Chesterman, John --- "Chosen by the People'? How Federal Parliamentary Seats Might be Reserved for Indigenous Australians Without Changing the Constitution" [2006] FedLawRw 9; (2006) 34(2) Federal Law Review 261
[*] 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] HCA 41; (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 (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] UNSWLawJl 72; (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 the turn of the 20th century, if Indigenous people had been enfranchised at Commonwealth level, and if section 127 of the Constitution had required Indigenous people to be included in population statistics, then Western Australia, Queensland and New South Wales would probably have been allotted extra House of Representatives seats (with a corresponding loss of seats from South Australia and Victoria). Moreover, he argues, for a short time 'it is quite possible that there would have been a de facto … Aboriginal seat in each of Queensland and Western Australia'. See Brian Costar, '"Odious and Outmoded"?: Race and Section 25 of the Constitution', in John Chesterman and David Philips (eds), Selective Democracy: Race, Gender and the Australian Vote (2003) 93–4.
[10] This figure includes National and Country Liberal Party members as members of the Coalition. See House of Representatives, List of Members by Political Party <http://www.aph.gov.au/house/members/mi-party.asp> at 12 April 2006.
[11] See Deborah Brennan, 'Women and Political Representation', in John Summers, Dennis Woodward and Andrew Parkin (eds), Government, Politics, Power and Policy in Australia (7th ed, 2002) 277–93.
[12] Australian Electoral Commission, Election 2004: First Preferences by Candidate — VIC <http://results.aec.gov.au/12246/results/SenateStateFirstPrefs-12246-VIC.htm> at 10 April 2006. See also Peter Brent, Time to Scrap the Ticket Vote for the Senate?, Australian National University, Democratic Audit of Australia (2004) <http://democratic.audit.anu.edu.au/papers/200411_brent_above_line.pdf> at 28 July 2006.
[13] Australian Electoral Commission, Election 2004: First Preferences by Candidate- SA <http://results.aec.gov.au/12246/results/SenateStateFirstPrefs-12246-SA.htm> at 10 April 2006.
[14] This figure includes National and Country Liberal Party members as members of the Coalition. See Senate, List of Senators by Political Party <http://www.aph.gov.au/Senate/ senators/homepages/si-party.htm> at 12 April 2006.
[15] See Australian Labor Party, National Platform and Constitution (2004), 291–2 <http://www.alp.org.au/download/now/platform_2004.pdf> at 12 April 2006.
[16] Reilly, above n 2, 88-9.
[17] See Scott Bennett, Aborigines and Political Power (1989) 128. See also ibid 85.
[18] See Noel Pearson, Our Right to Take Responsibility (2000) 11.
[19] For the platform of this group, and an example of the media coverage given to it, see Graham Matthews, 'Indigenous Australians need a voice', Green Left Weekly, (online edition, 22 September 2004) <http://www.greenleft.org.au/back/2004/599/599p13.htm> at 13 October 2004. For the election result, see Australian Electoral Commission, above n 12 .
[20] Reilly, above n 2, 87–9, 96. It is worth noting that one current proposal exists for the creation of a Senate seat for Australians living overseas. See Andrew Leigh, New Voting Rights for the Australian Diaspora, Australian National University, Democratic Audit of Australia (2004) <http://democratic.audit.anu.edu.au/papers/200407_leigh_expat_rep.pdf> at 28 July 2006.
[21] For instance, art 19 of the Draft Declaration on the Rights of Indigenous Peoples (1994) E/CN.4/SUB.2/1994/2/ADD.1 holds that 'Indigenous peoples have the right to participate fully, if they so choose, at all levels of decision-making in matters which may affect their rights, lives and destinies through representatives chosen by themselves' (emphasis added). See also Elliott Johnston, Royal Commission into Aboriginal Deaths in Custody, National Report (1991), vol 2, chap 20; Reilly, above n 2, 91; Iorns [Magallanes], above n 4, [15].
[22] For instance, Commonwealth Electoral Act 1918, section 326 (regarding bribery).
