The Trial of Andrew Bolt (I): Designer Ethnicity

Reynolds attacked the assault on O’Neill and proposed that, “This conference recognizes that the prerequisite of Aboriginality is cultural loyalty and not any false nineteenth century genetic theory.”

Aboriginal blood was not necessary to claim Aboriginality, and the cloudy response was no doubt practical for the purposes of resentment politics, though it would have made better history if the motion had been presented by one of the Aborigines in the local community. The seconder was simply listed as “Unidentified”.

Michael Connor, The Invention of Terra Nullius

The O’Neill in question was one Shorty O’Neill, a local north Queensland “Aboriginal” activist who was present at a meeting in Townsville in August 1981 when what historian Michael Connor called “one of the most important forums held in Australia” took place. The meeting was organised by the James Cook University Students’ Union and the Townsville Treaty Committee, and the topic of this three-day get-together was “Land Rights and the Future of Race Relations”.

The day before the meeting, Shorty O’Neill had presented an Aboriginal flag to Margaret Reynolds, a Townsville alderman and wife of historian Henry Reynolds. A few hours after the presentation, the Queensland Minister for Aboriginal and Islander Affairs, Kel Tomkins, got up in the Queensland Parliament and accused Shorty O’Neill of being a “criminal and a poseur”. According to Michael Connor, Tomkins also said O’Neill was really a former prison inmate named Lester Gordon Connolly who had earned his income:

as a professional Aborigine and yet it is more than doubtful that he had a degree of Aboriginal descent. Indeed, it is likely that Connolly is one of the “white fellas” who he constantly derides in the journal he edits.

Welcome to the world of “Who Do You Think You Are?” or, perhaps more correctly, to the world of “Who Would You Like To Be?” Better still, welcome to the world of Designer Ethnicity.

The trial of Andrew Bolt begins in Melbourne on December 13, 2010, with Justice Ray Finkelstein of the Federal Court presiding [UPDATE: The trial, now to be heard by Justice Bromberg, was adjourned until March 28, 2011]. Bolt is being sued for two articles he wrote for the Herald Sun last year. One article was headed: “Meet the white face of a new black race—the political Aborigine”.

To those unfamiliar with the cut and thrust of Aboriginal politics, it might come as a surprise that in Australia there are a set of laws, regulations and legal instruments to establish who is and who isn’t an Aboriginal person. These laws and regulations have nothing to do with what might be called a “traditional” Aboriginal person—generally recognisable by their appearance. These laws and regulations are specifically designed for people primarily of European descent, whose appearance and features are such as to cast no doubt as to their primary ethnic and cultural and “racial” background—which is European.

These laws are specifically designed to establish a person as “black” when from any casual observation they are what would normally be considered “white”. The thrust of the formula used to establish Aboriginality has three components—descent, self-belief, and acceptance by an Aboriginal group. All three are needed to pass the test. When a person of overwhelmingly European ancestry meets the above requirements they miraculously become Aboriginal. Andrew Bolt has challenged the extreme lengths to which the notion of designer ethnicity has been taken.

The trial of Andrew Bolt also highlights two interesting issues—the freedom of speech, thought and opinion in this country and the question of designer ethnicity. The first of these issues takes us back nearly two and a half thousand years, to the birth of Western thought. The second is a glimpse into the future, whereby a special group of people are being established, through bloodlines, or self-selection, as a sort of symbolic aristocracy—keepers of cultural symbols and beliefs that we (non-Aboriginal Australians) are neither allowed to know about, nor indeed be part of.

The motion that Henry Reynolds introduced at the Townsville meeting in 1981, that “the prerequisite of Aboriginality is cultural loyalty and not any false nineteenth-century genetic theory”, tried to demolish the idea that descent from an Aboriginal person—that is, a bloodline—was essential; “cultural loyalty” was, and should be, the deciding factor. This novel approach soon found itself in trouble in Tasmania, where the idea of bloodline was virtually the only criteria accepted by Tasmanian Aborigines. Indeed Tasmania was most likely the place where aspiring “Aboriginal” claimants were almost universally of obvious European appearance.

