Bogus Identity and Constitutional Change
Editor, Quadrant Magazine
In July 2000, Allen Appo of Bundaberg, Queensland, was charged in the Townsville Magistrates Court with a breach of the Fisheries Act by illegally catching undersized and female mud crabs. He was represented by Townsville Aboriginal Legal Aid who argued that, because Appo was Aboriginal, fishing restrictions did not apply to him. However, a cousin of his, who was the daughter of an Aboriginal man, told Fisheries officers that Appo was not of Aboriginal descent and that his family heritage was purely Sri Lankan. She complained that the 66-year-old Appo and more than 100 members of his extended family had been practising the deception for more than thirty years.
In that time, they had received millions of dollars worth of benefits, including housing loans, business loans, study grants, employment preferences and legal assistance. Some operated indigenous cultural schools for tourists and sold their artworks commercially. Other family members had taken advantage of indigenous preference for government jobs and university appointments. No one in authority had ever questioned their rights to these benefits. The colour of their skin was all it took to confirm them.
Queensland Department of Primary Industries legal officers finally made a genealogical study of the family and presented to the court generations of birth, death and marriage certificates showing Appo’s heritage was entirely Sinhalese. Appo was fined on the illegal fishing charge but appealed the magistrate’s decision. He was audacious enough to persuade Aboriginal Legal Aid to represent him again, but the local District Court rejected the appeal.
In other words, the much publicised recent scandal of Bruce Pascoe’s fraudulent claim to be an Aboriginal man, is nothing new or unique. Pascoe’s forbears are all English, mainly from Cornwall, and his genealogy contains no Aboriginal ancestry at all. However, this has not concerned the judges of state Premiers’ lucrative literary prizes supposedly reserved for indigenous writers, or the academic committee at the University of Melbourne who disregarded Pascoe’s lack of any postgraduate qualifications or contributions to academic journals and appointed him Enterprise Professor in Indigenous Agriculture. Given the success that bogus Aborigines like Pascoe and Appo have long enjoyed there should be little doubt they will continue to do so, especially if the Australian populace is foolish enough to support the new Labor government’s proposed referendum to give Aboriginal people their own platform in our Constitution.
Aboriginal identity has well-known financial benefits, provided directly from government or from various government-funded institutions. Hence governments have a palpable interest in being able to clearly distinguish genuine from bogus claimants. If constitutional change will give Aboriginal people even more rights for which other Australians do not qualify, there needs to be some means of distinguishing between those applicants who are genuine and those who are not. Otherwise, special constitutional rights will open up vast opportunities for people to make fraudulent claims. By diverting power to make policy to Aboriginal communities under the guise of self-determination, the Voice would inevitably attract hordes of imposters, carpetbaggers and shysters to this new honeypot. In other words, Labor’s planned constitutional change cannot avoid the vexed question of how Aboriginal identity is defined and managed.
Since 1981 when the Commonwealth published its Report on a Review of the Administration of the Working Definition of Aboriginal and Torres Strait Islanders, Australian governments have accepted a three-part test for genuine Aboriginality: the person should (i) be of Aboriginal and Torres Strait Islander descent; (ii) identify as someone of Aboriginal and Torres Strait Islander descent, and (iii) be accepted as such by the community in which he or she lives.
No Australian government department or instrumentality wants to get into a dispute over this issue and all have happily regarded the three-part definition as the resolution to the question. Unfortunately, the test is anything but foolproof. For the past five decades, Aborigines themselves have been accusing others of being false pretenders. Indeed, within the fickle world of modern Aboriginal politics, this has been one of the most common allegations against rivals. In the ensuing conflicts, federal and state governments, their bureaucracies, institutions and courts have all, when put to the test, shown themselves unable to satisfactorily resolve the question of Aboriginal identity.
Most government bureaucracies that provide grants to indigenous applicants are required to ensure t the money goes to bona fide indigenous claimants. Most require their departmental forms to include a clause along the following lines: “The submission must provide evidence that the applicant is an Aboriginal person or a Torres Strait Islander.” However, if any applicant finds this requirement objectionable, they don’t have to do much to get it waived.