[23] Legislative Council Standing Committee on Social Issues, Parliament of New South Wales, Enhancing Aboriginal Political Representation: Inquiry into Dedicated Seats in the New South Wales Parliament (1998) 21.
[24] See S Glenn Starbird Jnr, Donald Soctomah and Sue Wright, A Brief History of Indian Legislative Representatives, Maine State Law and Legislative Reference Library <http://www.maine.gov/legis/lawlib/indianreps.htm> at 26 November 2004. See also ibid; Iorns [Magallanes], above n 4, [34]–[38].
[25] New Zealand Parliament, Electorate Profiles 2005: Maori Electorates <http://www.ps.parliament.govt.nz/electorate-maori.htm> at 10 April 2006. See also Iorns [Magallanes], above n 4, [17]ff. Since writing this article I have been pointed to an engaging and insightful draft article on New Zealand's Maori seats by Andrew Geddis, entitled 'A Dual Track Democracy? The Symbolic Role of the Maori Seats in New Zealand's Electoral System'. The draft article (on which the author welcomes comments) is available at <http://www.law.ucla.edu/docs/a_dual_track_democracy.doc> at 11 April 2006.
[26] MMP Review Committee, New Zealand House of Representatives, Inquiry into the Review of MMP (2001), 19 <http://www.clerk.parliament.govt.nz/content/20/mmprevw.pdf> at 31 March 2006.
[27] See Elections New Zealand, Reviewing Electorate Numbers and Boundaries <http://www.elections.org.nz/electorates/reviewing_electorates.html> at 10 April 2006. The number of seats in Parliament can exceed 120, where a party wins more electorate seats than its party vote suggests it should.
[28] New Zealand House of Representatives, Maori Members of Parliament from 1868 <http://www.ps.parliament.govt.nz/schools/texts/maorimp.shtml> at 15 December 2005.
[29] Statistics New Zealand, Highlights <http://www.stats.govt.nz/census/2001-census-statistics/2001-maori/highlights.htm> at 28 July 2006.
[30] See New Zealand House of Representatives, above n 28.
[31] MMP Review Committee, above n 26, 46. This is quoted also in Legal, Constitutional and Administrative Review Committee, Queensland Legislative Assembly, Hands on Parliament: A Parliamentary Committee Inquiry into Aboriginal and Torres Strait Islander Peoples' Participation in Queensland's Democratic Processes (2003) 57 (see also 53).
[32] See Marian Sawer, Above-the-Line Voting — How Democratic?, Australian National University, Democratic Audit of Australia <http://democratic.audit.anu.edu.au/papers/200406_sawer_above_line.pdf> at 28 July 2006.
[33] Elections New Zealand, Two Ticks? Too Easy! – MMP Basics <http://www.elections.org.nz/ mmp/two_ticks_too_easy.html> at 10 April 2006.
[34] MMP Review Committee, above n 26, 20–1.
[35] Ibid 46.
[36] Bain Attwood and Andrew Markus (eds), The Struggle for Aboriginal Rights: A Documentary History (1999) 16, 73.
[37] A copy of Cooper's petition is contained in A431/1, 1949/1591, National Archives of Australia (hereafter NAA), Canberra. The petition is discussed in memorandum from J McEwen, Minister for the Interior, to Cabinet, 1 February 1938, A431/1, 1949/1591, NAA, Canberra. A slightly different form of the petition appears in Attwood and Markus, above n 36, 144. It is worth noting, as Attwood and Markus's documents show (for example at 88 and 115), that some prominent Indigenous people have opposed the idea. See also Bain Attwood, Rights for Aborigines (2003) Chapter 3; Bain Attwood and Andrew Markus (eds), Thinking Black: William Cooper and the Australian Aborigines' League (2004) 6–11, 35–6; Reilly, above n 2, 82.
[38] Opinion of Solicitor-General George S Knowles, 14 January 1938, A431/1, 1949/1591, NAA, Canberra.
