The tripartite test of Indigeneity does not entail religious discrimination
In this special mini-series as part of our Voice posts this year, we present a series of posts on the question of the future design of the Voice with a specific focus on questions of determining Indigeneity, and how this might interact with the religious freedom clause in section 116 of the Constitution. We bring you two different domestic perspectives on this issue from Michael Douglas and Luke Beck, and an international perspective from Lucas Lixinski.
25.07.2023
Questions have recently been raised about how the proposed Aboriginal and Torres Strait Islander Voice might intersect with the Australian Constitution’s protections for religious freedom and against religious discrimination in s 116. In this series, Michael Douglas develops an argument that the tripartite test of Indigeneity adopted in Mabo (No 2), if applied as a qualification for membership of the proposed Aboriginal and Torres Strait Islander Voice entails a religious test or discrimination on the ground of religion, which prohibited by the Australian Constitution under s 116. In this short post, I explain why I think this argument is mistaken.
Section 129 will be subject to section 116
The suggestion made by Douglas is that the future legislation that is required to establish the Voice, and which will govern membership of the Voice, will adopt the tripartite test of Indigeneity and in so doing might contravene the religious tests clause of s 116. That clause provides: ‘no religious test shall be required as a qualification for any office or public trust under the Commonwealth’.
Legislation enacted under proposed s 129(iii) (which empowers Parliament to legislate with respect to the composition and functioning of the Voice) will be subject to the limitations found in s 116, as well as subject to other express and implied limitations on power found elsewhere in the Constitution. Indeed, the power in s 129(iii) is stated expressly to be ‘subject to this Constitution’. Parliament could not, for example, grant judicial power to the Voice because that would contravene Ch III. And Parliament could not impose religious tests for membership of the Voice because that would contravene s 116. This is one of the design features of the proposed amendment: that it “fits” our existing constitutional system.
It is easy to see why membership of the Voice would amount to holding an office or public trust (or both an office and a public trust, since those are overlapping categories) that is under the Commonwealth.
But it is harder to see where there might be a religious test.
The government has indicated in the Design Principles for the Voice that in establishing the Voice under legislation, it will adopt the three-step test that was articulated in Mabo (No 2), and has been the basis for determining Indigeneity under various government schemes. That test is: biological descent, self-identification, and recognition by the elders or other persons enjoying traditional authority among the relevant people.
Douglas’ concern is with the second and third limbs; the idea being that there is a religious element relating to Indigenous spirituality to self-identification and a religious element relating to Indigenous spirituality to recognition by the elders or other persons enjoying traditional authority among the relevant people. The assumption that there is a religious element to these limbs is not warranted.
Indigenous spirituality
It is worth noting that Brennan J’s judgment in Mabo (No 2) refers to traditional laws and customs – and not to spirituality or spiritual connections – when describing the origins and incidents of native title (at 58) and when outlining the tripartite test of Indigeneity (at 70).
Douglas argues that Indigenous ‘traditional laws and customs are spiritual in character’ and in support of that proposition cites a range of dicta describing Indigenous ‘connections to land, as determined by application of traditional laws and customs, as spiritual in character’.
One problem with this reasoning is that connection to traditional lands forms no part of the tripartite test of Indigeneity. It is inaccurate to equate possession of native title rights (which requires connection to land) or connection with traditional lands with Indigeneity. Not all Indigenous Australians are native title holders. Native title can be extinguished where the relevant connections to land have been severed, as for example the High Court affirmed had happened in the Yorta Yorta Case. But a person is no less Indigenous and does not fail to satisfy the tripartite test of Indigeneity just because their own or their people’s connection to land has been severed.
Another problem with this reasoning is this. It is a mistake to latch on to words like ‘spirituality’ to draw legal conclusions without also looking to the substance of what in context the word is being used to label. The Full Court of the Federal Court reminded us in June this year in Yunupingu (a native title case) that Indigenous concepts can be ‘difficult to describe fairly in English’. And in 2019 in Fortescue v Warrie (another native title case) Jagot and Mortimer JJ observed that ‘it is to misunderstand [Indigenous concepts] to require them to fit into non-Aboriginal concepts’. What we in English refer to imprecisely as Indigenous spirituality is not necessarily a religion or religious in nature.
Indigenous spirituality comes in different forms. In some forms, it may be accepted as amounting to a religion, and where it does it would attract all the legal protections applicable to other religions including those arising under s 116. The Australian Bureau of Statistics’ religious affiliation classification uses ‘Australian Aboriginal Traditional Religions’ to label these.