Twenty-two years after the divisive Reynolds motion in Townsville, Michael Connor recounts feathers flying at a writers’ festival in Hobart, when Tasmanian Aboriginal Doug Maynard challenged Tasmanian Aboriginal (and academic) Greg Lehman: “As for you Lehman, you’re not an Aborigine at all. You’re a fucking white man.” Connor continued:

Lehman claims with mathematical precision to be 1/64th Aborigine. Faced with this bizarre formula, author Nicholas Shakespeare wrote [in his 2004 book, In Tasmania], “How could someone who was 1/64th Aborigine—like, it appeared, most leaders in the Aboriginal community—choose this fraction of his ancestry over and above the rest?” Lehman explained to the English author that the remainder of his ancestry was “mongrel”.

The question that Andrew Bolt was posing was whether it is possible to discard one type of heritage and upbringing, and choose another. That “other” being not culture, belief and customs experienced before the family hearth, but something that you “discover” in later life, something that enhances your status and entitles you to benefits, benefits not generally available to others—others who do not have the bloodline, or the self-belief, or indeed the acceptance. It might also be considered to be status theft.

The extraordinary thing is that the very issues that Andrew Bolt was raising as a matter of public interest are virtually the very same questions that were raised in 2002 in a paper commissioned for the Commonwealth Parliament. That document is titled Defining Aboriginality in Australia. It was prepared and written by Dr John Gardiner-Garden. Dr Gardiner-Garden does not appear to have been taken to the Federal Court as a result of his work.

Dr Gardiner-Garden’s thirty-two-page report, which was commissioned by the Department of the Parliamentary Library and prepared for distribution to senators and members of the Commonwealth Parliament, states in its introduction the following:

The definition of Aboriginality has a long and contentious history in Australia. Different classification systems (many with significant personal and social consequences) have moved in and out of fashion. Even today, two very different definitions are concurrently in use. One, predominating in legislation, defines an Aboriginal as “a person who is a member of the Aboriginal race of Australia”. The other, predominating in program administration but also used in some legislation and court judgments, defines an Aboriginal as someone “who is a member of the Aboriginal race of Australia, identifies as an Aboriginal and is accepted by the Aboriginal community as an Aboriginal”.

There have been many problems with both of the currently used definitions. The “race” definition is somewhat tautological, and offers no indication of the sort of evidence or “blood-quotum” required to satisfy it, let alone any indication of how such evidence is to be collected and assessed. The three-part definition can also be problematic when it is unclear as to what constitutes a “member of the Aboriginal race”, when self-identity as an Aboriginal might not be all pervasive, and when the Aboriginality of the community doing the accepting is brought into question. As a result, in addition to much debate about which definition should be used and when, there has been much debate about how these definitions might be judged to be met, which criteria are the most important in satisfying the definition and who should do the arbitrating.

Dr Gardiner-Garden goes on to say that in the 1980s a new definition was proposed in the Constitutional Section of the Department of Aboriginal Affairs’ Report on a Review of the Administration of the Working Definition of Aboriginal and Torres Strait Islanders. It offered the following definition:

An Aboriginal or Torres Islander is a person of Aboriginal or Torres Islander descent who identifies as an Aboriginal or Torres Islander and is accepted as such by the community in which he (she) lives.

The interesting point about this definition is the last five words—in which he (she) lives. One interpretation of this might be that the said person “lives in a community” and not in some other community or as an isolated individual in some non-Aboriginal community. Later definitions alter the last five words to: accepted by the Aboriginal community. Is there such a thing?

Most Aboriginal groups rejoice in their own group’s individuality, and certainly not the idea that they are all “just Aborigines”. Indeed, letting some overall Aboriginal body decide who is a member of a specific group would never be accepted, as experience has shown during the 1998 “who is an Aborigine” punch-up in Tasmania. Even though there is no such thing as an Aboriginal “race”, the Commonwealth still used the definition of an “Aboriginal person” being a person of “the Aboriginal race of Australia”.

During the history of defining who is Aboriginal and who decides, the defining moment was most likely the acrimonious climax to the 1999 Aboriginal and Torres Strait Islander Commission election. Dr Gardiner-Garden, under the heading “The Crisis in Tasmania”, states:

The issue of the adequacy of the system of determining Aboriginality reached a head in Tasmania in 1999 when the result of that year’s ATSIC election was questioned on the grounds that many of the 824 voters and some of those who were elected were not in fact Aboriginals. Some also believed that the turn out of only 800 or so voters when 14,000 Tasmanians identified as indigenous in the 1996 census reflected a lack of confidence in the ATSIC poll procedure.

