An article published in the Weekend Australian by Paige Taylor has revealed sections of an email to the Home Affairs minister written by a member of the Prime Minister’s Senior Advisory Group for a Co-Designed ‘Voice’ to Government that seeks federal investigation of the identity – or Indigeneity – of author Bruce Pascoe and purported to recommend investigation for “dishonesty offences.”
Chillingly, the request goes further to call upon the minister to develop an “efficient” national register for Aboriginal people.
It is significant that a ‘senior’ governmental advisor would utilise their position in a manner that brings about a federal investigation into the Indigeneity of an individual but that is a matter for Minister for Indigenous Affairs Ken Wyatt to address, although he has made his thoughts clear on this conduct.
The emailer is a lawyer who would be cognisant of their obligations as a legal professional, which include a paramount duty to the Court, fundamental ethical duties such as avoiding any compromise on integrity and maintaining professional independence. By making allegations of this nature the emailer – as a lawyer – is held to a different standard than other individuals who seek to make complaints about other individuals. The emailer is asserting that such allegation is with evidentiary bases, which perhaps explains why Dutton forwarded this on to the AFP to investigate – he acted on reliance of an allegation from a lawyer and he is aware of the professional standards of truth and integrity that lawyers must adhere to.
Leaving aside the obvious issues with a national register which is well explored by Jack Latimore in his opinion piece for NITV, instead, we explore this allegation of “dishonesty offences.” It is reasonable to find the concept of dishonesty offences confusing in circumstances where we are predominantly used to understanding criminal culpability (as is being alleged) in the state sense pursuant to the relevant state based Crimes Act.
However, the nature of the allegations being levelled at Pascoe are that of the Divisions 134 and 135 of the Criminal Code 1995 (Cth) in addition to Section 29 (fraud).
The emailer alleges that Bruce Pascoe has obtained a benefit from identifying as Aboriginal – which she contends is not true – and that this is in breach of Section 29 and Divisions 134 and 135 of the Criminal Code 1995 (Cth).
There is significant overlap among the sections cited so I won’t list them all, however, when each section is examined – they take the same form in setting out the elements of the offence.
They state that for a person to be guilty of an offence they need to have engaged in the conduct that amounts to an offence; that conduct needs to have caused a financial advantage to himself or herself; that individual must do so knowing that they are doing so dishonestly and (in some cases) the other ‘person’ is a Commonwealth entity.
It goes without saying, that the language in legislation is carefully defined and usually with specific legal tests in mind that allow Courts to apply in instances where the legislation is to be tested in real cases. The criminal code is no different and although the offences themselves have a conduct element that differs slightly among the sections, they contain the requirement that the alleged offender is ‘dishonest’ in respect of the conduct.
The amendments to the Criminal Code to include the bolstered sections concerning dishonesty were discussed by the house committee (Committee) considering same at the point in which the amendments were merely a Bill. The definition of ‘dishonesty’ was discussed and how this term was to be defined in the legislation and in application of the law. The term itself was usually subject to the Ghosh test which was established in an old UK Court of Appeal case – R v Ghosh  EWCA Crim 2.
The Ghosh test is (emphasis added):
“…a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.
If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.”
The Committee also discussed how, over time, the definition was revised somewhat in Australia pursuant to the Peters test, in which the High Court, in Peters v R  HCA 7, asserted that dishonesty (emphasis added):
“…is to be determined by reference to the current standards of ordinary, honest persons and the requirement that it be determined by asking whether the act in question was dishonest by those standards and, if so, whether the accused must have known that that was so.”
So the definition of dishonest in the Criminal Code means:
(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the standards of ordinary people.
So by these definitions, in order to act to prosecute, the AFP must find:
- Pascoe is not Indigenous;
- He obtained financial advantage as a result of identifying as Indigenous;
- He identified as Indigenous knowing he is not in fact Indigenous, with the intent to obtain financial advantage for such identification; and
- For some of the offences, the aggrieved party must be the Commonwealth.
Given the above, acting reasonably, the AFP will likely consider the allegations unable to be made out. Firstly, Pascoe meets the accepted definition of Indigenous as he (a) identifies as Indigenous; (b) has publicly confirmed he has documentation that traces lineage confirming Indigeneity; and (c) is acknowledged and accepted by Yuin lore men to be Indigenous (notwithstanding the disputes in respect of the tangential lines within his family history).
While the issue of identity is a complex one that – protocol dictates I do not weigh in outside of my own community and clan– I will say that it should be one that is handled by our communities pursuant to established cultural protocols and not the Commonwealth.
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