One of the most persistent features of colonial jurisprudence is its aggressive insistence on defining colonised peoples on its own terms. In his 1797 work Law of Nations, Emer de Vattel conflated cultivation with civilisation, ironically presuming to define Aboriginal people by his perspective on their relationship to land.
In the same Anglo-European tradition, the British claimed this continent by citing terra nullius. This now-discarded doctrine of land belonging to no-one rested on a further fiction, this time of nomads. The anglo-euro idea was that Aboriginal peoples aimlessly wander across country, a claim which quite literally could not be further from the truth. While many Indigenous cultures have as sophisticated land management and ecological knowledge as here, no human society on earth has a longer continuous connection to country than the more than 300 distinct Peoples of Australia.
Nomadism means a seasonal way of life anyway, rather than aimless wanderings, often disparagingly referred to as ‘walkabout’ (noting that it is entirely up to Aboriginal people to reclaim the word Walkabout on whatever terms they choose). But definitional accuracy is not a strong point of colonisers making bold assertions as to the culture and traditions of Black peoples. It is well documented that the most extreme forms of scientific racism – a fabricated human hierarchy with white men placed, by white men, at the top – were applied to First Peoples in Australia.
Alongside this recent history are post-war understandings of the right to self-determination, which is the cornerstone right specific to Indigenous Peoples. Self-determination is formally encoded into the leading international instruments of their kind, the United Nations Charter (Chapter 1, Article 1(2) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) Article 3, signed by Australia in 2007.
When white law and society – the colonial state and social surveillance, each as invidious as the other – impose definitions of Aboriginality on Aboriginal people, we violate the general right to self-determination and the specific right of Indigenous Peoples to define themselves.
The colonial jurisprudence of imposing identity
The UNDRIP Article 33(1) states: Indigenous Peoples have the right to determine their own identity or membership in accordance with their customs and traditions. Yet settler-colonial nations insist on exercising – or abusing – the power to define colonised peoples. This is not some legacy of a bygone era. It is a continuation of the philosophy, law, and actions – the jurisprudence – of the British invasion, attempted genocides, and forced assimilation.
To illustrate, many Australians are familiar with the Stolen Generations, but possibly without having contemplated the jurisprudence of colonisation. The Stolen Generations are made up of Aboriginal and Torres Strait Islander people who were forcibly removed from their families as children, and their descendants. This is formally known as ‘assimilation’. It is informally known as ‘breeding out the colour’, which is a eugenics program, as signified by the word ‘breeding’.
Forced assimilation in turn rests on widespread belief in scientific racism, an obnoxious and discredited but (not yet eradicated) school of thought that provided the philosophical foundation for Aboriginal Protection Acts and Aboriginal Protection Boards. These are laws and institutions of executive government. Finally, officers of those agencies, as well as police and missionaries authorised by the same laws, took children from their families, by force, on the basis of their Aboriginality.
This is how philosophy, law and practice operate together under the rubric of colonial jurisprudence. The rubric can be applied to all the ways colonial powers were directed towards First Peoples: from formal acts of dispossession like the First Charter of Justice to the earliest criminal prosecutions against Aboriginal men (see R v Murrell and Bummaree  NSWSupC 35), from segregation in cinemas and public pools well into the 20th century, to the disproportionately high rates of incarceration, police brutality, and forced child removal to this day.
In all these cases and many more, governments and the laws they pass operate in concert with the academy, cultural institutions and society, to maintain dominance over colonised peoples
Defining Aboriginality in 2018
This background is by way of context to the current proposal to create a new Indigenous Productivity Commissioner position. The position will be created by way of a bill to amend the Productivity Commission Act 1998 (Cth). Typically of how government rates that which concerns Aboriginal people, the amendment can be found on page 45 of a 45-page document, the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017 No. [blank], 2017 Treasury.
The Productivity Commission compiles data on Aboriginal people which it publishes in its biennial Overcoming Indigenous Disadvantage report. This is one of three publications which track Closing the Gap, which was established by the Council of Australian Governments (COAG) and announced in conjunction with the 2008 Apology to the Stolen Generations. It includes benchmarks like infant mortality, life expectancy, and education and employment levels.
The 10th Closing the Gap report was released on 13 February this year by a Prime Minister who arrived at the Anniversary breakfast for photo opportunities alone and departed without entering the hall.
Closing the Gap, along with the Indigenous Affairs portfolio and the Indigenous Advisory Council (IAC), sit with the Department of Prime Minister and Cabinet (PM&C). I appreciate that these institutional arrangements are dull as dull to most punters, myself included (Kevin Rudd sets out more detail and justification on Closing the Gap governance here). However, the enabling amendment to create an Indigenous Productivity Commissioner has given rise to considerable disquiet among many Indigenous people, as discussed in this broad-ranging article by Karen Wyld, a writer, novelist and consultant of Martu descent.
