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Sutherland, Johanna; Russell, Wynne --- "Reserved Seats for Indigenous Australians?" [1998] IndigLawB 5; (1998) 4(8) Indigenous Law Bulletin 13

Reserved Seats for Indigenous Australians?

By Johanna Sutherland and Wynne Russell

Australia currently has no special measures to promote the election of Aboriginal and Torres Strait Islander candidates to Commonwealth, State, or Territory parliaments.[1] In the absence of such measures, Aboriginal and Torres Strait Islander people have been conspicuously absent from Federal and State parliaments.[2] This article focuses on one option for increasing Indigenous representation that is currently under consideration: reserved seats for Indigenous members (with full or limited voting rights) in lower and/or upper houses.[3] In July this year the NSW Attorney–General, Jeff Shaw, called on the Federal Government and the States to consider creating special Parliamentary seats for Indigenous Australians.[4] The NSW Legislative Council’s Standing Committee on Social Issues is currently inquiring into Aboriginal representation in Parliament, and is likely to complete its report towards the end of next year. An issues paper was released in April this year,[5] and regional consultations may take place in 1998 following the production of community education material canvassing relevant issues.[6]

Indigenous Australians currently can elect representatives in various structures devoted exclusively to Indigenous voters, the most innovative of which are the Land Councils and the Aboriginal and Torres Strait Islander Commission (‘ATSIC’). ATSIC has a system of popularly–elected Regional Councils, and these in turn elect Commissioners to the ATSIC Commission. But neither the Land Councils nor ATSIC are represented in Parliament at a State level or in the Federal Parliament, although representations on ATSIC’s behalf are sometimes made to Federal Parliament through the Minister for Aboriginal and Torres Strait Islander Affairs. ATSIC supported dedicated seats in its 1995 Recognition, Rights and Reform social justice recommendations.[7]

The issue of reserved seats is currently topical in social reform fora. The Council for Aboriginal Reconciliation has been cool on the idea, supporting educational strategies on the issues, but not a referendum unless there were broad public support for dedicated seats.[8] The May 1997 National Reconciliation Convention celebrated Federal Parliament’s capacity to pass special legislation for Indigenous Australians following Constitutional change after the 1967 referendum,[9] and it did not produce a resounding endorsement of reserved seats. Nevertheless, participants at a Convention seminar on participation in government supported the adoption of special measures to increase Indigenous Australians’ participation in government at all levels. Additional suggestions from the floor included support for a further feasibility study on reserved seats, new political development and training initiatives, and the allocation of a dedicated seat in the Senate for the ATSIC chair. Constitutional and electoral reform to better accommodate Indigenous Australians’ aspirations may also be advocated by Indigenous and other delegates at the February 1998 Constitutional Convention.[10]

The Constitutional and legal issues inherent in the reserved seats issue are complex. At the Federal level, the potential and constraints in various sections of the Commonwealth Constitution would need to be assessed.[11] It might be Constitutionally possible for ATSIC to have Federal representation from a Territory, but this would probably be tested in the High Court.[12] The variations in populations of Indigenous voters in the different States and Territories would make separate Federal electorates problematic, notwithstanding the High Court’s view that one–vote, one–value is not an implied electoral constraint under Australian Constitutions.[13] At the State level, special procedures such as referenda may need to be met.[14] But NSW seems to be the only state which is looking seriously again at the issue of representation for Indigenous Australians, with broader inquiries in the Northern Territory and Queensland having rejected the idea of reserved seats.[15]

Issues surrounding reserved seats for Indigenous Australians

There are a number of reasons to support the establishment of reserved seats for Indigenous Australians.