[39] Ibid.
[40] Frank McGrath, The Framers of the Australian Constitution: Their Intentions (2003) 197 (see 193–200 on this general point).
[41] J A La Nauze, The Making of the Australian Constitution (1972) 68 (the note).
[42] Letter from W Ferguson, Aborigines Progressive Association, to Governor-General of Australia, 30 August 1940, A431/1, 1949/1591, NAA, Canberra.
[43] Letter from Shadrach James, Aboriginal Progressive Association of Victoria, to Prime Minister Chifley, 21 February 1949, A432, 1949/258, NAA. James is on record as favouring the idea as far back as 1930: see Attwood and Markus, above n 36 , 142.
[44] Letter from Prime Minister Chifley to Shadrach James, 28 March (specific date unclear on document) 1949, A432, 1949/258, NAA.
[45] Letter from Doug Nicholls, Australian Aborigines' League, to Prime Minister Chifley, R G Menzies and A W Fadden, 1 July 1949, A431/1, 1949/1591, NAA, Canberra. See also Attwood and Markus (eds), above n 36, 164–5; Reilly, above n 2, 82–3.
[46] See John Chesterman and Brian Galligan, Citizens Without Rights: Aborigines and Australian Citizenship (1997), 157–62, 169–77.
[47] Letter from Doug Nicholls, Australian Aborigines' League, to Prime Minister Chifley, 6 August 1949, A431/1, 1949/1591, NAA, Canberra.
[48] Letter from Kim Beazley Snr to Prime Minister Chifley, 14 September 1949, A431/1, 1949/1591, NAA, Canberra.
[49] Letter from Prime Minister Chifley to Doug Nicholls, date unclear (but in response to Nicholls' letter of 6 August 1949), A431/1, 1949/1591, NAA, Canberra.
[50] Commonwealth House of Representatives, Report from the Select Committee on Voting Rights of Aborigines, part 1, Parl Paper (1961) vol 2, 8.
[51] See Reilly, above n 2, 83. See also Attwood and Markus, above n 36, 300.
[52] See Peter Andren, 'Thoughts on the Treaty in Australia' [2000] IndigLawB 45; (2002) 5 Indigenous Law Bulletin 8, 9.
[53] ATSIC, Recognition Rights and Reform: A Report to Government on Native Title Social Justice Measures [4.27] <http://www.atsic.gov.au/issues/indigenous_rights/social_justice/ recognition/1.asp> at 15 October 2004; see also Legal, Constitutional and Administrative Review Committee (Qld), above n 31, 53.
[54] Council for Aboriginal Reconciliation, Going Forward: Social Justice for the First Australians, Recommendation 15. See also McGill, above n 3.
[55] For example, Council for Aboriginal Reconciliation, Recognising Aboriginal and Torres Strait Islander Rights (2000) Chapter 3 <http://www.austlii.edu.au/au/other/IndigLRes/car/2000/9/pg6.htm> at 1 October 2004. See also Legal, Constitutional and Administrative Review Committee (Qld), above n 31, 53.
[56] See Sutherland and Russell, above n 3.
[57] John Chesterman, Civil Rights: How Indigenous Australians Won Formal Equality (2005) 159–60.
[58] Legislative Council Standing Committee on Social Issues (NSW), above n 23, especially Chapters 9 and 10. See also Iorns [Magallanes], above n 4 [46]–[52].
[59] Legal, Constitutional and Administrative Review Committee (Qld), above n 31, 53, 56. The constitutional issues are well canvassed in the submission (no. 30) to the committee from the Gilbert and Tobin Centre of Public Law, University of New South Wales, 10 April 2003 (written by George Williams, Sean Brennan and Nicholas Hume) <http://www.gtcentre.unsw.edu.au/publications/docs/pubs/2003_queenslandIndigenousRep.doc> at 28 July 2006. See also Iorns [Magallanes], above n 4, [53]–[67].
