Before we even begin to consider the concept of an Aboriginal and Torres Strait Islander Voice, it is imperative that the government provides a clear, precise and irreversible definition of what constitutes an Aboriginal for the proposed constitutional amendment to have legal certainty. Without this definition, we cannot support the initiative and must vote against it.

​

The concept of race implies that humanity is divided into distinct groups based on inherent physical and behavioural differences. However, the Aboriginal people are no longer a distinct race due to significant crossbreeding and cultural exchange, and many individuals who identify as Aboriginal do not share the inherited physical characteristics of the original Aboriginal race. 

​

The Aboriginal now appears to be a collective of people that vary from racially Aboriginal, to distant or very distant descendants of the original inhabitants of the continent and in all likelihood do not practice any traditional/animistic Aboriginal rites or practices.

​

The amendment will relate to an ill-defined subset of Australian citizens as a separate group of people of aboriginal descent who live as free as any other Australian - free to pursue whatever life they desire within the broad bounds of Australian law.

​

When Australian citizens vote at elections – we can vote because we are on the electoral roll. We get on that roll by 2 methods:

a) a certificate from births deaths and marriages that you are an Australian citizen;

b) a citizenship certificate as a result of a naturalisation ceremony/process.

It is simply legally factual/certain whether you are a citizen or not. There is NO ambiguity as to who is entitled to Vote.

If the constitutional amendment for the Voice is approved, "Aboriginals" will be designated as a distinct category of citizens within Australia for the specific purposes of voting or standing for the Voice.

​

In his analysis of over 700 pieces of legislation, the legal historian John McCorquodale found no less than 67 different definitions of Aboriginal people.  It is essential that any definition of an Aboriginal must be included and defined within the Constitution for legal certainty.  This prevents future governments from changing the definition – for example to “full blood” only and there would be less than 12,000 Aboriginals being represented by the Voice.

​

Much of Aboriginal-related legislation currently relies on a 3-part definition.  An Aboriginal person means a person who:

​

(a) Is a member of the Aboriginal race of Australia; and.

 

(b) Identifies as an Aboriginal person; and.

 

(c) Is accepted by the Aboriginal community as an Aboriginal person.

 

But even the High Court has advised that this definition can expand and contract depending on circumstances. 

​

If this definition continues to be used – it is critical that is legally verifiable.  Critics may label the idea as racially discriminatory, but it is essential for individuals to establish their legal Aboriginal identity since the Voice is a body that that enshrines that identity. It is crucial to ensure legal certainty regarding the eligibility of voters and candidates, just as we have for Australian citizens participating in general elections. Therefore, it is logical to conclude that this new category of citizenship must have verifiable documentation as proof of eligibility for participating and standing in elections.

 

But is that even possible?

 

The challenge is that proving one's birthplace is straightforward, unlike establishing Aboriginal descent, which can be complicated. Kyam Maher, the Attorney General of SA, and Bruce Pascoe are just a couple of examples of people who claim Aboriginality but have not been able to prove their Aboriginal heritage. Without proper certification, individuals should not be able to vote or stand for election, even if they identify as Aboriginal. If the government relies on the three-part test to establish Aboriginal identity, it is crucial to have a clear and consistent definition to ensure legal certainty and fairness in the electoral process.  The Australian Electoral Commission cannot rely on someone just filling in a form to apply to Vote on the Aboriginal register.  This will open the issue to wide-scale misrepresentation and abuse on the register.

​

It is estimated that there are over 800,000 people identifying as Aboriginal. Many Aboriginal groups submit that over 30% of those people identifying as Aboriginal aren’t and do not meet the requirements of 3-part test.  Nathan Moran is the head of the NSW Metropolitan Land Council – a very well-funded and powerful Aboriginal corporation and he has openly stated his grave concerns about Aboriginal identity and “fakes”.

​

There are 28,000 people identifying as Aboriginal who have joined NSW Aboriginal land councils.  There are 280,000 people identifying as Aboriginals in NSW.  The Land Councils provide benefits to the Aboriginals in the state and yet 90% of those people identifying as Aboriginal are NOT registered with their local land council.  How many would actually past the 3-part test.  Would the vast majority fail part c) of the test.  This must be established to Vote.

​

There are other instances of Aboriginal communities offering to provide certification that a person is accepted into a community for a fee which makes a mockery of the effectiveness of the definition.  There are a number of Aboriginal corporations that do not have Aboriginals in them.

To take the issue to its ultimate absurdity, the SA Premier Peter Bryden Malinauskas when questioned on proving Aboriginality on Q&A bizarrely advised that he would accept a person signing a statutory declaration as proof that they were Aboriginal.  This is NOT legal certainty.

 

This is unfortunately the grotesque nature of a porous and ill-defined definition of Aboriginal.  Given the likelihood of changes to the definition of Aboriginal identity in the future, it would appear essential that the definition is also enshrined in our Constitution.

​

How can there be a national voice with the clear and unsolvable problem of identity that hasn’t been dealt with and probably can't be solved?

 

The Labor government recently dropped its deportation case against Shayne Montgomery, a New Zealand citizen culturally adopted as Aboriginal.  Montgomery was a non-citizen and should have been deported at the end of his prison sentence.  Incredibly, even miraculously the High Court previously ruled in the Love and Thoms case that Aboriginals can't be non-citizens and therefore can't be deported.  Even without descent, Montogomery became an Aboriginal and whilst never contested in the Court was allowed to remain in Australia and we can only assume that he can vote for or stand to be on the Voice.  We have NO clear understanding of what is or isn't or will be Aboriginal.