SA Premier Peter Malinauskas Redefines Aboriginality in South Australian Law
The South Australian Labor government of Premier Peter Malinauskas is the first government in Australian history to legislate an Indigenous Voice to parliament.
Premier Malinauskas, and his Attorney-General and Aboriginal Affairs Minister, the proud ‘Aboriginal man’ Kyam Maher, have created a piece of legislation that has several unique features.
Firstly, the legislation was developed and introduced by the Hon Kyam Maher MLC, who Premier Malinauskas proudly promotes as South Australia’s first ever Aboriginal person to occupy the role of Attorney-General.
Figure 1 - The Hon Kyam Maher MLC being sworn into the SA government of Peter Malinauskas as SA’s first ever Aboriginal Attorney-General (Source)
Secondly, Premier Malinauskas has redefined the notion of Aboriginality in SA, in a contrary sense to how the rest of us have come to understand it over the past 40 or so years.
Until now, the legal definition of Aboriginality, which was accepted by governments, the public service and the courts, was known as the three-part definition, where
An Aboriginal or Torres Strait Islander is a person,
(1) - of Aboriginal or Torres Strait Islander descent;
(2) - who identifies as an Aboriginal or Torres Strait Islander and
(3) - is accepted as such by the community in which he [or she] lives.
The above is subject to the proviso that there has always been scope for government departments and the courts to exercise some flexibility in the definition of Aboriginality by not spelling out, ‘a detailed definition of who is an Aborigine, and …there are distinct advantages in leaving the application of the definition to be worked out, so far as is necessary, on a case by case basis’ (Source ). [See also Note 2 in Further Reading below on this proviso].
Nevertheless, there has always been the expectation that anyone claiming to be Aboriginal must be of Aboriginal descent and have at least some biological Aboriginal ancestry, although the exact minimum percentage has never, and is unlikely ever to be, specified (See film clip here on the difficulty in getting the Australian Government to clarify how biological Aboriginal descent is measured).
SA’s New Description and Options for Being Indigenous
The new definition of a First Nations person included in SA’s new Voice Legislation is shown in Section 4 of the legislation below (Figure 2).
As can be seen, Premier Peter Malinauskas has now provided a new term for what it means to be a legal Aboriginal person in the State of South Australia - they are now described by the culturally appropriated Canadian name, First Nations person.
Although his legislation still includes the first-part requirement to be of ‘Aboriginal descent’, the Premier’s new option for claiming ‘Aboriginal descent’ does not necessarily require the producing of any family tree records or documentary proof but rather, as he told his audience on the ABC’s Q&A program in March 2023, South Australians will be able to self-identify where,
“…those Indigenous people [of South Australia] have to declare through a statutory declaration that they are Indigenous and that will entitle them [to vote for SA’ Voice].
Thus, it appears that the Premier has provided a verbal over-riding of his own legislation by allowing people to ‘self-declare’ that they have Aboriginal descent, and not require them to ‘prove’ that they actually have Aboriginal descent.
As Senator Price correctly points out in the film clip, this self-declaration is ‘flawed from the get go’, as her lived experience tells her that all the ‘fake Aboriginal’ applicants will line-up to ‘self-declare’ themselves as being Aboriginal and thus be eligible for all the benefits that the government of Malinauskas will be providing to his newly defined, First Nations peoples.
Now the Premier does try to make the valid point when he says in the film clip that,
‘…if you want to lie on a statutory declaration that would be your option yes but for those people that like to tell the truth, and in my assessment that's the overall majority of South Australia’s Indigenous people, Indigenous people will be able to declare that they're Indigenous…’
But what he fails to realise is that when a ‘fake’ self-declares by signing a statutory declaration that “they believe, to the best of their knowledge, that they are Aboriginal”, they are in most cases not actually lying. They really do come to believe their family oral histories and what they are declaring is, to the best of their knowledge, truthful.
It is only a criminal offence to wilfully provide a false statement on a statutory declaration, where ‘wilfully’ is defined as, ‘with the intention of causing harm; deliberately.’
As proscribed by the South Australia Oaths Act 1936, under Section 27—False declaration,
(1) Any person who wilfully makes any declaration by virtue of this Part, knowing that declaration to be untrue in any material particular, shall be guilty of an offence, and shall be liable, upon conviction thereof, to be imprisoned for any term not exceeding four years.
The Premier and his legislation are not asking South Australia’s Aboriginal people to provide evidence or proof that they are of Aboriginal descent, for example by providing family trees and genealogical records.
What is being asked for is only that Aboriginal people self-declare that they believe that they are Aboriginal. This is not the same thing as being of Aboriginal descent, which can only be determined by the proviision of documentary evidence or proof, or DNA evidence.