[60] See Ian McAllister, 'Elections Without Cues: The 1999 Australian Republic Referendum', (2001) 36 Australian Journal of Political Science 247.
[61] See further Jeremy Webber, 'Multiculturalism and the Australian Constitution' [2001] UNSWLawJl 73; (2001) 24 University of New South Wales Law Journal 882, 892.
[62] Gerard Carney, 'The High Court and the Constitutionalism of Electoral Law', in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 170, 171.
[63] Attorney-General (Cth); Ex Rel McKinlay [1975] HCA 53; (1975) 135 CLR 1 ('McKinlay').
[64] McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 ('McGinty').
[65] Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302.
[66] Mulholland [2004] HCA 41; (2004) 220 CLR 181.
[67] Australian Capital Television v Commonwealth [1992] HCA 45; (1992) 177 CLR 106.
[68] Carney, above n 62, 170–85.
[69] Mulholland [2004] HCA 41; (2004) 220 CLR 181, 206 (the quotations are from Justice Dawson's decision in McGinty).
[70] Mulholland [2004] HCA 41; (2004) 220 CLR 181, 189.
[71] Ibid.
[72] See further Chesterman and Galligan, above n 46, 182–6.
[73] Commonwealth House of Representatives, above n 50, 8.
[74] Opinion of K H Bailey, 7 June 1961, in ibid, appendix vi, 42 (original emphasis). See also ibid 8. My thanks here to Russell McGregor, who reminded me of the Select Committee's consideration of this issue.
[75] Opinion of K H Bailey, 3 August 1961, in ibid, appendix v, 40–1 (original emphasis). See also ibid 8.
[76] Opinion of Geoffrey Sawer, 28 July 1961, in ibid, appendix iv, 38.
[77] P H Lane, 'Commonwealth Electors' Voting Rights', (1968) 42 Australian Law Journal 139, 140.
[78] McKinlay [1975] HCA 53; (1975) 135 CLR 1, 26.
[79] Ibid 19.
[80] Ibid 20.
[81] McKinlay [1975] HCA 53; (1975) 135 CLR 1. See submission (no. 30) from the Gilbert and Tobin Centre of Public Law, University of New South Wales, to the Legal, Constitutional and Administrative Review Committee (Qld), above n 59.
[82] Western Australia v Commonwealth [1975] HCA 46; (1975) 134 CLR 201; Queensland v Commonwealth [1977] HCA 60; (1977) 139 CLR 585. See Peter Hanks, Australian Constitutional Law: Materials and Commentary (1994) 31–8.
[83] This suggestion was made to me during question time after I had presented a talk on this topic to the Rotary Club of Balwyn, 15 February 2005.
[84] See Australian Bureau of Statistics, above n 8.
[85] See Australian Bureau of Statistics, Web Site Indigenous Statistics, Population Information – Changes <http://www.abs.gov.au/websitedbs/d3310116.nsf/cd7fca67e05fa605ca256e6a00171f24/844488cb18e68a61ca256ef600223f17!OpenDocument> at 5 October 2004. The general population figures (drawn on to give percentages of population) come from Australian Electoral Commission, Redistributions <http://www.aec.gov.au/_content/ Why/redistributions/index.htm> at 28 July 2006.
[86] It is worth noting that these eligibility criteria have not been without their problems. For instance, there has been much debate regarding the eligibility of people to vote and stand in ATSIC elections in Tasmania in recent years. See Will Sanders, 'The Tasmanian Electoral Roll Trial in the 2002 ATSIC Elections' (2004) 63 Australian Journal of Public Administration 51.
[87] John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (1976 [1901]) 418.
[88] Stanley Bach, Platypus and Parliament: The Australian Senate in Theory and Practice (2003) 144, 156.
[89] Quick and Garran, above n 87, 448.
[90] See Australian Electoral Commission, Redistributions, above n 85.
[91] Commonwealth Electoral Act 1918, section 59 and passim.
[92] See Australian Electoral Commission, Redistributions, above n 85.
[93] See, for instance, Sanders, above n 86.