Research Paper no. 23 2008–09
Dedicated Indigenous representation in the Australian
Politics and Public Administration Section
18 March 2009
There are comparatively high levels of Indigenous representation
in Australian state and territory parliaments, but none in the
current federal parliament. The proposed National Indigenous
Representative Body is unlikely to change this situation. A
possible response is to consider dedicated Indigenous
representation in Parliament. This has been a feature of the New
Zealand parliament for close to 150 years, but in Australia it has
remained a matter for discussion. This paper:
- describes current levels of Indigenous parliamentary
representation in Australia
- compares levels of parliamentary representation for Indigenous
people in Australia with those of Maori representation in New
- details arrangements that have increased levels of Maori
representation in New Zealand, including dedicated seats
- canvasses arguments for and against dedicated seats
- identifies obstacles to the creation of dedicated seats in
- considers future possibilities for Indigenous parliamentary
representation in Australia.
Proposals for dedicated seats in Australia are subject to both
compelling arguments and considerable obstacles. The experience in
New Zealand shows that dedicated seats do more than equalise the
‘amount’ of parliamentary representation. Rather, they
are a concrete expression of a formal relationship between
Indigenous and non-Indigenous constituencies. In Australia, where
such a relationship is yet to be defined, dedicated seats could
play a key role in the development of such a relationship.
There is a significant imbalance in the
parliamentary representation of Indigenous and non-Indigenous
people in Australia. In Australia persons who identify as
Indigenous now make up 2.5% of Australia’s total
federal parliamentary representation were to reflect this, there
would be in the order of three Indigenous members in the House of
Representatives and one senator. However, there have been no Indigenous
representatives in the federal parliament since the end of
Australian Democrat Senator Aden Ridgeway’s term in
2005, and the only
other Indigenous federal representative to date has been Liberal
Senator Neville Bonner, who left Parliament in 1983.
This absence is highlighted by relatively high numbers of
Indigenous members in contemporary state and territory parliaments.
Until the 2008 Northern Territory election, the national count of
Indigenous elected representations in parliament was at a
high-point of 10 seats in total: six in the Northern
Territory, two in Western Australia, one in Tasmania, and one in
New South Wales. However, with four seats now held by Indigenous
members in the Territory, the total has fallen to eight. There are
two jurisdictions—New South Wales and the Northern
Territory—where Indigenous members are ministers of
government (see Appendix).
There is, then, a disparity between levels of Indigenous
representation in different spheres of government. There is also an
absence of either a treaty, or a formal body, that defines the
relationship between Indigenous and non-Indigenous
Australians. However, there are signs that change is
possible. The present federal government has undertaken to
establish a National Indigenous Representative
delegates to the Australia 2020 Summit demonstrated
continuing sentiment in favour of a treaty between Indigenous
people and the Australian government. These are all measures intended to
articulate the relationship between Indigenous and non-Indigenous
Australians more adequately. Dedicated Indigenous representation in
federal parliament is a further means by which the relationship may
be improved, either on its own or, more likely, in combination with
these other measures. For the sake of brevity, these are
referred to here as ‘dedicated seats’, whether they are
envisaged for the lower or the upper chamber of Parliament.
Discussion of Indigenous representation in general—and
dedicated seats in particular—last reached a high-water mark
in Australia in and around 1997: the year of the Reconciliation
then there has been a continuous thread of discussion on the
possibility of dedicated seats in Australia. More recently, dedicated seats emerged
as a subject for discussion at the 2020 Summit. At the same time, the
effects of changes in New Zealand have continued to unfold, and
Indigenous representation in Australian state and territory
parliaments has increased. These factors, together with renewed
discussion of an Australian republic, and expectations of policy
change on Indigenous affairs, prompt further consideration.
Experiences in other countries suggest that mainstream
parliamentary systems rarely display a strong record on
incorporating Indigenous peoples into their process. To address
this, four main approaches have been developed:
- designated seats for Indigenous peoples, such as those adopted
by New Zealand for Maori and the US State of Maine for First
- separate Indigenous parliaments, such as those adopted by
Finland, Norway and Sweden for Sami peoples
- electoral reform making parliament more accessible to
minorities, such as that adopted by New Zealand and
- an approach incorporating education to the wider public about
Indigenous issues and positive discrimination in relation to the
preselection of Indigenous candidates, such as those proposed by
successive reports in Australia.
