Direct constitutional reform in support of First Nations people has been widely discussed. Recently, the campaign for the Voice itself has been back in the headlines, with the National Party announcing their opposition to its creation. Aside from the Voice, changes to section 51(xxvi) of the Constitution — the Races Power — have also been suggested. These proposals are more varied, from editing the language to removing the section altogether.

These reforms are undoubtedly important; as our foundational legal document, the Constitution should be representative of all Australian people. However, progress towards this cause could also be made in areas external to the Constitution. Perhaps the most important of these is our common law interpretations of the Constitution, specifically the test for Indigeneity outlined in the famous case of Mabo v Queensland (No 2).

This test was used to determine the identity of native title holders and is also used to determine Aboriginality for the Races and Aliens Powers in section 51 of the Constitution. It holds that an Aboriginal Australian is a person who is descended from Aboriginals, identifies as Aboriginal, and is recognised as such by an Aboriginal community and elders. However, the first part of this test — biological descent — has recently come into question.

The issues with biological descent are well illustrated in the (now discontinued) case of Montgomery. This case saw the Commonwealth attempting to deport Mr Montgomery, who was not Aboriginal by descent but had been culturally adopted by the Mununjali people. As previously held by the High Court in the seminal decision of Love and Thoms, an Aboriginal person is never an “alien” in Australia and thus cannot be detained or deported under the Aliens Power. However, since Mr Montgomery did not fulfil the first limb of the Mabo test, it was potentially open for him to be deported, despite identifying and being recognised as Indigenous.

Montgomery exposed the fact that the tripartite test is not truly reflective of First Nations identity. This may not have affected Montgomery’s outcome, as even in the current state of the law, it was possible for the High Court to rule against the Commonwealth. However, inaccuracies in such a crucial legal test could very well have unjust consequences in future cases and should still be addressed. Indeed, submissions for Montgomery by the National Native Title Council argued that the test for Indigeneity is broader than what was outlined in Mabo. Thus, there is a strong case for removing the first limb of the Mabo test to enhance understanding of Aboriginality, especially in the context of constitutional law.

The requirement of descent firstly reinforces the outdated concept of biological race. It is widely accepted that “race” is an inaccurate term: according to the Expert Panel on Constitutional Recognition of Indigenous Australians, it is “socially constructed, imprecise, arbitrary and incapable of definition or scientific demonstration.”

Yet, by insisting that one can only be Aboriginal through biological descendance, the Mabo test continues to maintain ideas of distinct, genetic racial groups. The wording of the test — “biological descent from the Indigenous people” — also (perhaps unintentionally) obscures the fact that there are hundreds of different Aboriginal nations, and perpetuates the image of one, homogenous Indigenous “race”.

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Characterising Aboriginal societies as racial communities rather than political entities has been labelled a “mistake of fact” by Elisa Arcioni and Kirsty Gover, who view it as an attempt to bypass the supposed difficulty and uncertainty of recognising traditional law and customs.

While the Mabo test intended to mitigate this rigid racial logic through the second and third limbs, it does not go far enough. Ultimately, it is still a product of settler law, which is evident in the artificial constraints imposed on First Nations communities by the first part of the test. The naturalisation of non-descendants according to Indigenous law is indeed not an uncommon part of Australia’s Indigenous societies. In denying this aspect, the tripartite test prevents an accurate understanding of Aboriginality. This could result in unjust applications of constitutional powers, such as the Commonwealth’s intentions in Montgomery.

Another, more fundamental reason for reforming the Mabo test is to better achieve the involvement of Aboriginal Australians. It should be our First Nations communities, not our courts, that tell us what it means to be a First Nations person. Thus, only the last two limbs of the test should count. For if cultural adoption and naturalisation are established aspects of Aboriginal society, how can constitutional law tell such individuals that they are not Aboriginal?

The Voice to Parliament is meant to enhance recognition of, and listening to, our First Nations people. It reflects the contemporary aspirations of the Australian people — polling by the Australia Institute in July revealed that a majority of us support the Voice (making the recent political opposition all the more worrying, given the disconnect with general opinion.) Nevertheless, changing the tripartite test is another step towards this goal; giving Aboriginal people more involvement in matters that have a huge impact on their lives.

In Montgomery, the Commonwealth argued that the Mabo test, even in its current formulation, amounted to an “implicit conferral of political sovereignty on Aboriginal societies”. Thus, it would be too risky, too uncertain, to give Aboriginal people an even greater say in the constitutional test for Aboriginality.

Arguments of uncertainty and risk have also been raised against the Voice to Parliament; the current wary attitudes of the Nationals and other opposers. However, for both the Voice and common law reform, this should be a risk we are prepared to take. It is a risk that is necessary in order to achieve a better future for Australia — a future where Indigenous voices have a space, and are meaningfully listened to.

Maya Pararajasingham is a third-year student at the Australian National University, currently studying a bachelor of politics, philosophy and economics/bachelor of law (honours).