While the Tasmanian poll was being examined by a review panel, a vigorous debate ensued. As Dr Gardiner-Garden relates:

On one side were those suggesting that there were people identifying as indigenous people who were not. For example, Tasmanian historian and author, Cassandra Pybus claimed that four times more Tasmanians are claiming Aboriginal descent than can justify it, and that many of these are descendants of some five hundred black and coloured settlers and convicts transported to Van Diemen’s Land before 1850.

So what we are clearly talking about here is not colour of skin, or appearance, or self-belief, but “bloodlines”—and whether your bloodline is acceptable. So does that mean that a person could be descended from one of the five hundred black or coloured settlers—who perhaps, more than likely, partnered with a Tasmanian Aboriginal woman—but that person is not considered of Aboriginal descent? Pybus makes no distinction here—just that they had possibly one black ancestor who was a non-Aboriginal black.

Not to be outdone, Michael Mansell of the Tasmanian Aboriginal Centre (TAC) claimed that the bulk of those falsely claiming to be Aboriginal were from the Hobart area. Location! Location! Those unfamiliar with Tasmanian Aboriginal politics would be unaware of the north–south Tasmanian divide, and the resulting indigenous snarling that exists whenever the twain meet.

Mansell also demanded a system whereby people would have to prove they were eligible to vote in the ATSIC elections, claiming that the “documentary evidence” was at hand. Presumably that would be white-man evidence? The State Archivist, Ian Pearce, joined the fray by pointing out that “the records” don’t show any particular person is of Aboriginal descent, now or in the past. This, apparently, made it difficult to prove Aboriginal descent or indeed disprove it.

The Tasmanian issue became serious when the TAC, the main operator of Aboriginal services in Tasmania, began putting more emphasis on evidence of descent and reassessing eligibility for services based on more stringent requirements than those that had been imposed for the issue of earlier “Certificates of Aboriginality”. Yes, there are such documents.

According to Dr Gardiner-Garden’s report, the TAC started to refuse to allow certain children to continue to attend the Aboriginal Community School in Hobart or access after-school services and extra tuition and started to deny other indigenous-identifying individuals access to legal services. This prompted the Tasmanian office of ATSIC to commission Koori Consultants to prepare a report into how the three criteria in the widely used Commonwealth definition could be applied in Tasmania.

The Koori Consultants report found that an individual seeking to identify as an Aborigine ought to be able to satisfy all three criteria (descent, self-belief and community acceptance) and that when it came to proving Aboriginal descent, authentic documentary evidence should be provided to show a direct line of ancestry through a known family name, from traditional Aboriginal society, at the time of colonisation.

The catch with this was that there were not that many “known family names”. Opponents of this ploy claimed that TAC leaders simply wanted Aboriginality to be a monopoly of a few prominent Aboriginal families.

An additional problem was that it wasn’t only government departments that couldn’t settle on Aboriginality criteria—Federal and High Court judges were finding it difficult too. The Federal Court, in a first ever decision of its type, found that the Royal Commission into Aboriginal Deaths in Custody had no jurisdiction to inquire into the death of Darren Wouters, as the community did not identify him as Aboriginal nor did he identify himself as Aboriginal. But obviously someone did?

Several of the Justices in The Commonwealth of Australia v Tasmania (1983 158 CLR1) observed that there are several components to “racial” identity and that descent was only one such component. Justice Brennan concluded: “while proof of descent or lack of descent could confirm or contradict an assertion or claim of membership of a race, descent alone does not ordinarily exhaust the characteristics of a racial group” (my italics). Just what Justice Brennan was alluding to in latter part of the above sentence is unclear, and not explained in Gardiner-Garden’s report.

In 2002 the Minister for Immigration and Multicultural Affairs and Indigenous Affairs, Philip Ruddock, announced a trial of an indigenous roll of Tasmanian Aboriginal people who would be eligible to vote at the ATSIC Regional Council elections. Objections were lodged against nearly 90 per cent of the “Aboriginal” people who had applied to be put on the roll. Apparently 1298 people had applied to be placed on the roll and 2572 objections were received against nearly 1100 of them. Eventually 621 were accepted and 587 rejected.

The Independent Indigenous Advisory Committee then hatched a plan for DNA testing of claimants to Aboriginal descent, to support their claims, by submitting specimens from claimants for DNA analysis by the University of Arizona. Pressure was placed on the university to stop doing the testing and the plan was ultimately dropped.