There have been various critiques of these approaches. Some
Australian Indigenous speakers have argued that both separate
assemblies and dedicated Indigenous seats are likely to be unduly
subordinate to the mainstream political process. This is borne out in practice:
such separate parliaments that do exist, such as the Sami
parliaments, have circumscribed powers limited, substantially, to
an advisory role. Observers suggest that such bodies are likely
‘to be ignored’. These limitations on power are also a feature of
the way in which dedicated Indigenous seats have been created in
the Maine legislature. Indigenous critics of dedicated seats in Australia
argue that there could never be a sufficient number of Indigenous
seats to shield them from the influence of the major
either case, there appears to be a tension between parliamentary
representation created by virtue of ethnic status and that which
occurs through the mainstream political process. It is difficult to
give these two forms of parliamentary representation equal status
without significant departures from the principle of ‘one
vote, one value’.
In New Zealand, dedicated seats and, more recently, electoral
reform, appear to have avoided such departures. Together, they have
proved effective in increasing Indigenous representation in
parliament. In Australia, the approach which is generally proposed
is an assisted gradual increase in Indigenous participation in the
political process. Such an approach may be a practical one in view
of forbidding constitutional constraints,but to date has not led to sustained
change. This leaves us with the question of whether we should be
optimistic about Indigenous representation in the states and
territories or concerned about its absence in the federal
parliament. If ‘concerned’ is the answer, questions
remain as to whether Australia should adopt a deliberate course of
action and adopt dedicated seats within a framework of electoral
reform, or continue to rely on a gradualist approach.
Like Australia, New Zealand has a substantial population of
Indigenous people. Unlike Australia, New Zealand has had dedicated
parliamentary seats for Indigenous representatives since the 1860s.
New Zealand achieved parity between the proportion of Maori in its
population and the proportion of Maori representatives in
parliament following the 2002 national elections.
Dedicated seats for Maori were introduced by the Maori
Representation Act of 1867. The creation of Maori seats occurred at the same
time as a broadening of suffrage among Maori. At a time when Maori
greatly outnumbered non-Maori, dedicated seats allowed the
political power of Maori to be constrained, limiting their vote to
the Maori electoral roll and the four Maori seats alone.
This ambiguous status quo persisted until the 1986
Royal Commission on the Electoral System, after which there was a
transition to Multiple Member Proportional voting (MMP) in national
elections. The first vote under MMP occurred in 1996, and since
then it has played a significant part in increasing Maori
parliamentary representation. In addition, New Zealand has introduced measures
such as education and affirmative selection by political
parties. As a
result of these changes, the present system of parliamentary
representation in New Zealand consists of a combination of
measures, which comprise:
- dedicated seats for Maori, with the number of seats, calculated
as a proportion of the Maori population—currently eight
- Multiple Member Proportional voting (MMP) for a proportion of
seats in parliament. For the 2005 election there were 52
‘party list’ (proportional) seats and 69
‘electorate’ (first-past-the-post) seats and
- voters nominating to be on either Maori or
‘General’ electoral rolls.
Under MMP, Parliament in New Zealand is made up of a combination
of ‘electorate seats’ (which include dedicated Maori
seats) and an approximately equal number of ‘list’
(proportional representation) seats. In list seats, political
parties establish a ranking of candidates, and acquire a number of
seats as a ratio of the proportion of the total vote attracted by
This system has some significant effects in raising the
electability of Maori candidates, because ‘identified Maori
electors can vote not just for a Maori representative in their
Maori electorate but … also … for a party that has
other Maori candidates on its list’. Nevertheless, all electors cast two
votes (an electorate vote and a party vote), and electors’
votes have the same weight, whether they are enrolled on the Maori
or general electoral roll.
Because Maori and non-Maori votes are equal in this sense, there
is less of a need to apply a test for voters’ Indigenous
status, since there is no electoral advantage to be gained by
enrolling on either roll. There are, however, safeguards against
electors swapping between rolls for the purpose of producing a
particular short-term outcome. Electors can only change their
enrolment during nominated periods, and this discourages such
behaviour, since voters stay on their nominated roll for some time
a result, the state neither determines nor checks the Indigenous
status of electors. If that were necessary, it could cause
considerable anxiety, as it has in Australia when other approaches
have been contemplated.