• Reserved seats in NSW and other jurisdictions could be one way of empowering Indigenous Australians to maintain a dignified presence as distinct peoples within mainstream political institutions, thereby contributing to Indigenous Australians’ self-determination and human rights recognition.
• Effective representation may require identity representation, with Indigenous people best able to represent Indigenous constituents.
• Parliament could become a more sensitive forum in which to air minority grievances, and committee work and media coverage for Indigenous Australians might be dramatically improved.
• Reserved seats would make the status of Indigenous Australians less dependent on the political good will of the electorate. Reserved Indigenous seats would be insulated from swings in the broader electoral mood over Indigenous issues, as manifest, for example, in the One Nation phenomenon.
• Indigenous Parliamentary representation would also enable negotiations with Indigenous Australians’ representatives on fundamental issues such as native title and social justice through constitutional/institutional Parliamentary processes.[16]
• Reserved seats might be less challenging to mainstream Australia than claims for autonomy or self–government, while not necessarily precluding progress on other aspects of self–determination.

But there are various counter–considerations.

• At the national level, it is not clear that the majority of Aboriginal and Torres Strait Islander people support the concept of special electorates or reserved seats, given that Indigenous Australians do not always vote for Indigenous candidates, often preferring to vote by party affiliation. In any event, reserved seats do not necessarily bring Indigenous peoples benefits beyond the symbolic level.
• If there are only a few Indigenous seats, the electorates are likely to be so large that it is impossible for representatives to serve their constituents’ interests effectively, and so diverse that many voters may be dissatisfied with their representative. Similarly, if the number of seats is small, Indigenous MPs may not be able to affect Parliamentary votes on key issues unless they hold the balance of power.
• If representatives were members of a political party, they would experience considerable pressure to vote for issues along party lines and in accordance with party protocols. Separate representation may also enable the major parties to sideline Indigenous concerns with electoral impunity, expecting Indigenous representatives only to serve their constituents (although arguably that is possible even without reserved seats). And if Indigenous seats consistently return candidates from one political party, other parties may be discouraged from catering to Indigenous constituents’ needs.[17]

Conclusion

Electoral principles such as one–vote, one–value are less central to debates about political representation and Indigenous Australians than principles such as self–determination, empowerment and effective representation of electorates’ interests. But if Indigenous constituents have diverse party affiliations and inclinations, these are unlikely to be met through a small number of reserved seats. On the other hand, the symbolic and media power of Indigenous MPs would be considerable. Ultimately, Indigenous Australians must be consulted more closely on their governance preferences, and in particular whether they aspire to a reserved seats system, and for which institutions and houses. But given the limitations of dedicated seats, perhaps Indigenous groups and party members might encourage political parties more actively to recruit Indigenous people, to pre–select Indigenous candidates to safe seats in better numbers, and to campaign to ensure that Indigenous candidates are well–supported on broad–ranging platforms which include strong commitments on Indigenous issues (including alternative and innovative local and regional governance options).

This longer–term perspective of a reconciled political system is unlikely to be in place before the Sydney Olympics however, and there is a high likelihood that campaigns to maintain hard–won gains will continue in the lead up to and during the Olympic Games, particularly targeting foreign media audiences. So perhaps political pragmatism in the NSW Parliament may just ensure that one or more Aboriginal MPs are in place in NSW for that international spectacle, conveying the impression that at least some of Australia’s political systems are evolving to better accommodate Indigenous Australians’ needs and aspirations.

[1] The NSW ALP Policy Platform on Aboriginal Affairs does include a policy commitment to affirmative action, and supports the preselection of Indigenous Australians in seats of high Indigenous population, but this is not rendered effective through party preselection rules (personal communication, Amanda Fazio, Executive Officer, NSW ALP, 17 October 1997.)

[2] Sitting members include Ernie Bridge (WA, ALP now independent), John Ah Kit (NT, ALP), and Maurice Rioli (NT, ALP). Past MPs include: Neville Bonner (Fed Sen, Lib), Eric Deeral (Qld, NP), Wes Lanhupuy (NT, ALP), Neville Perkins (NT, ALP), Stanley Tipiloura (NT, ALP) and Hyacinth Tungutalum (NT, CLP).