The public concern largely centres on whether government has unilaterally, without consultation, changed the way Aboriginal people are defined at law. Recall that Indigenous Peoples have the right to determine their own identity. Note that governments can not control what they can not define – legislation must have a subject, purpose and scope. As mentioned, colonial governments define Aboriginality for the purpose forced assimilation, a eugenics program that amounts to cultural genocide. These are not merely historical or legacy issues, but continuing, contemporary realities.
It is entirely logical for Aboriginal people to respond to a known threat, based on evidence, like the definitional amendments buried in the 5th Treasury amendment bill of 2017.
The new law, just like the old law
Those amendments just passed the House of Representatives, and merit closer examination as the bill proceeds to the Senate. It says:
1 Section 3 5
Indigenous person means a person who is:
(a) a member of the Aboriginal race of Australia; or
(b) a descendant of an Indigenous inhabitant of the Torres Strait Islands.
4 At the end of section 24 18
(6) At least one Commissioner must:
(a) have extensive skills and experience in dealing with policies and programs that have an impact on Indigenous persons; and
(b) have experience in dealing with one or more communities of Indigenous persons
There are two things going on here. One is the definition of Aboriginal and Torres Strait Islander Peoples. As Wyld notes, this is “not consistent with today’s standards [and] lacks awareness that Indigeneity is much more than descent, as it is linked to relationships, kin and community, and ongoing cultural practices”. The second is the continuing insistence by the Commonwealth that it is competent to define Aboriginality.
The definition of an Indigenous person at law is circular, and self-referential. A ‘member of the Aboriginal race’ in this context actually means ‘an amendment of this wording authorises the creation of an Indigenous Productivity Commissioner position and is consistent with section 51(xxvi) [the race power] of the Commonwealth of Australia Constitution Act 1901 and also the International Convention on Elimination on all Forms of Racial Discrimination’.
Except that is not what is going on at all. The new Commissioner role is not required at law to be filled by an Indigenous person. The amendment quite specifically says a person ‘with extensive skills and experience’ of ‘dealing with’ Indigenous communities.
In other words, a mission manager.
The three-part test
However, there has been some misunderstanding around the definition of Indigenous in the amendment, which at law subsumes rather than changes the three-part definition of Aboriginality: Aboriginal descent, self-identification as Aboriginal, and community acceptance as an Aboriginal person.
The three part test is often referred to as an ‘administrative’ definition, which is not correct. It was set out in full as far back as 1983 in section 4 of the NSW Aboriginal Land Rights Act, and the authority at common law is the High Court of Australia (Commonwealth v. Tasmania (1983) 158 CLR 1 at 551 per Deane J).
As such, reassurance that the amendment contains the three-part test is not, as Minister for Indigenous Affairs Nigel Scullion asserted, because it “is wholly consistent with the standard Commonwealth legislative definition used under both Liberal and Labor governments since the 1970’s (sic)”.
Further, as Scullion himself points out, this is a Treasury bill. Why, then, has Scullion been sent out to defend it? Surely the government would not establish a governance structure which enables interminable buck-passing between Treasury and the PM&C on an ‘Indigenous’ position – which is not an identified Aboriginal position – that it claims will ‘deliver better outcomes for First Australians’?
Surely not. But in among his paragraphs which do not accurately clarify the definitional issues, Scullion drops this gem:
Consideration of how to define Indigenous status in legislation is a significant matter and well above politics… [The Government] calls on Labor to immediately rule out doing a dirty deal with One Nation to change the legislative definition of an Indigenous person.
There has been much chatter recently about declining standards in public debate. Less clear is what was the previously high standard from which debate has declined? This kind of pompous innuendo is entirely consistent with the standard of rhetoric I have seen in 35 or so years following Australian politics, particularly from Conservatives.
More importantly, including the definition of Indigenous in the Treasury Bill merely scopes the requisite skills and experience in ‘dealing with Indigenous persons’. It is this contradiction that lies at the heart of community disquiet about the amendment. ‘Dealing with’ could include someone who has exploited Aboriginal people and damaged their lands, or as one Aboriginal colleague noted wryly, Twiggy Forrest could be appointed.
Meanwhile, inclusion of the definition limits the scope of the Commissioner’s role to monitoring Indigenous people and Indigenous communities, people who already experience extremely heavy surveillance from both society and the state.
The last word as the bill proceeds to the Senate goes to my colleague Lynda Holden, an Aboriginal lawyer and law lecturer:
“Aboriginal people know that if it is not an identified position, they are removing the three-part test. Because unless the Indigenous Productivity Commissioner is an identified Indigenous position, there is no need for the three-part test to be in the legislation. Much the same as the Minister for Indigenous Affairs is not an Indigenous person…
Both the Commissioner and the Minister should be an identified Aboriginal position”