The New Zealand system has considerably increased the number of
Indigenous candidates elected to parliament. There has been a
marked rise in numbers of Maori parliamentarians since the
transition from First Past the Post (FPP) to MMP in 1996. In 1993,
in a parliament of 99 seats, there were seven Maori MPs (7.1% of
MPs) and Maori made up 13.0% of the New Zealand population. In 2002, for the first
time, Maori representation in parliament reached the point where it
was consistent with the proportion of Maori in the New Zealand
This was notable because Maori had only been permitted to stand for
general electorate seats from 1967. In 2005, in a parliament of 121
seats, there were 21 Maori MPs (17.3% of MPs) and Maori were 14.7%
of the overall population. Hence, levels of Maori representation in parliament
more than doubled at the first MMP election (1996) and have
increased at a slower rate since.
There has been a diversity of views on the continuance of
dedicated seats for Maori, particularly in the face of the
subsequent effectiveness of MMP in increasing Maori representation
Some non-Maori commentators consider that this has been too
successful. They suggest that a higher rate of Maori representation
in parliament than in the general population warrants the abolition
of the Maori seats. Prior to the recent election, Conservative non-Maori
candidates discussed plans to terminate the seats, but the
emergence, after the election, of the Maori Party as a key member
of the new ruling coalition is thought to have altered these
Election Policy of the Maori Party for the 2008 elections
continued to support dedicated seats, and indeed to extend
opportunities for Maori representation by reviewing arrangements
for general seats which, it argues, are discriminatory.
While a sense of ‘better the devil you know’ has
played a role in Maori sentiment in favour of the retention of the
seats since the 1986 Royal Commission, there has been another
reason in favour of their retention. Maori seats have acquired, for Maori,
a particular significance in relation to the Treaty of
have come to be seen as a means of recognition, and continued faith
with the terms of, the Treaty. That is, they are seen as a formal
expression and guarantee of the continuing viability of the Treaty
and the relationship it describes between Maori and pakeha. Dedicated seats
symbolize ‘a recognition of the position of the Maori people
as a “Treaty partner” in the enterprise of national
government’, and have thus become a ‘treaty
is this distinction between the level and nature
of Indigenous representation in parliament that has significant
implications for the debate on dedicated Indigenous seats in
Australia’s present imbalance in Indigenous parliamentary
representation—higher in the states and territories, absent
in federal parliament—is a relatively new state of affairs.
In the past there was, for the most part, simply an absence of
Indigenous representation across the board. However, particularly
over the last decade, there have been a series of reports and
discussions that have envisaged higher levels of Indigenous
engagement and representation within the mainstream parliamentary
exchanges, among them the Australia 2020 Summit, have
included a persistent thread on dedicated seats, showing that the
idea has retained currency in political debate.
This decade-long round of dialogue begins with influential
documents such as the 1998 report of the New South Wales
Legislative Council Standing Committee on Social Issues,
Enhancing Aboriginal Political Representation. This report
has been a significant point of reference for, and is
representative of, many of the positions presented in subsequent
debate. In general, it avoids proposing dedicated seats. It sees
parliamentary representation for Indigenous people as increasing
through an evolutionary process, rather than deliberate, structural
change, with the exception that it recommends the creation of a
separate Aboriginal Assembly. Otherwise, it proposes: further consultation with
Aboriginal people; a public education campaign on dedicated seats
and the electoral system; the development of action plans by
political parties to increase participation by Aboriginal people;
and support for and expansion of mentoring programs for
Aboriginal people involved in local government.
