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December 2015

This post has been contributed by CRU intern, ARMEN AGHAZARIAN:

Introduction

The debate upon Indigenous Constitutional Recognition has again raised the issue of whether there should be seats reserved for Indigenous Australians in the Commonwealth Parliament. This blog post considers the constitutional issues concerning the legislative implementation of such a proposal in relation to the House of Representatives and the Senate.

Two principles guided the formation of the Commonwealth of Australia – federalism and responsible government. The Senate was envisaged as a House that represented the States, while the House of Representatives was intended to represent the people, making government responsible and accountable through elections. Neither form of representation accommodated the Aboriginal nations that had existed in Australia long before federation. The rejection of the doctrine of terra nullius must cause us to think again about how representative our parliamentary bodies truly are. If we are to have a national government that governs for both the Australia formed in 1901 and the Australia that has existed since time immemorial, a Parliament representative of both societies is required. What remains a pervasive issue in terms of justice for Indigenous Australians is thus ensuring a Parliament that has a minimum number of Indigenous representatives elected by and for Indigenous Australians.

Current representation

To say that our current arrangements have proven unsatisfactory in achieving this would be an understatement. It is true that some significant strides have been made in recent years in terms of Indigenous representation. In 2010, Ken Wyatt became the first Indigenous Member of the lower house, and recently became the first Indigenous frontbencher. There have so far been four Senators who identify as Aboriginal. However, none of these Senators can be considered as formally representing the collective will and mandate of a substantial portion of the Aboriginal and Torres Strait Islander community.

The Division of Hasluck has an Indigenous population of 2.5% (2011 Census) which means its Member, Ken Wyatt, is accountable to an overwhelming non-Indigenous majority. While the three Senators have broader State-wide electorates, they are still elected on party platforms and represent a majority of non-Indigenous electors (even in the case of the Northern Territory). The issue of Indigenous representation is not only about ensuring that individual Indigenous voices are heard in Parliament, but also about ensuring that there are Indigenous Members that are accountable to a majority of Indigenous electors.

Reserved seats in the House of Representatives

There are numerous avenues for correcting the under-representation of Indigenous Australians in Parliament. In the case of the lower house, there would be, however, considerable difficulties under our current constitutional arrangements if this were sought to be achieved by legislation alone. Electorates cannot cross state boundaries. The constitutionality of non-geographic (sometimes called "functional") lower house divisions is also dubious. This means we cannot have a system of large Indigenous electorates interposed against non-Indigenous electorates as in New Zealand.

Furthermore, the geographic dispersion of Indigenous Australians makes it difficult to create any division outside of the Northern Territory with an Indigenous majority. Even if it were possible, it would still be the case that substantive representation would not be achieved, with one Indigenous representative for a relatively small section of the community. The reality is that true Indigenous representation in the House of Government along the lines of the New Zealand is likely to be achieved only with a constitutional amendment.

Reserved seats in the Senate

There are greater opportunities, however, for a system of reserved Indigenous seats in the Senate, although their constitutionality is not clear-cut. One possible approach would be to establish separate Indigenous and non-Indigenous electorates for the Senate in each state. Each electorate would cover the entirety of the state, and Indigenous Australians would have a choice of being on the general or Indigenous electoral roll. This is essentially the system that currently operates in New Zealand.

Section 7 of the Commonwealth Constitution provides that:

The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.

The Commonwealth Parliament therefore has the power to provide that in each State there be two different electorates – one for Indigenous electors and another for non-Indigenous electors – covering the same geographical areas. The constitutional problem, however, would be whether this would produce a Senate “directly chosen by the people”.

The High Court held in A-G (Commonwealth); Ex Rel McKinlay v Commonwealth in 1975 that “directly chosen by the people” does not require an equality of numbers across electorates. Nonetheless, it did accept that the Constitution imposes a system of representative democracy and that while this is descriptive of a spectrum of choices, the spectrum has finite limits. The question is whether the division of each State into Indigenous and non-Indigenous electorates for Senate elections would fall off the end of the acceptable spectrum.

Representative democracy and “chosen by the people”

In the ordinary course, six Senators are elected for each State at every half-Senate election, taking office on the following 1 July. If one of those Senators were elected by the Indigenous electorate and five by the non-Indigenous electorate, that would mean that as little as 2% of the electors in a state would in most cases elect more than 16% of the Senators.