The Premier is actually allowing a gross injustice to be perpetrated on South Australia’s ‘real’ Aboriginal people and South Australia’s tax-payers.
To illustrate this with an analogy, consider the case of a job vacancy for a doctor at an Adelaide hospital. The pre-requisite for the job is that you must be a doctor. Under Premer Malinauskas bizzare thinking, applicants would not be required to provide certification or proof that they have medical degrees and are in fact doctors. They could instead get the job by self-declaring by statutory declaration that they, to the best of their knowledge, believe that they are doctors.
As way of further illustration, consider the ‘mock-up’ of a hypothetical statutory declaration, by a hypothetical South Australian ‘Aboriginal’ person who wants to enrol to vote is SA’s Voice election (See Figure 3 below).
Our legal advice is that this statutory declaration would stand and be acceptable to the SA Voice Electoral Commissioner if the our hypothetical applicant, John Skin-name Smith, genuinely believed his particular circumstances to be true.
Figure 3 - Hypothetical mock-up of a ‘Statutory Declaration’ which our legal advice suggests would be acceptable for self-claiming Aboriginality under the SA’s First Nations Voice 2023 Legislation. (Source of Form MR28)
Advice given to us is that it would be very unlikely for this statutory declaration to be contested. We are definitely not encouraging any South Australians to knowingly lie and complete a statutory declaration they know to be false.
Rather, we are saying that it is very possible that people who do not have any Aboriginal descent may still nonetheless actually believe that they do, based on their own family oral history.
For example consider South Australia’s Attorney-General himself, the self-identifying Aboriginal man, the Hon Kyam Maher MLC.
We understand that Kyam Maher himself firmly believes that he is of Aboriginal descent, based on the family history that his mother told him (see our previous post here ).
Figure 4 - SA’s First Aboriginal Attorney-General Kyam Maher
However, the genealogical evidence that we have collated suggests that the late Viv Maher (Kyam’s mother) appears to have been mistaken in her belief that she was of Aboriginal descent.
None of her ancestors could be identified from the publicly available records as being of Aboriginal descent.
Fortunately for the Attorney-General, it would appear that he can secure his legal status as an Aboriginal man in South Australia by, as his Premier indicates above, self-declaring by statutory declaration.
As long as Attorney-General Maher honestly believes his Aboriginal ancestral family history, relayed to him by his late mother, it would appear that he can quite legally self-identify as Aboriginal under SA’s new laws and the verbal guidelines as described by Premier Malinauskas. It would appear that there is no legal requirement for the Hon Kyam Maher MLC to produce any documentary evidence, or family tree genealogy, to support his claim for Aboriginality in the State of South Australia.
Perhaps, this is also what many other so-called ‘Aboriginal’ academics, that we have exposed on this website during our Deep Fake Project, have done.
Maybe Professors Bruce Pascoe, Dennis Foley, Kerrie Doyle, Jaky Troy and Lisa Jackson Pulver have all self-declared by signing statutory declarations claiming that they firmly believe, to the best of their knowledge, that they are of Aboriginal descent?
As we discussed in a previous post, Is Trans-Racialism the Next Big Thing?, maybe all these ‘self-identifying’ Aboriginal professors and politicians are in the vanguard of a new concept we will all have to deal with shortly, namely trans-racialism.
The trans-gender movement has largely been successful in changing the attitudes and laws of our society with regard to the rights of trans-gender people. We, as a society, are now expected to accept that a biological man is actually a woman once he self-identifies and firmly believes that he is in fact a woman.
If our society accepts the legality of this trans-genderism, why shouldn’t it accept the notion of trans-racialism, as being facilitated by the laws and definitions of SA Premier Peter Malinauskas, that a white man can self-identify by statutory declaration as being Aboriginal if he firmly believes his family oral history that his family has Aboriginal ancestry?
South Australia, welcome to the Twilight Zone
Further Reading
Note 1.
A couple of interesting consequences would appear to follow from this new SA Voice legislation.
Firstly, under Section 4, South Australia’s Aboriginal peoples are no longer referred to singularly/collectively as Aboriginal person/people. Instead, they are now to be known as South Australia’s First Nations person/people, a name originating in, and culturaly appropriated from, Canada.
It would be interesting to know if Aboriginal people in South Australia themselves were given a ‘voice’ on this new naming classification - were they consulted on this name change? Do the majority prefer to be called under the Canadian name of First Nations people instead of the convential Aboriginal people?
A second interesting thought exercise that arises from part (2) of this section in the legislation is that there are probably thousands, if not hundreds of thousands of non-Australian residents (foreigners) who are, ‘biologically descended from the persons who inhabited Australia or the Torres Strait Islands…before European settlement (that is, pre-1788 for Australia and pre-1872 and -1879 for the Torres Strait Islands).