This approach implies that Australia is ‘not ready’
for dedicated seats, but could become so given a change of public
awareness and sentiment. Consistent with this, when the
Enhancing Aboriginal Political Representation report
describes points for and against dedicated seats, the arguments are
equivocal. Arguments in favour are that dedicated seats
- be a symbolic ‘acknowledgement of Aboriginal people as
the original owners of Australia’
- express the ‘distinct rights’ of Indigenous
- ‘provide a voice for Aboriginal people in
- allow an ‘Aboriginal contribution to decision-making
- be instrumental in overcoming ‘existing barriers to
representation in Parliament’
- lead to better ‘community awareness of Aboriginal
- ‘provide Aboriginal communities with leadership and role
models which could encourage Aboriginal people to become more
Arguments against are that dedicated seats would:
- ‘be seen as undemocratic’
- lead ‘other minority groups to demand dedicated
- deliver ‘limited power to the Aboriginal
- expose Aboriginal Members to pressure from both the Aboriginal
constituency and major political parties
- be ‘tokenistic and patronising to Aboriginal
- ‘marginalise Aboriginal issues and political
representation’, and that they could
- produce ‘backlash and division in the
Many of these points, for and against, are echoed in subsequent
discussion, suggesting that the basic terms of this debate have
remained stable over the past decade. The case in favour of special
rights to representation for Indigenous people, consistent with the
report’s argument on ‘distinct rights’, has been
argued on grounds that:
- Indigenous people are ‘the first inhabitants of
Australia’ and thus have special rights and
- there is precedent for this approach in three other
jurisdictions—New Zealand, the US State of Maine, and
- ‘Systemic disadvantages’ suffered by Indigenous
people due to colonisation have also been considered a basis for
special status. At the Reconciliation Convention of 1997 the
combination of the two grounds—Indigenous people as prior
inhabitants and as experiencing unique disadvantage—was
proposed as a sufficient basis on which to establish a unique right
Other ‘positive’ arguments from the Enhancing
Aboriginal Political Representation report have also been
echoed elsewhere: in particular, that dedicated seats would provide
a point of access for the views of the Indigenous community, and
allow the legislature to reflect, more closely, the composition of
an electoral perspective, some have argued that dedicated seats
would be a good response to obstacles to Indigenous access to
‘normal’ parliamentary seats, given Australia’s
small and widely-distributed Indigenous population. Other arguments
support the ‘developmental role’ attributed to
dedicated seats by the positive arguments of Enhancing
Aboriginal Political Representation. According to this view,
dedicated seats are seen as a means of raising the profile of
Indigenous issues in parliament, and to avail Indigenous
representatives of the unique opportunities and resources afforded
to members of parliament.
Some arguments go beyond this, suggesting that there is
something distinctive in the kind of representation created by
dedicated seats: that it is ‘one thing for an Indigenous
person to be elected to Parliament … [and] another for that
Indigenous person to be elected as a representative of Indigenous
In this view, acceptable forms of Indigenous representation in
parliament hinge not only on numbers of Indigenous members
in parliament, but on whether they are, in formal terms, the
representatives of Indigenous people. Such an approach evokes
tensions between liberal-democratic views which hold that democracy
is primarily ‘about representation of individuals and not
groups’, and collectivist models of ‘identity
representation’. Views in support of this second approach argue that
there are issues which affect the Indigenous community quite
differently than they do the broader electorate. As a result,
Indigenous points of view can only be heard in any genuine sense
where the system allows for direct input by Indigenous people on
matters that affect them. This is the most powerful line of argument in favour of
dedicated seats, borne out in New Zealand by the reluctance of
Maori to relinquish dedicated seats. According to this view,
dedicated seats continue to be signifiers of a formal relationship
with the Crown, even though electoral reform has done more to
increase the number of seats held by Maori
A further area of exploration considers the Australian Senate,
specifically, as a place in which dedicated ‘seats’
might be created. Brennan argues that the Senate is uniquely suited
to this approach in that it already employs a form of proportional
representation, and was originally designed to represent collective
entities: Australia’s states and territories. However, the Senate in
practice no longer performs this function, and a better approach,
now, may be to make the Senate a chamber that could
‘guarantee minorities representation’, including the
Indigenous minority. A similar approach has been proposed for Canada,
arguably a comparable country, both in terms of its relationships
with its Indigenous people, and its political system. Three aspects of this
approach can be considered problematic, however. First, under this
approach, claims made on behalf of Indigenous people are likely to
lose focus when couched in terms of ‘minorities’. The
exact relationship between ‘first peoples’ and other
minorities would need to be articulated. A second difficulty is
that such a change to Australian constitutional arrangements would
require the will of the electoral majority to cede elements of
representation to electoral minorities. Achieving this could be a
formidable, and perhaps forbidding, task. A third obstacle lies in
the section 24 ‘nexus’ provision of the Australian
Constitution, which maintains proportionality between the size of
the Senate and the House of Representatives, which is considered
From a more general perspective, the main objections to
dedicated seats fall into two camps. One centres on perceived
threats to the unity of the liberal state. From the standpoint of
pure liberal democratic doctrine, dedicated seats are
‘special arrangements’, objectionable because they
challenge the indivisibility of the liberal state, which is viewed
as a collectivity of individuals, not of groups. Dedicated seats
represent Indigenous people as a collective, rather than as
individual voters. In this view, special forms of representation for
Indigenous peoples, and subsequent claims by other minorities with
similar aspirations, will lead to the ‘balkanisation’
of Parliament which, under these conditions, would become ‘a
collection of vested interests’. In some quarters, it also raises
concerns that there will be ‘states within states’ and
a threat to the principle of equality before the law.