In 2012, the actor Jack Charles applied to the federal government’s arts funding body, the Australia Council, for a grant to write a book about his life. He had been working in the theatre since 1971 and also had some roles in minor documentaries and feature films. Like most actors, Charles thought he was a famous person who would not need to establish his identity. So when the Australia Council followed its protocol and asked him to prove his Aboriginality so it could properly consider his funding application, he was deeply offended. He made this as widely known as he could, especially to a sympathetic news media. The resulting publicity quickly caused the Australia Council to cave in, not only in Charles’s case but for all other Aboriginal applicants too. It changed its protocol so that since then, when Aboriginal people are applying for grants, they have not been required to prove their ethnic identity.
The Jack Charles case shows that in applications for federal grants for indigenous people, the onus of proof is not on the applicant. Claims of Aboriginality are now widely taken at face value and the onus of responsibility is on those who are suspicious of such claims to challenge them, obviously at considerable risk to themselves from potential defamation suits or, like journalist Andrew Bolt in 2011, found by the Federal Court to have breached the Racial Discrimination Act. Hence, unless sceptics have strong evidence to prove their suspicions, they are well-advised to keep them to themselves. In short, a bogus applicant finds it easy to get away with it.
The track record of Australian law courts is not much better than the arts bureaucracy. On the one hand, the courts say they recognise the three-part test for eligibility. In the Mabo v. Qld (No. 2) case in 1992, Justice Gerard Brennan endorsed all three points, saying:
Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.
On the other hand, some courts have felt free to drop parts of the test in particular cases. This was apparent in the strange case of Darren Wouters in 1989. Initially, Federal Court judge Cecil Pincus found the Royal Commission into Aboriginal Deaths in Custody had no jurisdiction to inquire into the death of Wouters. In this case, Wouters’s identity failed on both the second and the third counts of the test. He did not identify as Aboriginal and no Aboriginal community identified him as Aboriginal either. Justice Pincus found that, even though Wouters’s mother was probably part-Aboriginal, as were his maternal grandparents, this genetic connection was not enough to make him Aboriginal. Justice Pincus found:
…the late Mr Wouters was of European appearance and presumably of largely European extraction, his mother being part-Aboriginal and his father Dutch; although he became aware that he was part-Aboriginal, he was not identified by the community as an Aboriginal, nor did he regard himself as one. I have come to the conclusion that the late Mr Wouters was not an “Aboriginal” within the meaning of the letters patent and there will be a declaration accordingly.
However, the Royal Commission, which was struggling to find enough Aboriginal deaths in custody to justify its existence, appealed. When the case went before the Full Federal Court, it reversed Justice Pincus’s decision. The full court found the category of Aboriginal “could expand or contract according to the context and purpose”. Hence, because the Royal Commission was a broad-ranging inquiry, it could include people whose identity was in question. This finding smacked more of a favour for the Royal Commissioners than fidelity to the life of poor Mr Wouters. Robert French, who Kevin Rudd later appointed Chief Justice of the High Court, was one of the three judges on the Full Federal Court that made this decision, but it does not impress with its logic. The criterion of “context and purpose” is immensely variable. Anyone denied recognition could argue their case was unique in both context and/or purpose, as individual cases inevitably are, and that they should therefore be exempt from one or more of the three parts to the test. The point of laws and regulations, surely, is to create general rules that all should abide by. Under the Full Federal Court’s criterion, any claim of Aboriginal identity would now be almost impossible to refuse.
This was confirmed when the most exhaustive case to distinguish between genuine and bogus Aborigines failed its objective. In 1997–8, the Tasmanian Aboriginal Centre went to the Federal Court to challenge the eligibility of eleven people to vote in elections to the Aboriginal and Torres Strait Islander Commission. The head of the Tasmanian Aboriginal Centre, Michael Mansell, declared there were “more phoney than real Aborigines in Tasmania, and more than half the voters in the 1996 ATSIC election were not Aboriginal”. Mansell said that if properly investigated, about 60 per cent of Tasmanian “Aborigines” would be rejected, and nationally up to 70,000 self-proclaimed Aborigines would be denied their claimed identity. He said members of the rival Liah Pootah community in Tasmania were not Aborigines but simply white people identifying themselves as such in order to gain access to greater welfare benefits and to make claims for land rights.