The above short overview suggests that Andrew Bolt is no orphan when entering the debate over Aboriginality. So it might be presumed that his legal difficulties are not in this area. This then, to some degree, suggests that the issue is whether you can choose which “bloodline” (Aboriginal, European, Oriental, Asian, Pacific Islander, African …) is to be your ancestry of choice.

If this question of identity is limited simply to cultural, religious or lifestyle issues or if the need to be identified as belonging to some group or other is a person’s individual choice, then that decision is nobody else’s business but that of the individual and the group which that person wishes to join. Where it becomes a matter of public interest is when the choice to become part of an indigenous group entitles you to special status and special benefits, and places you in a class of Australian citizenship over and above other Australian citizens. If Cassandra Pybus was correct in 1999, and there are four times too many people claiming to be Aboriginal in Tasmania alone, then what exactly is going on?

Until recently, certain truths were considered, in this country, to be self-evident. One was the notion that any person born in Australia was an Australian citizen. Another was that this was a country that had shrugged off, from its conception, the idea of an aristocracy or the notion of a privileged elite. The idea that some citizens could hold special rights, other than property handed down to them, was generally thought to be repellent.

Les Murray once made the comment, when asked about Aboriginality during a film interview, “that some time in the future all Australians will be Creole”. It can be presumed that what he meant was that the mix of the multitude of ethnic and racial groups which make up the population of Australia will be such that, in time, the notion of being of Aboriginal descent or of European “stock” will no longer be an issue. At present this appears to be a forlorn wish.

The historical reason that this country has two recognised “peoples” is that one group, the Aboriginal people, were in such a desperate state of both dispossession and poverty, that in the 1850s efforts were begun to do something about this issue. Initially, the separation of status arose from a need to solve a humanitarian crisis. George Augustus Robinson thought he could solve the issue of black–white conflict, both in Tasmania and Victoria. Generally speaking his notions and methods became the norm—separation. They failed miserably.

Before this time, Aborigines, British settlers and native-born white Australians were all legally British subjects and equal before the law—British law. Just how some colonial people understood and accepted that idea is not the issue at hand. The nineteenth-century notion of Aboriginal protectionism was a change in white social attitudes, and never deprived Aboriginals of their status as British subjects. Aborigines were treated and regarded as separate from the growing mix of British, European and Australian-born citizens living in the Australian colonies from this mainly humanitarian, if misguided, paternal attitude, if judged only from today’s standards. Laws emerged that were enacted specifically to cover Aboriginal people as a separate group, not to create a problem but to solve one.

The great Aboriginal campaigns of the twentieth century, whereby Aboriginal people were demanding and fighting for equal rights, have been reasonably successful, but have failed to remove the concept that Aboriginal Australians are a particular, separate entity. This entity has now gained most of its aspirations, but without forfeiting the special status introduced in the nineteenth century. Today the emphasis by Aboriginal activists has moved from “human rights” to “special privileges”.

Anyone considering designer ethnicity has to overcome a few hurdles when designing their chosen ethnic identity. Logically, a close examination of their family history is necessary. A person has two parents, four grandparents, eight great-grandparents, sixteen great-great-grandparents, thirty-two great-great-great-grandparents, sixty-four great-great-great-great-grandparents and 128 great-great-great-great-great-grandparents. That is utilising seven generations, a distinct possibility if one is looking back to the First Fleet.

When the physical evidence is not obvious, claiming Aboriginality would necessitate the examination of your family tree, involving possibly the ethnic background of 128 ancestors, and possibly the rejection of up to 127 of them. How credible is a claim of “Aboriginality”, using the bloodline aspect, if your “Aboriginality” represents a possible 1/128th of your genetic make-up? Why stop at 128 if bloodline, or more scientifically, a DNA marker, is the deciding factor? What is the cut-off point? Is there one? Who decides?

Again, it should be remembered that the whole issue of Aboriginal certification only applies to people of mixed ethnic parentage. Which means that the establishment of a set of criteria to overcome the problem of the perception that a person isn’t an Aboriginal, comes from the physical appearance of that person—the very question on which Bolt is before the court for raising. Presumably full-blood Aborigines need no Certificate of Aboriginality. Or do they?

John Izzard is a frequent contributor to Quadrant and Quadrant Online.

See also:

“The Trial of Andrew Bolt (II): Real Aborigines versus Phoneys” by Keith Windschuttle here…