Question 2:

         ‘We ask for a direct representative in the Commonwealth Parliament, and if there be too much prejudice against a “black-fellow” then may we be appointed a white man of our own choosing?’ [1]

– Bill Ferguson in a letter to the Governor General, Alexander Hore-Ruthven. 1940.

Introduction

The central claim of this essay is that Indigenous Australians require reserved seats in State, Territory and Federal Parliaments as a necessary site for Indigenous peoples to assert their fundamental right of self-determination within the Australian political system. Not only would such a position create a means for more effective Indigenous political participation within Australia’s representative democracy, but it would inevitably have a positive rippling effect into all aspects of their social and political life. The pivotal task for such an argument rests in asserting the sui generis rights that Indigenous Australians are entitled, yet have only received to an extremely limited extent in Australian legal history. To persuade non-indigenous Australians who make up 98% of the nation’s population that Indigenous Australians are entitled to distinctive rights to which other Australians are not is a difficult challenge, yet it is from this premise that the argument for reserved seats must follow. The establishment and structure of such a system shall be proposed for the Federal system only. While reserved seats in State and Territory Parliaments are equally as essential, each State’s Constitution sets the parameters for its shape and form, and due to brevity cannot be analysed in any great detail.

          While other minorities in Australia also need their rights recognised and protected, reserved seats would be a clumsy and inconsistent way to achieve such ends and is not elaborated on within this paper outside of distinguishing the unique rights that Indigenous Australians hold, flow from original occupancy and sovereignty that have never been surrendered through formal arrangement or treaty. The denial of Indigenous people’s continuing sovereign status and the dispossession of their lands and resources from which the parliaments, judiciary and healthy economy all irreducibly depend is a strong basis for this claim. All migrants, whether in the majority or minority, must in theory, invest their personal sovereignty into the larger national sovereign of Australia. Whereas Indigenous Australia’s distinct, parallel and continuing sovereign status requires a guaranteed voice to effectively contribute to debates occurring within the larger sovereign of Parliament.

Distinctive rights

         Australia is different to other colonising nations in that there is an absence of any formal overarching law embedded in the fabric of the society that recognises Aboriginal and Torres Strait Islanders as distinct peoples with distinct entitlements. However, by tracing the legal history of Australia, this distinctiveness immediately becomes salient despite the absence to the contrary. The constitutional referendum of 1967 removed the sources of Indigenous people’s distinct legal treatment so that now the Constitution holds no explicit references to Aboriginal or Torres Strait Islanders. Yet laws that distinguish them from all other Australians still continue to operate in State, Federal and Territorial statutes. The Aboriginal Land Fund Act, 1974 (Cth), the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and the Native Title Act 1993 (Cth) just to name a few, are all statutes that rely on distinguishing members of distinct Indigenous communities in contrast to other Australians. In fact, as Webber has argued, ‘the recognition of native title implicitly involves a recognition of Aboriginal societies as autonomous, separate societies.’[2] These statutes, as well as others in the States and Territories are dependent on the recognition of individuals being members of groups, and the group necessarily must be identified for individuals to be subject to the legislation.

         The dedicated seats proposal is grounded in the same ideal that implicitly recognises these distinctive group rights as the sphere through which members can effectively assert their political freedom. It is a political arrangement to ensure fair and proportional access to the nation’s highest authority and ensures a partnership that respects difference instead of ignoring or insulting it. As Catherine Iorns argues, special political measures ‘don’t pretend to remove or assimilate the differences between groups, but regulate[s] possible conflict between them through democratic devices[3]

Reserved Indigenous seats in Australian Parliaments is far from a novel proposal. 1933 saw the first documented request by Burraga, spokesman for the Thirroul people in NSW, who wrote a petition to the King ‘in an endeavour to improve our condition. All the black man wants is representation in Federal Parliament. There is…plenty fish in the river for us all.’[4] Despite over 80 years of campaigning for reserved seats, there has been little analysis of what form these seats would take.

Indigenous Electorates

Parliamentary representation is the modus operandi of the freedom of political expression, yet democratic structures need constant adjusting and fine-tuning for that public expression to most accurately be symbolised in the legislature. For instance, proportional representation was introduced to the Senate in 1949 to give the minority a parliamentary voice they never had before. Although a minority voice of course existed prior to 1949, until the Senate adjusted its electoral system, those voices did not echo in the chambers of Parliament. Similarly, while Indigenous Australians in theory currently have the same access to representation as any other Australians, the quality of that representation is constantly compromised to appease the majority in each electorate. As a two percent minority scattered through each electorate, the Indigenous voice in Parliament cannot be heard. As long as Indigenous people are refused to vote as a united bloc their representation will remain ineffectual and uninspiring.

