Designated Indigenous Seats in the Senate

Australia is a representative democracy which, despite those fine words, has dominated Aboriginal people to such an extraordinary degree for the last two centuries that Aboriginal disadvantage is a product of that domination. All Aboriginal policy is decided by white Australia and enforced by white institutions. No wonder we suffer.

White Australia wouldn’t like foreigners deciding what is good for them, so why should we agree to others deciding for us?

The referendum has been and gone, but the core issue about who decides Aboriginal policy remains, as does the question of what that policy is. The referendum was a disaster all round. To install indigenous peoples into the white man’s constitution, but in a tokenistic way (advisory capacity) endorsed the right of whites to decide indigenous policy. The campaign was effectively anti-Aboriginal sovereignty. I saw it as a throwback to 1950s policy where indigenous peoples had to assimilate. It was certainly taking Aboriginal policy in a more conservative direction than the last 40 years or so.

For example, in a submission to the 1983 Senate Standing Committee’s Two Hundred Years Later inquiry, the Central Australian Organisations stated: ‘We have never conceded defeat and will continue to resist this ongoing attempt to subjugate us’ and asserted sovereignty over all Australia still resided with the Aboriginal people.

Much earlier than that, as historian Mark McKenna in Moment of Truth (Quarterly Essay) recalled, eighty-year-old Jimmy Clements and John Noble, two Wiradjuri elders walked over 150 kilometres from Tumut in southern New South Wales in 1927 to attend the opening ceremony at Parliament House in the presence of the Duke and Duchess of York. They claimed sovereignty over the Federal territory. One year later, on behalf of the Aborigines Progressive Association, Fred Maynard wrote to the Royal Commission on the Constitution of the Commonwealth to remind the nation’s leaders that the constitution and laws that governed the lives of “Aborigines … were an insult to the intelligence of our people.” His comment is as pertinent today as it was then.

The three choices on policy are: Aboriginals have full decision-making power on Aboriginal policy; or we share policy-making power; or we remain permanently powerless as advisers. The latter should be rejected, if only because the consequence of it is disadvantage.

Full rights over policy affecting Aboriginals (through, for example, being constituted as a seventh state of Australia), or the sharing of power (by vesting authority in communities to decide on health, housing, education, policing, land use and planning, and having designated seats such as New Zealand has with the Māori), can make all the difference. As a people, we must be treated as a collective, not as individuals being assimilated.

New states of Australia were contemplated by the founders of the Australian Constitution. They provided a whole section to the topic, giving constitutional power to a federal parliament to establish new states. John Howard relied on the power in 1998 when the NT wanted to become a new state of Australia but failed for lack of Aboriginal support.

Nor is Aboriginal statehood a recent idea. David Unaipon, the S.A. Aboriginal man whose face appears on the $50 note, appeared before a royal commission in 1926 into the treatment of Aboriginal people. He advocated a model Aboriginal state be set up in central and northern Australia. Whether his proposal was the reason he was subsequently arrested on vagrancy charges, I do not know. He must have been aware that section 121 of the constitution provides for the Federal Parliament to establish new states.

Neither power-sharing through Senate seats nor a seventh state requires any referendum. All that is required is majority of federal parliamentarians voting in favour. That calls for leadership from all political parties—to acknowledge the dark history of white/black relations and give Aboriginals the same self-determination that Britain gave Australia in 1901.

Vesting authority in local Aboriginal communities gives the people tools to overcome dysfunction where it occurs, revives community integrity and enables people to plan for a healthy and vibrant Aboriginal society.

Six designated Senate seats

It is all very well to say that Aborigines can vote and stand for election in the same way as others do. But apart from a few electorates in northern Australia, the numbers of Aboriginal voters in electorates makes it mathematically impossible for Aboriginals to elect an Aboriginal to parliament. I pointed out the unfairness of geographic electorates bounded by fences, properties and rivers—none of which vote, people do—in my 2016 book Treaty and Statehood: Aboriginal Self-Determination. Participation in elections implies fairness, but there is no fairness where electorates are made up of around 90,000 voters with Aboriginals constituting 3 per cent, or 3,000 voters, as occurs in NSW.

Each state elects twelve senators. If one each of these Senate seats were reserved for Indigenous people elected by Indigenous people, the result would be six Indigenous senators out of 76, a proportionate number for power-sharing.

The difference between these six senators and the ten Indigenous people currently in the federal parliament is that the six would have greater, if not complete, freedom to agitate for their people. That is not to say the ten there now do not advocate for their people. But those ten are obliged to always toe the party line (Senators Neville Bonner, Liberal, and Lidia Thorpe, Greens, are examples of two Aboriginals who clashed with their parties on policy and became Independents). Aboriginals elected by their own people would be accountable directly to their own people, and not to the party faithful who voted them into the parliament. As the NSW Aboriginal Land Council argued to a state enquiry in 1998, designated seats would be a democratic improvement as they would allow Aborigines inside the parliament to inform and educate other parliamentarians and guide them towards real outcomes for the benefit of Aboriginal communities. It would, the Land Council said, avoid the present party political polarisation of Aboriginal issues.

Section 7 of the constitution provides that senators be ‘directly chosen by the people of the State’, voting as one electorate ‘until the Parliament otherwise provides’. The key phrase ‘until the Parliament otherwise provides’ gives the federal parliament enormous scope to make new arrangements within that political framework.

Under this constitutional authority, parliament gave women the vote in 1902 (but not Aboriginals), changed minimum voting ages, increased the number of senators and granted the two Territories Senate representation.

The High Court’s attitude towards possible designated seats can be gleaned from several key cases where it showed intolerance to attempts to restrict the franchise while giving great latitude to parliaments expanding the franchise. In the 2004 Mulholland case, judges Gummow and Hayne pointed out that ‘The recurrent phrase in the Constitution “until the Parliament otherwise provides” accommodates the notion that representative government is not a static institution’. Chief Justice Gleeson added, ‘the constitution gives Parliament a wide range of choice’.

The constitution allows for designated seats. Will the politicians create them?

We Have A Voice: It’s Not Listened To

Michael Mansell, Sep 2023

I might shudder at the thought that after all that has happened to Aboriginal people, the best remedy on offer is an advisory body.

About the author

Michael Mansell

Michael Mansell is an Aboriginal lawyer who practised law from1984 to 1996 and retired from the Tasmanian Aboriginal Centre in 2012. He is currently Chairman of the Aboriginal Land Council. While still active in the Aboriginal struggle, he is now
spending more time writing on solutions for Aboriginal people. His book Treaty and Statehood: Aboriginal Self-Determination was published by Federation Press in 2016. Michael attended the Uluru gathering in 2017 and is committed to seeing the outcomes of Uluru in full—Sovereignty, Truth-telling and Treaty—become official policy.

More articles by Michael Mansell

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