But not all Aboriginal and Torres Strait Islander Australians adhere to ‘Australian Aboriginal Traditional Religions’, even where those individuals would clearly satisfy the tripartite test. There is religious diversity among Indigenous Australians. So, for instance, Senator Patrick Dodson (who was the first Aboriginal person ordained as a Catholic priest), Anthony Mundine (the athlete, who was raised Christian but later converted to Islam) and Professor Lisa Jackson Pulver (who converted to Orthodox Judaism) do not fail to satisfy the tripartite test because of their religious beliefs and practices.
By way of numbers, data obtained from the 2021 Census using the ABS TableBuilder shows that only 7,887 individuals are counted as adhering to Australian Aboriginal Traditional Religions. The total Indigenous population was over 800,000 individuals.
The point to emphasise is this: even if there is something about Indigenous spirituality bound up in self-identification and recognition as Indigenous that something cannot assumed to be religious in the English language sense of the concept.
The religious tests clause of s 116
The key legal issue is whether the tripartite test of Indigeneity involves a religious test. As I have discussed at length elsewhere, s 116 was inserted into the Constitution largely as a reaction to the political campaign by Protestant churches for “recognition” of God in the preamble. Its language was borrowed from the United States Constitution (which has provisions about establishment, free exercise and religious tests) with the addition of a prohibition on imposing religious observances because it was believed that the Protestant churches’ push for constitutional recognition of God was a disguised attempt at trying to facilitate the Commonwealth imposing nation-wide Sabbath observance laws. However, ‘the precise language of s 116 was not the result of a careful drafting choice.’
So what does the religious tests clause prohibit? In ‘The constitutional prohibition on religious tests’, I surveyed the complex history of religious tests in English, American and Australian law. I wrote:
[R]eligious tests come in many forms. These include a requirement to participate in particular religious practices, a requirement to disclaim belief in a particular religious doctrine, a requirement to take a religious oath of office such that a person must hold some religious belief, a requirement to be or not to be of a particular religious status, as well as a requirement to swear or affirm to particular religious beliefs.
None of the three limbs of the tripartite test amount to any of these things. The tripartite test does not turn on whether an individual practices ‘Australian Aboriginal Traditional Religions’ or any other religion. It does not require participation in any religious practice or non-participation in any practice for religious reasons. It does not require a person to affirm or disclaim belief in a particular religious doctrine. It does not require a person to take a religious oath. And it does not require a person to be or not be of a particular religious status. Nor, indeed, does it give any kind of ‘religious’ leader a decision-making or veto power: the elders with cultural and customary authority to recognise others as Indigenous inevitably have a variety of different religious affiliations themselves.
Practical experience in the several contexts in which the tripartite test is used also suggests that concerns about the tripartite test involving religious tests are misplaced.
In ‘The Australian Constitution’s religious tests clause as an anti-discrimination provision’, I explained that the religious test clause of s 116 operates as an anti-discrimination provision. While most States have laws prohibiting discrimination on the ground of religion, I am not aware of any case law or commentary suggesting that the tripartite test when used in State legislative and administrative contexts amounts to religious discrimination.
Federally, the tripartite test of Indigeneity is widely used as a qualification for various offices. The Australian Public Service Commission adopts the Mabo (No 2) tripartite test of Indigeneity as a selection criterion for public service positions restricted to Indigenous candidates (so-called ‘identified’ positions). Public service offices are, of course, subject to the protection of the religious tests clause of s 116, and I am not aware of any case law or commentary suggesting that the tripartite test when used here contravenes s 116.
Conclusion
Unless Parliament tries to do something like require members of the Voice to practice an ‘Australian Aboriginal Traditional Religion’ or to disqualify Catholics, mandate annual attendance at a church service or require a religious oath of office (to use some historical examples of religious tests) in the membership provisions of future Voice machinery legislation, there appears little chance of a successful challenge to a future Voice on the grounds of s 116.
Luke Beck is Professor of Constitutional Law at Monash University and a leading scholar in the field of separation of religion and government and religious freedom under the Australian Constitution.
Suggested citation: Luke Beck, ‘The tripartite test of Indigeneity does not entail religious discrimination (25 July 2023) <https://www.auspublaw.org/blog/2023/7/the-tripartite-test-of-indigeneity-does-not-entail-religious-discrimination/>