         The establishment of an Indigenous electoral roll would be the first task and ultimately provide the substance that would shape the form and operation of the unified Indigenous electorates and their parliamentary seats. Upon legislation, a branch of the Australian Electoral Commission (AEC) or an independent tribunal body would be established to monitor and administer the operation of the roll. The amount of enrolments would determine the number of seats and the regions they cover. It would require a minimum enrolment target in order to validate the creation of each seat. This would also gauge the support of Indigenous Australians for the seats proposal and if there were insufficient enrolments its implementation would be abandoned there and then.

         One of the trickiest administrative tasks would be defining the eligibility of persons to be on this electoral roll. Geography is far easier to define than culture. An unfortunate necessity is that legal classifications must meticulously define and limit something that is by its nature multifaceted and sprawling. The standard three-pronged approach to Aboriginal identification as laid out by the Federal Court requires ‘Aboriginal ancestry, self-identification as an Aboriginal person and communal recognition by members of the Aboriginal community.’[5]

            Merkel J lamented in his judgement in Shaw, ‘it is unfortunate that the determination of a person’s Aboriginal identity…has been left to a Parliament that is not representative of Aboriginal people to be determined by a Court which is also not representative of Aboriginal people.’[6] He goes on to hope that one day such definitions will be determined by an Aboriginal representative body. The creation of an Indigenous electoral body could be utilised to provide such an opportunity for Indigenous people to legally define themselves.

         A possible system could only require self-identification in order to enrol. The compiled lists are then checked against the general roll and then sent to local community groups who mark any name they find dubious or do not recognise. From here, the AEC or tribunal must receive personal submissions that fulfil the final ancestral criterion. This process both prevents electoral fraud, limits community coercion (“we’ll acknowledge you in our mob if you vote for “X”) while operating in the least intrusive way possible regarding someone’s personal identity. The legislation must also include punitive provisions to prevent inducements, coercion and identity fraud. It is important that these provisions must be applicable to both individuals and community organisations.

            Once enrolled on an Indigenous electoral roll, the citizen should not be excluded from voting on the general ballot if they so choose. Limiting Indigenous citizens to only vote on their roll restricts them from expressing dissent with their group candidates, while also accommodating for the flexibility of personal identity. They would be entitled to vote once only in keeping with Western democratic theory and adherence to section 30 of the Constitution that ‘in the choosing of members each elector shall vote only once.’[7]

Practical Proposals

Reserved seats should be constructed and informed by consideration of the methods to most effectively enable Indigenous representation, while staying within Australian constitutional parameters and democratic principles. Firstly, the proportion of seats reserved ‘shall be in proportion to the respective numbers of their people’ as section 24 of the Constitution stipulates. This would equate to four lower house seats which is not enough to threaten the crucial lower house function of determining the ruling government.

         In the upper house, candidates do not have to appeal to the interests of a localised majority as lower house members do in a ‘first past the post’ system. For a lower house candidate to advocate for the rights of a two percent minority equates to an act of political suicide. Whereas senators can be elected if there is a significantly united minority interest across an entire State or Territory thus ensuring a place, albeit marginalised for minority opinions.

         The Senate does not require as much fine tuning as the House of Representatives for Indigenous parliamentary participation to effectively work. Furthermore, for maximum efficiency, Indigenous seats in Parliament would require electoral divisions that transgress State borders to equitably distribute representation. The designated seats proposal would be discriminatory if Indigenous electorates were confined within State boundaries. This proposal therefore necessitates some constitutional problem solving. Historically, the Federal Senate was designed along strict State lines to protect and promote State interests and would probably require a referendum to alter. For this proposal to work, it must avoid a referendum for two reasons: It would be unlikely for the dominant society to embrace the idea of Indigenous people receiving special treatment and secondly, if declined it would further exacerbate the sense of hopelessness and exclusion Indigenous people experience in the political system. Because the Senate already offers a proportional voice to Indigenous Australia and the unviable likelihood of fracturing State senatorial divisions, this proposal concerns alteration of the lower house only.