[3] Other special measures could include representation for Indigenous self–governing territories, electoral redistributions to pool Indigenous voters, lower quotas for Indigenous parties, or internal party measures such as targeted recruitment, political mentoring, affirmative action or quotas for preselection.

[4] See ‘Recent Happenings’[1997] IndigLawB 92; , (1997) 4 (6) Indigenous Law Bulletin 21.

[5] Aboriginal Representation in Parliament: Issues Paper No 3, April 1997, Parliament of New South Wales, Legislative Council, Standing Committee on Social Issues.

[6] Subject to committee approval: Beverly Duffy, Senior Project Officer, NSW Legislative Standing Committee on Social Issues, personal communication, 17 October 1997.

[7] Recognition, Rights and Reform: Report to Government on Native Title Social Justice Measures, Aboriginal and Torres Strait Islander Commission, Canberra, 1995, pp 49–51.

[8] Going Forward: Social Justice for the First Australians, A Submission to the Commonwealth Government, Council for Aboriginal Reconciliation, Canberra, 1995, pp 41–43.

[9] Section 51(xxvi) of the Commonwealth Constitution. See Indigenous People and the Constitution, Australian Reconciliation Convention May 1997, Issues Papers, Constitutional Centenary Foundation, Australian Government Publishing Service, Canberra, 1997.

[10] See comments of 17 October 1997 by the National Indigenous Working Group on Native Title and Mr Peter Yu, reported at page 17 of this issue.

[11] Including ss7, 8, 9, 24, 29, 30, 34 and 122 and relevant case law below. Amendments would need to be considered for the Commonwealth Electoral Act 1918 (Cth) and the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth).

[12] See Western Australia v Commonwealth (the Territorial Senators case) [1975] HCA 46; (1975) 134 CLR 201; Queensland v Commonwealth (Second Territorial Senators case) [1977] HCA 60; (1977) 139 CLR 585.

[13] Attorney–General (Cth); ex rel McKinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1; McGinty v Western Australia [1996] HCA 48; (1996) 134 ALR 289. Note the limitations of ss7, 24, 30 and 34 of the Commonwealth Constitution.

[14] See for example ss7A(1)(a), (b) and (c), and 7B(1)(a) of the Constitution Act 1902 (NSW), which require majority voter support in a referenda for relevant constitutional amendments

[15] . Discussion Paper on a Proposed New State Constitution for the Northern Territory, Northern Territory Legislative Assembly, Select Committee on Constitutional Development, Darwin, 1987, pp 30–31; Foundations for a Common Future, Vol 1, Northern Territory, Legislative Assembly, Sessional Committee on Constitutional Development, Darwin, 1996; Report on Queensland Legislative Assembly Electoral System, Vol 1, Electoral and Administrative Review Commission, Brisbane, 1990. See also Joint Committee on the Northern Territory, Report on Constitutional Development, Parliamentary Papers, Vol 13, Australian Parliament, Commonwealth Government Printer, Canberra, 1978.

[16] The post–Mabo negotiations leading to the Native Title Act 1993 (Cth) resulted from the Federal Labor Government’s willingness to negotiate, rather than from any constitutional or legal recognition of the status of Australia’s Indigenous peoples. The issues of representation and consent remain contested, however. For a discussion of the possible constitutional and political implications of a reinterpreted races power (s51(xxvi)) see ‘The legal status of Indigenous Australians as a continuing Constitutional problem’, Paper presented to the Indigenous Rights, Political Theory and the Reshaping of Institutions Conference, J Clarke, August 8–10, 1997.

[17] Those who oppose the idea of reserved seats also suggest that they might lead to demands byethnic minorities for special representation—although since Indigenous peoples enjoy special human rights status as the prior owners and occupiers of territory under international law, reserved seats for Indigenous people need not create such a precedent. (See for example International Convention on the Elimination of All Forms of Racial Discrimination (1966); International Covenant on Economic, Social and Cultural Rights (1966); International Covenant on Civil and Political Rights (1966); and the draft Declaration on the Rights of Indigenous Peoples.)