Arguments of this nature tend to come from a non-Indigenous
perspective. But important critiques also spring from Indigenous
positions which espouse self-determination. The speech of
Indigenous Northern Territory MLA and Minister John Ah Kit to the
Reconciliation Convention of 1997 identifies a number of problems.
The first is ‘to do with old-fashioned political
Because the number of dedicated seats could never be any more than
a minority rump, the Indigenous voice in parliaments would be
‘a “special interest group” appendage to a
coalition’. The anticipated effect is that dedicated seats would be
‘a form of tokenism’. Dedicated seats would also be perceived as a form
of special treatment for indigenous people, contributing to
negative sentiment toward Indigenous people in the wider
result, it is argued, would be a further marginalisation of
Indigenous issues, and a reduction in parliament's focus on, and
responsibility for, Indigenous matters.
A second significant objection is that dedicated seats would
breach ‘the independence and sovereignty of indigenous
Australian nations’. According to this argument, due to the
diversity of Indigenous groups, ‘it would never be possible
to properly elect people who could speak for all the indigenous
nations’. This, he argues, is a consequence of a fundamental
aspect of Aboriginal law: that ‘you cannot speak for or make
decisions over someone else’s country’. As a result,
dedicated seats could be used by non-Indigenous interests to divide
and conquer Indigenous representation, thus nullifying their
In Ah Kit’s view, alternatives to dedicated seats are the
avenue of choice. Indigenous representatives should be preselected
to run for conventional seats, not through positive discrimination
or affirmative action, but through ‘a situation in which
skilled indigenous Australians are not locked out of the political
process by the party machines’. In this sense, Ah Kit’s
argument affirms principles of self-determination while at the same
time advocating a greater engagement, by Indigenous people, with
non-Indigenous structures of governance. It is a position that is
both negative toward dedicated seats and vigorously in favour of
Indigenous peoples’ greater participation in the political
process. Uniquely, it straddles both the imperatives of
self-determination and classic principles of liberal political
thought: engagement with the parliamentary process and careers
being open to talent.
There are, then, a number of arguments against dedicated seats
that have been put forward over the past decade. However,
proponents have also formulated counter-arguments over that period,
and these arguments warrant attention. They include replies to the
first set of liberal-democratic objections discussed above. One
approach has suggested that failure to represent minorities reduces
the overall effectiveness of representation in the liberal state.
From this perspective, special measures to ensure the adequate
representation of minorities, in effect, enhance representation for
all citizens of the State. A second line of argument asserts that collective
entities are already tacitly recognised in current practice in
Australia: the federation already recognises collective entities in
the form of states and territories. The Senate is the formal embodiment
of this, in which the collective entities represented are
Australian states and territories. An analogous view is that Indigenous
governance is also recognised, in a tacit sense, through such
arrangements as Shared Responsibility Agreements, which depend on a
distinct layer of governance provided in and by the Indigenous
community in Australia. In this view, dedicated seats are seen simply as a
desirable formalisation of relationships already in place. Their
explicit recognition would improve the management of these
relationships by giving all parties to such agreements formal
status under law.
It is more difficult to answer Ah Kit’s argument that
representation for the different parts of the Indigenous community
cannot be condensed into a small number of parliamentary seats.
Increasing dedicated seats to represent all distinctive groups
would require such a number of Indigenous representatives that it
would be difficult to implement while maintaining ‘one vote,
one value’. This would, among other things, make it more
difficult to gain the assent of the wider electorate to such a
Kit’s observations raise the possibility that Indigenous
people would be dissatisfied with less than that, and this
represents another obstacle to the implementation of dedicated
Arguments have been considered for and against dedicated seats
in Australia. However there is also the practical dimension to be
considered: whether they could be created. There are a
number of obstacles, of which the most considerable are various
provisions of the Australian Constitution, which is notoriously
difficult to change. Sections 24 and 29 of the Constitution would
appear to close off a number of the avenues through which dedicated
seats might be created.
