magistrates' Court the Appellant was convicted and fined $80-00 on each charge plus costs of $240-00. This was an appeal against conviction and sentence. The appeal was a hearing de nova and the evidence given for the prosecution was from the officer in charge of the Police Station at Warrnambool who testified as to service. A Population Census Officer from the Australian Bureau of Statistics in Melbourne also testified. The evidence of the latter witness was that the Bureau had embarked upon a substantial public relations exercise surrounding the census. Approximately 10,000 people in Victoria were hired for the purposes of distributing and retrieving census forms. In addition, there was one Aboriginal Liaison Officer appointed for Victoria. His job was to educate and to gain the co-operation of Aboriginal people to complete the census form. He was to see the Elders of various communities and the people in charge. The Aboriginal Special Liaison Officer who became the Aboriginal Special Collector made a report to the Bureau that he did not visit the Framlingham area although he was aware that people had not complied with the requirement to complete the census. He wrote a report to the Bureau as to why he did not visit Framlingham.

Under cross examination the Population Census Officer confirmed that as far as he was aware, the framing of the Census did not take account of Aboriginal customs. He was not aware but did not believe that there had been any input from Aboriginal people or culture into the framing of the census questions. In addition, he gave evidence to the effect that he was aware that a number of Aboriginal people, particularly in the Framlingham area did not comply with the requirement to complete the Census. He further gave evidence that not all of those persons were prosecuted and in fact the Appellant in this case was the only person prosecuted. He gave evidence to the effect that the only persons who were prosecuted were those "open eyed objectors". He agreed that the prosecution was selective.

As a basis for the prosecution he testified to certified letters being sent to the Appellant which were returned to the Bureau unopened and marked "not wanted" or "return to sender". A deadline was set - 13 January 1992 - for the Appellant to comply with the direction to fill out the census. A check was made on that date and on the subsequent dates of 20 and 27 January, and 3, 10 and 17 February 1992 to see whether or not the Appellant had complied. As he hadn't, charges were laid with respect to each of those dates. The Appellant gave evidence which, in effect, was that the census form itself was offensive to him as an Aborigine. The Appellant stated that the framing of the census questions were completely insensitive to Aboriginal culture. He gave instances where it may not have been appropriate for him to be head of a household or to be able to speak for other people in his household. In addition, even the very first question such as completion of full name could at times be offensive when someone of the same or similar name have passed away and therefore the name could not be used. This is certainly the case in Central Australia with the Pitjantjatjara people who become "kunmunara" when one of their people of a similar or same name passes away.

It was argued by the prosecution that the Act was a valid Act pursuant to the Constitution and further that any Act of the Commonwealth bound Aborigines. In addition, the prosecution argued that the Appellant's behaviour did not constitute reasonable excuse under s14(i) of the Act. Various cases relating to the Electoral Act were cited.

Prosecution also relied upon the case of Walden v Hensler [1987] HCA 54; (1987) 75 ALR 173. This was an appeal by an Aborigine who had been prosecuted by the Fauna and Conservation Act 1974-1979 (Qld) for hunting in a National Park. The Appellant had claimed an honest claim of right in that he was merely exercising his traditional hunting rights. The High Court however held that "the defence of what was done in the honest exercise of ownership or traditional hunting rights amounts to no more than an assertion that the accused was unaware that the relevant criminal law applied to outlaw particular exercise of ownership or traditional hunting rights".

The Appellant argued that if a law is offensive to Aboriginal people or culture then Aboriginal people should not be bound by it and therefore it would constitute a reasonable excuse pursuant to s14(i). It was put on behalf of the Appellant that if the census is offensive to Aboriginal people or culture then Aboriginal people should not be bound to answer it and therefore it would constitute a reasonable excuse pursuant to s14(i). It was put on behalf of the Appellant that there are instances which have occurred in the Court circuit which travels through the Pitjantjatjara lands in the north west of South Australia every two months where it can be demonstrated that Aboriginal custom or law will take precedence over statute. It was put on behalf of the Appellant that Aboriginal custom should take precedence over the Census and Statistics Act if the Act was offensive to Aboriginal Culture. It was put that s14(i) afforded Aboriginal people the right to not participate.

After a lengthy debate on the issue His Honour found that he could not accept this argument. He said that no Warrant for such acceptance was found either in the Act or the General Law. His Honour felt bound by the case of Walden v Hensler and thus the Act being validly passed should not and did not treat any other group separately and applied equally to all persons. He found that on the balance of probabilities, no reasonable excuse could be shown.

There was then argument put forward with respect to the multiple convictions. It was put on behalf of the Appellant that to succeed on subsequent charges there must have been a conviction. His Honour agreed and accordingly, the Appeal on convictions 2-5 was upheld.

Argument was put to His Honour in relation to penalty and on the Appellant's behalf it was argued that for the offence to attract the maximum fine it would need to have been seen in its worst light. In addition, it was pointed out that the Appellant was not the only person at Framlingham who had failed to fill out the census but that he had been the only one prosecuted.

His Honour dealt with it on the basis that the Appellant being a community leader was the appropriate person to have been charged. His Honour however found that the Appellant took a moral and proper view and was therefore not required to shoulder a sanction more heavy than was appropriate to the offence. The intent of the offence was at about the half way mark and accordingly, he imposed a fine of $50.

The formal Orders made were as follows:-

1. All Orders at the Magistrates' Court made on 12 October 1992 be set aside.

2. On charge 1 of failure to fill out the census form on 13 January 1992 the Appellant was convicted and fined $50 with $240 costs.

3. All other charges were dismissed.

It is interesting to note that the main question before His Honour was as follows:-

"If a law or requirement is drafted without any consultation with Aboriginal people and and which law or requirement offends Aboriginal tradition, should Aboriginal people be reasonably excused from compliance with the law or the requirement?"

This question was put specifically in relation to completion of the census form. It would seem that in Central Australia it may well be held that many questions in the census are offensive and objectionable.