The principle of "one vote, one value" has never, however, applied to the Senate. The value of a vote of a Tasmanian is proportionately greater than that of a Victorian in achieving representation in the Senate, due to each State having equal numbers of Senators regardless of population.

The Senate has also historically been subject to political malapportionment. In the early 20th century, the voting system resulted in the winning political party unduly dominating the Senate. In 1914, for example, the Australian Labor Party won 86% of the Senate seats in the half-Senate election with only 52% of the popular vote and in 1917 the Nationalist Party won 100% of seats at the election, with 55% of the popular vote (http://elections.uwa.edu.au). The extreme nature of the results led to the introduction of proportionate representation, resulting in a more politically representative Senate.

In McKinlay and later, McGinty v Western Australia, the issue concerned geographic malapportionment, with rural electorates obtaining greater representation than they would on a population basis. While the High Court did not accept that there was a constitutional requirement of "one vote, one value", the Justices recognised that there were limits to the amount of malapportionment that would be permissible. The question here is whether reserved Indigenous representation in each state would result in malapportionment to the extent that the Senate could not be said to have been “chosen by the people.”

The approach of McHugh J in McGinty was to ask whether a limitation on Parliament’s power to determine boundaries, divisions and voting systems was “necessary” to preserve representative democracy. That is, if the drawing of Indigenous electorates with a large voting share were to be repugnant to some necessary component of representative democracy, it would be unconstitutional. In McKinlay, McTiernan and Jacobs JJ both noted that “the people” have to be regarded “collectively as a unity.” Can “the people” be constituted of separate and distinct communities? On a strict reading of their dictum, the answer would be no. On the other hand, Stephen J also commented in McKinlay that “it is quite apparent that representative democracy is descriptive of a whole spectrum of political institutions, each differing in countless respects yet answering that same generic description.” Could it be said that there are enough international examples such that a system where Indigenous peoples vote as an electorate could be considered a part of representative democracy?

These are the questions that really need to be asked if the prospect of Indigenous seats were ever close to becoming a reality, but the strong precedent for Indigenous seats across the world suggests that Indigenous seats would fit into that spectrum of representative democracies identified by Stephen J. The strong deference given by the High Court towards Parliament in McGinty and McKinlay with respect to determining the electoral system, provided that representative democracy is preserved, indicates some promise for the prospect of Indigenous Senate seats.

Finally, the High Court in Roach v Electoral Commissioner and Rowe v Electoral Commissioner has identified an evolutionary aspect to representative government, which is progressing towards the maximisation of participation by the people in elections. The question would then be whether the reduction in proportionate voting power and representation of one sector of the people, in favour of the increase in proportionate voting power and representation of another sector of the people, would be consistent with this evolutionary approach towards the development of representative government. The High Court in Roach and Rowe only addressed participation, not voting power and representation, but its evolutionary theory might be extended into this area if a legislative proposal for reserved Indigenous Senate seats were implemented.

Conclusion

The establishment of reserved Indigenous seats is about giving our first nations the ability to express their collective will in Parliament. The Constitution, however, presents some real difficulties in this regard, largely due to the uncertainty regarding the meaning of “chosen by the people” and whether the Parliament can justifiably draw non-geographic divisions, increasing and decreasing the proportionate representation of sectors of “the people”. The uncertainty is exacerbated by the fact that the power of Parliament to draw Senate divisions has never been exercised, with every state still voting as one electorate.

While Roach and Rowe brought new restrictions on Parliament’s ability to restrict voting rights, they did not address restrictions on Parliament’s power to determine the make-up of electorates. McGinty and McKinlay thus still hold true with regard to malapportionment, and suggest the High Court will give strong deference to Parliament in setting up the voting method and the drawing of divisions. Only if what Parliament does is repugnant to representative democracy will it be unconstitutional. However, if anything has been shown by the election cases, it’s that representative democracy is a very flexible concept. Given international precedent for reserved Indigenous and minority seats in many robust democracies, such as the New Zealand, India and Norway, it’s hard to say reserved Indigenous seats would in any way diminish representative democracy.

SUGGESTED CITATION: Armen Aghazarian, 'Reserved Indigenous Seats in the Commonwealth Parliament: Potential Models and Constitutional Issues' Constitutional Critique, 14 December 2015 (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).