Section 29 rules out electoral divisions being ‘formed out
of parts of different States’. This section figures
prominently in the history of (unfavourable) legal opinion on the
practical possibilities of dedicated seats. It has been the basis of a succession
of negative opinions. More optimistic advocates rely on the High Court taking
the view that while section 29 prevents combinations of parts of
current state and territories, it is ‘silent’ on the
possibility of considering whole states or territories as electoral
divisions, or whether they could be combined. This approach would require the
High Court to take a so-called ‘robust view’ on section
29, but this is not likely in view of the history of legal
precedent on the matter. The onus would fall on a new claimant to
show why such precedents should be set aside.
Other ‘big bang’ approaches, such as electoral
reform in favour of a widening of Proportional Representation
(beyond the Senate) face similarly forbidding obstacles. Attempts,
for example, to consider the respective strengths of the House of
Representatives and or the Senate as a place where dedicated seats
could be created are currently prevented by the ‘nexus
provisions’ (section 24) of the Constitution. These provide
for proportionality between numbers of seats in the two chambers,
thus preventing the special creation of seats for either of the
On the other hand, more encouragingly, Australia has achieved
reforms in the past: the creation of parliamentary representatives
for Australia territories is an example of changes that took a long
time, but which we now take for granted.
Nevertheless, to achieve the level of change sufficient to
achieve dedicated seats is a significant challenge. Aspects of the
Australian Constitution would need to be changed, beyond those
which are immediately apparent as being needed to implement new
structures in Parliament. Again, this highlights contrasts between
Australia and New Zealand. New Zealand’s lack of a written
constitution, and the existence of two rather than three levels of
government, allow for greater flexibility: there are no
‘states’ rights’ enshrined as there are in the
Australian Constitution. Clearly, these conditions mesh with the existence of a
Treaty between Indigenous and non-Indigenous New Zealanders, and
the relatively long-term existence of Indigenous seats in
parliament, to produce a significantly different set of
There are also other significant obstacles that would be faced
by any campaign to institute dedicated seats for Indigenous people
in Australia. To the restraining influence of the Constitution we
must add significant objections from both the Indigenous
constituency and those concerned with the liberal-democratic
disposition of the state. This may mean that while there are
significant structural obstacles to the implementation of dedicated
seats, there are also distinct challenges involved in generating
sufficient public sentiment with which to overcome them.
While these all appear to be formidable barriers to dedicated
seats, potential avenues remain open. Chesterman considers a range
of possibilities. In his view the Senate appears to be the natural
place for Indigenous representatives because it is elected through
Proportional Representation, and this is known to provide better
outcomes for minorities. However, he suggests that the specific
electoral mechanisms for the Senate mean that Indigenous people
would end up with either more or less than would be proportional to
Better, argues Chesterman, to focus on options that would create
four Indigenous seats in the House of Representatives. This entails
combining states and territories, such as South Australia and the
Northern Territory, into single electorates for these
seats. In this
way, the contemporary Indigenous population would achieve
representation in parliament on the same ratio of seats to
population as those for other seats. This assumes a ‘robust
reading’ of section 29 of the Constitution: that is, that it
only forbids ‘parts’, and not whole states or
territories, being combined to form an electorate.
Another option, less reliant on such a ‘robust
reading’ of the Constitution, would be to create six
Indigenous seats in the House of Representatives. This would result
in a less uniform relationship between each seat and its electorate
population, but would still provide representation for Indigenous
people across the nation without gaps or holes.
For either of these two options to succeed, however, the
Constitution’s nexus provisions would need to be addressed to
allow such seats to be created.
There are strong arguments in favour of dedicated seats in the
Australian federal parliament. Among these are arguments which
suggest that higher levels of Indigenous representation in the
Australian federal parliament would bring a better quality of
representation for the Australian polity as a whole. As or more compelling
is the assertion that dedicated seats would be a tangible
expression of something currently lacking: a formal recognition of
Indigenous people within the Australian political system.
The history of dedicated seats in New Zealand suggests, although
not unequivocally, that such a status is capable of providing
support for higher levels of Indigenous political engagement: for
both voters and parliamentary representatives. Continued Maori support for
dedicated seats is indicative of their significance in this sense.
If this is true, it raises the possibility that improved Indigenous
representation in New Zealand is the result of a synergy between
dedicated seats and electoral reform: a possibility generally not
considered in the literature.