         Constitutionally, dedicated seats where each electorate crosses state borders has a more realistic chance of success through purely legislative means in the House of Representatives. Section 29 states:

Until the Parliament of the Commonwealth otherwise provides, the Parliament of any State may make laws for determining the divisions in each State for which members of the House of Representatives may be chosen, and the number of members to be chosen for each division. A division shall not be formed out of parts of different States.[8]

         The entire proposal hinges on this section and how the High Court of Australia interprets its meaning if the proposal was legally challenged. The issue is whether ‘a division shall not be formed out of parts of different States’ is subject to the ‘Parliament otherwise providing’. No High Court ruling as been made on this particular provision, however as John Chesterman notes, ‘whenever constitutional grounds are relied upon to challenge electoral laws and practices, the High Court has almost always deferred to Parliament’s power in this regard.’[9] To date, the only invalidation of Parliament’s electoral laws was the implied freedom of political communication in the ACTV[10] case. The recent decision in Mulholland by Justice McHugh indicates strongly that the creation of Indigenous electorates by Parliament would be permitted:

[T]he Constitution does not mandate any particular electoral system, and beyond the limited constitutional requirements… the form of representative government, including the manner of electoral systems, is left to the Parliament.[11]

And as Gleeson CJ more broadly stated in his decision:

Leaving it to Parliament… to alter the electoral system in response to changing community standards of democracy is a democratic solution to the problem of reconciling the need for basic values with the requirement of flexibility.[12]

It can be inferred that the High Court would most probably grant the passing of such laws for the House of Representatives and such an argument could be further tailored to the creation of Senate seats if the proposal did not infringe excessively on State divisions.

The practicality of implementing dedicated seats also warrants consideration as to when and how space would be made for reserved seats. Having Members lose their seats in an electoral reshuffle leads to a very bitter taste in the mouths of the politician, their party and the electorate involved. This reaction invariably follows each electoral reshuffle. The constitution permits changes in the number of members of the House of Representatives but requires that it be ‘as nearly as practicable’ twice the number of senators from the states: the so called ‘nexus.’ Brian Costar notes, because there are six states and because half-Senate elections are the norm, increases in the House can only be by multiples of twelve.’[13] The creation of designated seats could coincide with the next increase of seats in Parliament so that no places are removed and increases its palatability. If the model that were to be proposed had been created and approved by Indigenous people and had passed its tests for constitutional validity, then the sliding of this model into Parliament would occur with relative ease.

         A final issue of practicality worth suggesting is the legislation should include a sunset clause. This would serve the purpose of appealing to citizens who hold no sympathy for special political measures or refuse to recognise Indigenous group rights. In this way, the reserved seats system can be seen as just a trial, which ultimately it is. If the legislation included a set period for review, then any modification for it to work more effectively can be implemented.

Conclusion

The ultimate goal of designated seats is to make Indigenous political participation more effective and ultimately, to help alleviate the sense of powerlessness that permeates all aspects of contemporary Indigenous societies. If dedicated seats failed to bring substantial improvement to Indigenous social and political life then it fails to serve its purpose and should be abandoned. Dedicated seats are not an end in themselves, they are part of larger strategy to empower Indigenous Australians and should not be attempted on its own without Indigenous Executive control over their own affairs and financial and human resources to be facilitated by government institutions when asked for by Indigenous organisations. The suggestions put forward in this paper are simply theoretical manoeuvres within the parameters of the Constitution to suggest that such a system is possible. Whatever form these systems take must be determined by Indigenous people themselves. With more sense of power in political processes, more Indigenous Australians would feel encouraged to participate in the political system and the ricocheting between perceived power and participation would continue to increase exponentially to the benefit of Indigenous political well-being without compromising democratic theory or the interests of the larger Australian State.

Bibliography

  Attwood, B. and A. Markus, ed. [1999]. The Struggle for Aboriginal Rights. Sydney: Allen & Unwin.

  Chesterman, J. [2006] ‘Chosen by the People?’ in Federal Law Review Journal. Volume 34 (1). Canberra. Australian National University Press. pp. 1-25

  Costar, B & Hughes, C. [2006]. Limiting Democracy: The Erosion of Electoral Rights in Australia. Sydney. University of New South Wales Press.

 Iorns, C. [2003] ‘Dedicated Seats for Indigenous Peoples: Political Representation as an Element of Indigenous Self-Determination.’ In E-Law Journal Volume 10 Number 4. Perth. Murdoch University Press.

  McRae, H. Nettheim, G. Beacroft, L & McNamara, L [2006] Indigenous Legal Issues: Commentary and Materials 3^rd Edition. Sydney. Lawbook co. publishing

Cases & Legislation

  Australian Capital Television v Commonwealth (1992) 177 CLR 106

  Gibbs v Capewell (1995) 128 ALR 577

  Mulholland v Australian Electoral Commission. (2004) 220 CLR 181

  Shaw v Wolf (1999) 163 ALR 205

  Commonwealth of Australia Constitution Act (CTH) [2003] Office of Legislative Drafting, Canberra.