After a two-year hearing that took 1000 pages of affidavits, Justice Ron Merkel (a former barrister well-known for acting for Aboriginal clients in the Gunner-Cubillo Stolen Generations test case) accepted as genuine most of the electors in dispute. Even though they were unable to provide proof of descent from tribal society, all but two members of the Liah Pootah community were accepted as being Aboriginal, primarily on the grounds of self-identification and recognition by other Liah Pootah members. None of them could provide a genealogical record that connected them to the original Tasmanian tribes and they were not required to submit to DNA tests. Of the two people ruled ineligible, one was a man who failed to file his evidence on time, and the other a woman who was the only person whose family tree was disproven by immigration records found by the Mansell faction. In other words, as a result of this case, anyone who claims to be an Aborigine and can muster some friends in support, will be accepted by the Federal Court as genuine. Although Michael Mansell was unsuccessful in his Federal Court action, he did manage to prevent the Liah Pootah people from voting at subsequent elections for the Tasmanian Aboriginal Land Council, an organisation controlled by his cousin Clive.
If it is so difficult for the Australian legal system to separate legitimate Aborigines from frauds, then the self-governing Aboriginal entities proposed by Labor’s Constitutional change could hardly do any better. There is a long tradition of dark-hued Australians of various non-indigenous backgrounds who have masqueraded as Aborigines. Some, like the Queensland Sri Lankans, have done it for money and personal advancement; others for political reasons; and others again for all three.
Bobbi Sykes, a one-time teenage striptease dancer, declared herself Aboriginal when she came from North Queensland to Sydney in the 1960s and got involved in radical black politics. She moved on to the Aboriginal Tent Embassy demonstrations in Canberra in the early 1970s. On the strength of her journalism and activism, she became well-known as an Aboriginal identity and advocate of Black Power. Even though she had no undergraduate degree and had left school aged fourteen without finishing high school, she applied for and won a scholarship to America’s top university, Harvard — all expenses and accommodation paid, plus a generous living allowance — where this hallowed institution awarded her a PhD in education. In 1983, Sykes was widely hailed as Harvard’s first Aboriginal graduate. She was quickly appointed to positions across a range of Australian government-funded indigenous associations. Such are the rewards for those who know how to game the system of positive discrimination.
However, there had long been Aboriginal people who knew she was not one of them. In 1972, Aboriginal journalist and editor John Newfong complained she was of White Australian and Black American descent. Brisbane’s Sunday Sun newspaper in 1973 quoted her mother Rachel Paterson saying her father was a black American soldier stationed in Townsville during the Second World War, Master Sergeant Robert Barkely of the United States Army. But it took a very long time for the full-time whistle to be blown on Sykes’s bogus career. In 1998, in her multi-award-winning autobiography, Snake Dancing, Sykes credited herself as founder of several Aboriginal political, welfare and community services. This finally led a number of Aboriginal activists and identities, including the magistrate Pat O’Shane and the academic Gracelyn Smallwood, to out Sykes as a phoney.
During her time as an Aboriginal celebrity, one of the books Sykes launched was by the Western Australian author Colin Johnson, who was then going by the names of Mudrooroo Narogin and Mudrooroo Nyoongah. However, an uncannily similar dispute soon took place over the status of his Aboriginality too. Mudrooroo was a prolific author who not only wrote a best-selling novel, Wild Cat Falling (1965), but also a well-received study of Aboriginal literature, Writing from the Fringe (1990), and a political and social treatise about Aboriginality, Us Mob (1995). He was well known in the media as an advocate for Aboriginal causes. However in 1997, after his sister publicly revealed their descent was not Aboriginal but from a father of African-American background, the co-ordinator of the Dumbartung Aboriginal Corporation, Robert Eddington, denounced Mudrooroo’s claim to Aboriginality and to being one of the Nyoongah people. Until then, his Aboriginal identity had never been questioned by any of the arts bureaucrats who had liberally supported his career. None of them had ever asked him whether he complied with the three-part qualifications for Aboriginal identity. Like Bobbi Sykes, he would not have passed any of them.