Whatever their virtues, as we have seen, there are at present
significant obstacles to the introduction of dedicated seats in
Australia, due to constitutional constraints and challenges in
achieving appropriate representation for Indigenous people across a
diverse and widely-distributed community. In the face of these,
dedicated seats alone may appear a less promising avenue: either as
a way to increase in Indigenous representation in federal
parliament, or as a means to formalise the relationship between
Indigenous and non-Indigenous Australians. In the immediate-term,
those who wish to see greater Indigenous representation in
Australian parliaments must consider more than one approach.
There are, however, encouraging aspects to the situation. It is
notable, for example, that the present increase in levels of
Indigenous representation in the parliaments of Australian states
and territories has occurred outside of government policy, and this
suggests that more enduring factors may be involved. A
broader analysis of the 2008 Northern Territory election supports
this view: the conservative opposition fielded Indigenous
candidates in a significant number of Legislative Assembly
This shows that elected Indigenous members of parliament represent
only a component of a broader Indigenous engagement with the
parliamentary process and that the true level of engagement is much
higher. In such jurisdictions, political players can no longer
afford to allow the Indigenous vote to be the natural province of
one party alone.
It is too soon to say whether the current levels of Indigenous
parliamentary representation in Australian states and territories
amount to a trend. This adds to uncertainty on whether it will,
over time, carry over into an Indigenous presence in the federal
parliament. Smaller electorates, with higher proportions of
Indigenous voters, make the election of Indigenous parliamentarians
more likely in the states and territories, but in federal
electorates candidates must attract the vote of larger, more
diverse constituencies. On the other hand, higher levels of
Indigenous representation in the state and territory parliaments
have borne out many of the positive arguments of Enhancing
Aboriginal Political Representation: among other things, that
Indigenous Members and Indigenous issues have, as a result
of a greater Indigenous presence in parliament, achieved a higher
profile than ever before. This in itself could make an important contribution to
change. Moreover, non-Indigenous members of parliament have been
known to move between state, territory and federal parliaments, and
Indigenous members could make similar transitions.
In any case, if and when Australia returns to the question of a
republic, opportunities for change will necessarily arise. Given
the notorious difficulty of initiating constitutional change in
Australia under normal circumstances, a transition to a republic
could represent a unique opportunity to resolve structural
impediments to the introduction of dedicated seats. Moreover, if a
persistent trend of increasing Indigenous representation in
Australian jurisdictions were to emerge, this would be a powerful
factor in giving credence to such a plan. It would exert an
influence on both Indigenous and non-Indigenous constituencies
alike—increasing levels of representation would make
continuing disparities less tolerable. At that point, it would be
natural to consider both the formal relationship between Indigenous
Australians and the Commonwealth, and remaining imbalances in
parliamentary representation. That both of these questions can be
resolved by adopting dedicated seats for Indigenous people in
parliament shows the power of the idea. If it is an idea that gains
credence, legal conjecture that has been described thus far will
prove important in providing options for change.
In Australia, the most promising role for dedicated Indigenous
seats lies in combination with other initiatives. This is apparent
in New Zealand, where dedicated seats and MMP have worked in
concert to produce a more substantial engagement by Maori in the
political system. The creation of an Indigenous representative body
in Australia, as proposed by the current government, could provide
a forum in which to ‘work-through’ appropriate forms of
representation for Australia’s diverse Indigenous
such a body were to make proposals on this issue, they could form
the basis for a model that could work in combination with either a
‘gradualist’ increase in Indigenous representation, or
with a more deliberate approach involving electoral reform.
Dedicated seats could then provide a point of articulation
between that body and other mechanisms of Australian political
representation. If a treaty were to be put in place, dedicated
seats would be the palpable expression of that treaty. This would
be a demonstration of good faith and a concrete guarantee that the
treaty amounted to more than a form of words. If all three
mechanisms were put in place (that is, a representative body, a
treaty, and dedicated seats) then Indigenous people would achieve a
level of formal recognition within the Australian political system
which would be less subject to the policies of individual
Australian governments. Arguably, such an arrangement would provide
a better basis for an enduring relationship between Indigenous and
non-Indigenous Australians than has been apparent to date.
