Obscure and Confused Notions of Aboriginality

A pragmatic argument against the entrenchment of the Voice in the Constitution concerns the inability, or unwillingness, of its proponents to define ‘Aboriginality’. Indeed, as the Voice is to consist of appointed ‘Aboriginal’ members, it becomes necessary to define the concept.

In reality, there is utter confusion as to who is to be regarded as  ‘Aboriginal’, how the twenty-four members of the Voice will be chosen, and what the powers of that ‘advisory’ body will be. Indeed, in Australia ‘Aboriginality’ seems to have developed into an amorphous, undefinable concept that has steadily been expanded to cover cultural traits that are different from the mainstream population. It has become an obscure and confused notion, an empty vessel the details of which need to be filled in by politicians, policymakers, and trendsetters. To this purpose, Senator Pauline Hanson attempted to introduce a bill, which would have clarified and changed the process of identifying as an ‘Indigenous’ person, but the majority of senators disallowed discussion of the bill.[1]

A definition, proposed in the 1980s, appears to be in the most use: An Aboriginal is a person of Aboriginal descent, who identifies as Aboriginal, and is accepted as such by the community in which they live.

The first part of this three-part definition requires a person to be of Aboriginal descent. However, this part does not stipulate the required percentage of ‘Aboriginality’ needed to prove a person’s Indigenous ancestry. In any event, satisfying this part has become increasingly difficult because of rhe 235 years of inter-marriage, which has steadily decreased the percentage of the ‘Aboriginal’ pool of genes and, consequently, it has eviscerated the concept of ‘Aboriginal’ descent.

The second part of the definition – self-identification – is a meaningless part of the test, amenable to corruptly and falsely claiming Indigenous heritage. The third part, community recognition, is not an objectively verifiable part of the definition and could easily be manipulated for political gain. Yet, the definition has been adopted by federal government departments for the purpose of determining access to Aboriginal-only services and benefits. In 1983, in Commonwealth v Tasmania (The Tasmanian Dam Case), Justice Deane of the High Court also used this definition when he said that “By ‘Australian Aboriginal’ I mean …a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognized by the Aboriginal community as an Aboriginal.”[2]

Some 870,000 people claimed on the 2021 census to be Aboriginal (3.2 per cent of the population), while there were only 106,000 in 1962 (approximately 1 per cent of the population of 10,742,291). In this context, Quadrant‘s Salvatore Babones, writing on the latest ABS statistics, comments that “Australia’s indigenous population increased by 73 per cent between the 2011 and 2021 censuses, implying a compound annual population growth rate of 5.6 per cent.”[3] This means that more and more people seek to trace their ancestry to an Aboriginal person under the first part of the definition and self-identify as Aboriginal under the second part of the definition. Some people may falsely self-identify as ‘Aboriginal’ to access benefits, which are only available to Aboriginals.  There is also anecdotal evidence that devious people might falsely self-identify as ‘Aboriginal’ to protest what they perceive is the growth of the ‘First Nations’ industry in Australia.

Nevertheless, the growth figure, mentioned by Babones, is astounding, and certainly surprising in view of the elevated level of migration to Australia in the period between 2011 and 2021 which, presumably, would have lowered the percentage of Aboriginals in Australian society overall. But Babbones claims that “If current trends continue, the Aboriginal and Torres Strait Islander population of Australia will overtake that of Australia as a whole within eighty years—at which point, everyone will be indigenous (and then some). That’s true even after accounting for Labor’s post-election decision to boost immigration after all. Big Australia will not be multicultural. It will be indigenous.”[4] Of course, Babones’ modelling may well be wrong because it never tends to develop exactly as the experts predict. This is illustrated by initial claims, supported by modelling, that the COVID-19 pandemic would result in the death of 150,000 people – a claim which proved to be an irresponsible exaggeration.

Babones has offered a compelling argument against the proposed entrenchment of the Voice in the Constitution. Indeed, if the predicted results of his modelling were to be correct, it would be useless, even irresponsible, to entrench the Voice in the Constitution because it would merely become a body that represent all (or most) of Australia and hence would effectively duplicate the work of the parliament. In this scenario, the Voice would operate as a shadow parliament that potentially or actually frustrates the legislative agenda of the parliament.

The ABS statistics provide another insight that makes the Voice a suspect proposal. In 2021, more than seven million people in Australia were born overseas. This represents approximately 30 per cent of Australia’s population, compared to 26 per cent in 2016. In addition, 49 per cent of Australians have a parent born overseas. Surely, their ancestors cannot have participated in discriminatory, Aboriginal-unfriendly practices of the past. Not only have they or their ancestors nothing to do with the settlement of Australia by the British in 1788, but these migrants  were lured to Australia because of its perceived commitment to freedom of thought, a free press, and equality of opportunity – a country that implements the principle of ‘political equality’ and ‘equal citizenship’. In these circumstances, why would they vote ‘Yes’ in the referendum?

The conclusion, that the demographics of Australia do not favour the proposed entrenchment of the Voice in the Constitution, is unavoidable and compelling.

Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University. In 2003, Moens was awarded the Australian Centenary Medal by the prime minister for services to education. He has taught extensively across Australia, Asia, Europe, and the United States. Moens has recently published two novels “A Twisted Choice” (2020) and “The Coincidence” (2021)

[1] Brittany Chain, ‘Pauline Hanson is brutally shut down when she attempts to introduce a Bill to Parliament to tighten up who can identify as Aboriginal: ‘Things could get messy’, Daily Mail, 11 May 2023, available at https://www.dailymail.co.uk/news/article-12070841/Who-claim-Aboriginal-Pauline-Hanson-clamp-false-heritage.html.

[2] 158 CLR 1 (1983).

[3] Salvatore Babones, ‘The Handy Malleability of Malinformation’, Quadrant Online, 7 July 2023, available at https://quadrant.org.au/magazine/2023/07/the-handy-malleability-of-malinformation/.

[4] Ibid.