‘Chosen by the People’? how Federal Parliamentary Seats Might be Reserved for Indigenous Australians without Changing the constitution
| Author | John Chesterman |
| DOI | 10.22145/flr.34.2.2 |
| Published date | 01 June 2006 |
| Date | 01 June 2006 |
| Subject Matter | Article |
'CHOSEN BY THE PEOPLE'?
HOW FEDERAL PARLIAMENTARY SEATS MIGHT BE
RESERVED FOR INDIGENOUS AUSTRALIANS WITHOUT
CHANGING THE CONSTITUTION
John Chesterman*
The silence of the Constitution on many matters affecting our system of representative
democracy and responsible government has some positive consequences. For example, if
then current ideas as to the electoral franchise had been written into the Constitution in
1901, our system might now be at odds with our notions of democracy.
Chief Justice Murray Gleeson, 2004.1
One notable outcome of the 2004 federal election is that no Indigenous Australian
was elected to federal Parliament. Since July 2005, when Aden Ridgeway's term as
Senator expired, there have been no Indigenous Australians among the 226 members
of the national Parliament. This article explores briefly why this is the case, and then
moves to consider the viability of Australia adopting a quota system whereby
'dedicated' or 'reserved' seats of Parliament would be created for Indigenous
Australians.
Even though lobbying on it dates back over 70 years, relatively little scholarly
attention has been paid in Australia to this issue. The one significant exception to this
is an article in 2001 by Alexander Reilly, which articulates in detail why the call for
reserved seats for Indigenous Australians 'must be taken seriously as a matter of
democratic theory'.2 In addition to Reilly's article, two brief articles in 1997 canvassed
the possibilities and limitations of the idea,3 and there have been several other
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* John Chesterman, Department of Political Science, University of Melbourne. I would like to
thank the anonymous referees of this journal, in addition to Brian Costar and Greg
Gardiner, for providing very helpful comments on a draft of this article, and I also thank
Catherine Joyce, whose interpretation of s 29 of the Constitution was integral in developing
some of the models discussed. The general argument canvassed in this paper was first
broadly put by me in a newspaper article prior to the 2004 federal election: ‘Give
Aborigines Their Own Seats’, The Age (Melbourne), 25 September 2004.
1 Mulholland v Australian Electoral Commission (2004) 220 CLR 181, 189.
2 Alexander Reilly, 'Dedicated Seats in the Federal Parliament for Indigenous Australians:
The Theoretical Case and its Practical Possibility' (2001) 2 Balayi: Culture, Law and
Colonialism 73, 76.
3 See Johanna Sutherland and Wynne Russell, 'Reserved Seats for Indigenous Australians?'
(1997-8) 4 Indigenous Law Bulletin 13; Georgina McGill, Reserved Seats in Parliament for
Indigenous Peoples — the Maori Example, Australian Parliamentary Library Research Note 51
262 Federal Law Review Volume 34
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mentions of it in academic journals, including by experts on dedicated seats in other
jurisdictions, most notably, Catherine Iorns Magallanes.4 The issue has also been
discussed in reports at State and federal level that I shall consider shortly.
This article will briefly rehearse the philosophical justifications for reserving
Indigenous parliamentary seats, which have been well described by Reilly, but it will
then pay particular attention to investigating the apparent constitutional constraints
that have historically been raised over the past 70 years whenever the idea of set seats
has received considered attention. Reilly and others have looked briefly at this issue,5
but here I will tread new ground in drawing on archival material to describe the
reasons given by various federal governments in rejecting the idea. I will then evaluate
the ongoing significance of these constitutional arguments, before suggesting six
different models by which reserved seats might be established without changes being
made to the Constitution.
INDIGENOUS PARLIAMENTARY REPRESENTATION
There have only ever been two Indigenous federal parliamentarians. Neville Bonner,
the first, represented the Liberal Party in the Senate between 1971 and 1983,6 and Aden
Ridgeway represented the Australian Democrats in the Senate between 1999 and 2005.
Recently Mal Brough, who is now the Indigenous Affairs Minister, revealed that he
may have some Indigenous heritage, but he does not identify himself as an Indigenous
Australian.7 There has never been an Indigenous member of the House of
Representatives, and there has never been an Indigenous federal politician
representing the Australian Labor Party.
The odds have never favoured Indigenous people being elected to federal
Parliament simply on the vote of Indigenous Australians. At around 2.4 per cent of the
Australian population,8 and geographically spread out, Indigenous people are a
negligible voting bloc who, even if they voted as one, would be unable to influence
more than a couple of lower house electorates, and possibly the Senate result in the
Northern Territory.9 Even the most inventive drawing of electoral boundaries, which
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(June 1997) <http://www.aph.gov.au/library/pubs/rn/1996-97/97rn51.htm> at 30
September 2004.
4 See, for example, Catherine Iorns [Magallanes], 'Dedicated Parliamentary Seats for
Indigenous Peoples: Political Representation as an Element of Indigenous Self-
Determination' (2003) 10 Murdoch University Electronic Journal of Law [45]–[71]
<http://www.murdoch.edu.au/elaw/issues/v10n4/iorns104nf.html> at 22 August 2005;
Geoffrey Brahm Levey, 'The Political Theories of Australian Multiculturalism' (2001) 24
University of New South Wales Law Journal 869, 877.
5 Reilly, above n 2, 97–102; Sutherland and Russell, above n 3.
6 Angela Burger, Neville Bonner: A Biography (1979), 81–2. See also Australian Broadcasting
Corporation, Neville Bonner <
http://www.abc.net.au/btn/australians/bonner.htm> 21 at
September 2004.
7 'Minister Identifies with New Portfolio', Weekend Australian (Sydney), 28-29 January 2006, 1.
8 Australian Bureau of Statistics, Web Site Indigenous Statistics, Population Information – Size
<http://www.abs.gov.au/Websitedbs/D3310116.NSF/cd7fca67e05fa605ca256e6a00171f24
/646d7f493235b4f8ca256ef600212e19!OpenDocument> at 21 September 2004.
9 It is worth noting that the extent of their geographic dispersal would not always have led
to Indigenous people as a bloc having such minimal electoral impact, had the Australian
Constitution and electoral laws not been specifically racist. Brian Costar has noted that, at
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