One of the plaintiffs who succeeded in prosecuting Andrew Bolt for racial discrimination in 2011 was Larissa Behrendt, who grew up in the white middle class suburb of Gymea, near the Port Hacking waterfront in the Sutherland Shire of Sydney. Larissa became the centre of media attention at one point during the hearings of Bolt’s trial. The ABC program Q&A invited Bess Price, a Northern Territory Aboriginal politician (and mother of now Senator Jacinta Price), to talk about the Howard government’s large-scale “intervention” into domestic violence and child sexual abuse in remote Aboriginal communities. Bess Price had praised Howard’s actions but, watching it at home, Larissa could hardly contain her contempt. Her Twitter protest to one of her contacts at the ABC made Larissa front-page news when she said: “I watched a show where a guy had sex with a horse and I’m sure it was less offensive than Bess Price.”
Her comment was not only something that would now probably rate as hate speech but it also opened up what had been until then a largely unspoken gulf within Aboriginal politics. The activist academic Marcia Langton felt compelled to intervene herself, describing Behrendt’s comments as:
…an exemplar of the wide cultural, moral and increasingly political rift between urban, left-wing, activist Aboriginal women and the bush women who witness the horrors of life in their communities, much of which is arrogantly denied by the former … Behrendt and the other anti-intervention campaign maestros have assumed the role of superior thinkers whose grand education and positions in the metropolis qualify them to heap contempt on the natives of that faraway place where other Australians rarely tread foot and about which they sustain a romantic out-of-date mythological view.
Now, Bess Price is a fully Aboriginal woman, born and raised within the Walpiri tribe in the Central Australian desert. However, neither Larissa nor her parents came from an Aboriginal community, so they couldn’t honestly fulfil all three parts of the Commonwealth’s test for Aboriginality. Larissa’s father, Paul Behrendt, when I knew him in the 1980s, was the head of the Aboriginal Research and Resource Centre at the University of New South Wales. Her white mother, Raema, was an accountant. The parents separated when Larissa was young and she had very little contact with Paul when she was growing up. Paul himself had no contact at all with Aboriginal people or culture when he was growing up. In fact, until he was 40, Paul did not know that his mother, Lavena (Lavinia) Behrendt who died when he was three years old, was part-Aboriginal. Paul’s father, Henry Behrendt, a white man of English and German descent, was a journalist in Lithgow in the 1930s and 1940s.
After Lavena died during childbirth in 1942, Henry did not raise their nine children himself but put them in the Presbyterian Church’s Burnside Homes at Parramatta. Paul remained there until he was fifteen when he left to join the Navy. He did not adopt an Aboriginal identity and pursue Aboriginal politics until the 1980s. Nonetheless, he quickly became one of the most radical activists of the time. In one book he co-authored, he declared British colonisation of Australia illegitimate and said Aborigines should be given a separate country, self-governing with its own laws: a revival of a demand first made by the Communist Party of Australia in the 1930s. Larissa was obviously influenced by all this since after she left school she joined her father as a member of the Aboriginal Provisional Government, headed by the Tasmanian activist Michael Mansell.
Larissa has long portrayed her ancestry as predominantly Aboriginal. In her evidence to the trial of Andrew Bolt, she said when Paul did research on his family background, “the only non-Aboriginal ancestry he discovered was that my paternal grandfather was born in England.” Her witness statement also said that Paul’s mother, Lavena, “had an Aboriginal mother and was brought up by her Aboriginal father”. However, in articles in Quadrant on the Bolt trial and Larissa’s testimony, Michael Connor has pointed out that Lavena actually had a white father, an Englishman named Arthur Dawson. Hence, when her mother’s German antecedents are also counted, only one of Larissa’s eight great grandparents was a full-blood Aborigine, the rest were European.
However, Larissa had few qualms about using her minority biological connection with Aboriginality to make the most of the positive discrimination offered by the education system. She successfully applied for enrolment at the highly selective law school at the University of New South Wales but admitted, “I hadn’t got particularly high marks.” When she applied for a scholarship to take a postgraduate degree at Harvard University, she was preferred ahead of the university medalist, and the decision generated a complaint.