These foreigners now live places such as Indonesia (Makassar), PNG and possibly other Melanesian and even Polynesian Islands. These people are a result of the extensive cross-cultural and social exchanges that occured amongst the Indigenous peoples of Northern Australia with neigbouring countries and cultures.
With modern DNA advances, it will be interesting to see if any claimants from Indonesia, PNG and other countries or islands apply for South Australian residency based on this Section 4 part 2 of SA’s Voice legislation.
Any such legal claims would possibly also be able to rely on the precedent set by the Love and Thoms v Commonwealth cases, namely that there is now a new category of a ‘non-citizen non-alien’, or "belonger".
It is a long bow to draw perhaps, but an activist High Court might decide that constitutionally an applicant from say, an Indonesian family who can demonstrate that they are ‘biologically descended from an Aboriginal person who inhabited Australia before 1788’ might have a ‘belonger’s’ right for a permant residency visa to return to their ‘country.’
This Indonesian family might have DNA and family tree proof that their Makassan ancestor intermarried with Aboriginal people in say 1750 during a trepang fishing trip to northern Australia, who were then taken to settle in Makassar.
To support the idea that this scenario is even possible consider an the ABC report published on 11 Feb 2023 concerning the,
‘…discovery of a trove of long-forgotten, black-and-white photographs in an Italian library has proven that a group of Indigenous Australians formed a community in South East Asia 150 years ago.
The striking images were taken in the Indonesian city of Makassar in the 1870s, and show half a dozen young Aboriginal men and children from northern Australia.
They corroborate written and oral accounts that describe Aboriginal people moving overseas with visiting Asian fishermen, some prior to British settlement of northern Australia, and some even dating back to the 1600s’.
Similarly for the Torres Strait Islands where there is good evidence that flows of peoples into and out of the Torres Strait occurred for millennia. Thus, it is quite conceivable that DNA tracing will locate people, who currently live in PNG and Melanesia, who are ‘biologically descended from the persons who inhabited Australia or the Torres Strait Islands…before European settlement ‘(ie: pre-1872 - 1879)
As academic Ian Mcniven, in his paper, TORRES STRAIT ISLANDERS: THE 9000-YEAR HISTORY OF A MARITIME PEOPLE, Jan 2011, (Full copy here) explains,
‘…Between 2500 and 3000 years ago the pace of cultural change increased dramatically across the Torres Strait. Around 2800 years ago the first evidence of people in the eastern Strait appears with shellfish remains in buried villages on Mer (Murray) Island. By 2500 years ago, these early eastern Islanders were using finely made, red-slipped pottery …Analysis of the clays used to make the pottery suggests both local manufacture…and importation from New Guinea… and most likely indicates a migration of coastal Papuan peoples to the Torres Strait around 2500 to 3000 years ago… In the 1860s, commercial fishermen began moving from the western Pacific into the Torres Strait…The pearling industry evolved rapidly from free-diving to the use of luggers and brass diving helmets and employed many Torres Strait Islanders, immigrant South Sea Islanders and Asians across the Strait…’
Thus, there would appear to have been much opportunity to distribute Torres Strait Islander ‘biological descent’ into PNG, Asia and Melanesia to peoples who still live there today.
Note 2 - The 3-Part Rule Proviso.
As brilliantly exposed by Federal Senator Alex Antic, Australia’s federal bureaucrats today are very reluctant to define exactly what Aboriginal and Torres Strait Islander decent really means - watch here to see how our bureaucrats are reluctant to be specific on this topic.
As discussed above, the legal definition of Aboriginality, which is accepted by governments, the public service and the courts, was known as the three-part definition, where
An Aboriginal or Torres Strait Islander is a person,
(1) - of Aboriginal or Torres Strait Islander descent;
(2) - who identifies as an Aboriginal or Torres Strait Islander and
(3) - is accepted as such by the community in which he [or she] lives.
The above is subject to the proviso that there has always been scope for government departments and the courts to exercise some flexibility in the definition of Aboriginality by not spelling out, ‘a detailed definition of who is an Aborigine, and …there are distinct advantages in leaving the application of the definition to be worked out, so far as is necessary, on a case by case basis’ (Source ).
27 April 2023
Below is a recent job advertisement (27 April 2023) calling for Identified Aboriginal People to work as a Community Development Officer for the NT Land Council in Alice Springs, NT.
As proof of Aboriginality, a simple statutory declaration is said to be sufficient.
Job Ad for a Community Development Officer, Alice Springs NT, Australia. 27 April 2023