Larissa later told a Sydney Morning Herald journalist that she learnt how to apply for the position from none other than the bogus Aborigine Bobbi Sykes, who in the 1990s was her father’s mistress. Sykes showed her how to win the scholarship. “She literally put the forms in front of me,” Larissa said, and advised her on what to say. Larissa soon found she fitted the required profile. “I think Harvard saw a gap in their intake”, she explained.
Soon after she returned with her degree from the USA, at the age of 31 Larissa was appointed by the University of Technology Sydney as Professor of Law and Indigenous Studies in 2001. She subsequently moved into a high-rise apartment overlooking Hyde Park in the Sydney CBD. There was no Aboriginal community at that locale, let alone “elders or other persons enjoying traditional authority”, who could identify her as one of their own. Yet these days this girl from Gymea calls herself a “Eualeyai/Kamillaroi woman.”
Larissa’s career is another example of how problematic the government’s three-part definition has become. Her case, and the others discussed here, show why the question of Aboriginal identity will remain dodgy, or, as Robert French’s judgment puts it more nicely, as variable as “context and purpose”. In contrast, to decide land rights cases, the Federal Court established a Native Title Tribunal to make judgments based on historical occupation of particular lands. But none of the examples I have given here have any comparable basis in something as tangible as land. They are all based squarely on the identity assumed by the claimants which, as we’ve seen in other notorious recent examples of identity politics, need be nothing tangible at all.
And yet Australians are soon to be asked to vote in a referendum to confer a special status in the Constitution on people who our major institutions cannot confidently identify as genuine, and who other Aborigines denounce as “phonies”. If no one is willing or able to enforce the three-part test, the phonies are highly likely to multiply exponentially in the future, at a rate that correlates closely with the incentives on offer.
There is, however, a rational and civilised way to resolve the issue. This would be to deprive bogus Aborigines of any inducement to make their claims in the first place. That would mean treating Aborigines as equals with other Australians. It would mean abandoning special laws, benefits and employment targeted at Aboriginal people, or any other group based only on race or ethnicity. It would mean that welfare payments should be based on need rather than skin colour; literary awards be based on talent rather than identity; education be based on scholarly accomplishment rather than racial privilege, and employment be based on merit rather than racial quotas. Above all, it would make completely redundant any reason to confer a special status on Aboriginal people in the Constitution.
 Tony Koch, ‘Aboriginal Blood Feud’, Courier Mail, 16 December 2000
 The most useful and thorough examination of this question is: John Gardiner-Garden, ‘Defining Aboriginality in Australia’, Parliament of Australia, Parliamentary Library Current Issues Brief, no. 10, 2002–03, http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/cib0203/03Cib10
 Aboriginal and Torres Strait Islander Commission (Regional Council Election) Amendment Rules 2002 (No. 2)
 ‘Nobody has ever asked me if I’m Aboriginal. This is the only time’, Sydney Morning Herald, 23 November 2012
 ‘Indigenous Win’, Sydney Morning Herald, 2 July 2013; ‘Aboriginal Identity: Who is “Aboriginal”?’, Creative Spirits website, www.creative spirits.info/aboriginalculture/people/aboriginal-identity-who-is-aboriginal#toc0
 Mabo v Qld (No. 2) (1992) 175 Commonwealth Law Reports, 1, p 70
 Queensland v. Wyvill, 1989, at: https://jade.io/article/211732
 Gardiner-Garden, ‘Defining Aboriginality in Australia’
 For sources of these disputes and other conflicts and scandals within Tasmanian Aboriginal communities, see Windschuttle, Fabrication of Aboriginal History, Volume 1, (third edition, 2005), ‘Epilogue: Heritage, Genealogy and Black Intellectual Authoritarianism’, pp 417–36
 quoted by Anita Heiss, in Dhuuluu-Yala: To Talk Straight — Publishing Indigenous Literature, Aboriginal Studies Press, Canberra, 2003, p 9
 Marcia Langton, ‘Aboriginal Sophisticates Betray Bush Sisters’, The Australian, 15 April 2011
 Michael Connor, ‘Larissa Behrendt and the Denial of Family’, Quadrant, June 2022; Michael Connor, ‘The Family Stories of the Behrendts’, Quadrant, November 2016
 ‘Lunch with Larissa Behrendt’, Sydney Morning Herald, 18 September 2010