As at 1 February 2009
- The Honourable Alison Anderson MLA—Minister
- Mr Karl Hampton MLA — Minister
- The Honourable Malarndirri McCarthy MLA—Minister
- Ms Marion Scrymgour MLA — Deputy Chief Minister
New South Wales
• The Honourable
Linda Burney MLA—Minister
- Carol Martin MLA
- Ben Wyatt MLA
Australian Bureau of Statistics 2008, Experimental Estimates of
Aboriginal and Torres Strait Islander Australians, June 2006,
accessed on 1 February 2009.
Alexander Reilly, ‘Dedicated
Seats in the Federal Parliament for Indigenous Australians: the
theoretical case and its practical possibility’, Balayi:
Culture, Law and Colonialism, vol. 2, no. 1, 2001, pp.
Senator Aden Ridgeway, entry
in Parliamentary Library Biography Database, 2005,
See John Chesterman,
‘”Chosen by the people”? How federal
parliamentary seats might be reserved for Indigenous Australians
without changing the constitution’, Federal Law
Review, vol. 34, no. 2, 2006, pp. 261–262.
See Department of Families Housing
Community Services and Indigenous Affairs Consultations for the
proposed National Indigenous Representative Body, Commonwealth
of Australia, 2008,
accessed on 1 February 2009, and Aboriginal
and Torres Strait Islander Social Justice Commissioner,
Building a sustainable National Indigenous Representative Body
— Issues for consideration, Human Rights and Equal
Opportunity Commission, 2008
accessed on 1 February 2009.
Australia 2020 Summit 2008,
Final Report, p. 226,
accessed on 1 February 2009.
The Parliamentary Library’s
last publication on this subject also dates from this time. See
Georgina McGill, ‘Reserved seats in Parliament for Indigenous
peoples — the Maori example’, Research Note,
no. 51, 1997, Parliamentary Library,
accessed on 16 May 2008.
See Catherine Iorns Magallanes,
‘Indigenous political representation: identified
parliamentary seats as a form of Indigenous
self-determination’, in B.A. Hocking (ed.), Unfinished
Constitutional Business?, Aboriginal Studies Press, Canberra,
2005, pp. 106–17; Reilly, op. cit. and ‘‘A
constitutional framework for Indigenous governance’,
Sydney Law Review, vol. 28, no. 3, 2006, pp. 403–35,
and Chesterman, op. cit. For recent coverage from Indigenous points
of view, see ‘Eight is enough?’, National Indigenous
Times, September 18, 2008, pp.15–18.
Australia 2020 Summit, op.
cit., p. 340.
ABC News 2007, ‘Rudd pledges referendum on
republic’, 25 July 2007, http://www.abc.net.au/news/stories/2007/07/25/1988149.htm,
accessed on 30 June 2008.; AAP 2008, ‘Calma welcomes
Rudd’s indigenous reform’, The Age, 20
accessed on 30 June 2008.
Chesterman, op. cit., p. 267.
Jennifer Schmidt, Aboriginal representation
in government: a comparative examination, Law Reform
Commission of Canada, December 2003, pp. 13–15.
Andrew Geddis, ‘A dual track democracy?:
the symbolic role of Maori seats in New Zealand’s electoral
system’, Election Law Journal, vol. 5, 2006, pp.
See Legislative Council Standing Committee on
Social Issues, Enhancing Aboriginal political representation:
inquiry into dedicated seats in the New South Wales
Parliament, Parliament of New South Wales, 1998; Legal,
Constitutional and Administrative Review Committee, Hands on
Parliament: a parliamentary committee inquiry into Aboriginal and
Torres Strait Islander peoples’ participation in
Queensland’s democratic processes, Queensland
Legislative Assembly, 2003; and Legal, Constitutional and
Administrative Review Committee, Hands on Parliament: interim
evaluation of the implementation of recommendations made following
a parliamentary committee inquiry into Aboriginal and Torres Strait
Islander peoples’ participation in Queensland’s
democratic processes, Queensland Parliament, 2007.
See John Ah Kit, Reconciliation and
constitutional issues: participation in
government—sovereignty or subjugation?, Australian
Reconciliation Convention, May 1997,
accessed on 1 February 2009.
Schmidt, op. cit., p. 16.
Iorns Magallanes, op. cit.,
Ah Kit, op. cit.
Iorns Magallanes, op. cit.,
This approach is common to Enhancing Aboriginal
political representation, and Hands on Parliament. See n.14.
New Zealand Parliamentary Library, ‘Final
Results 2002 General Election and Trends in Election Outcomes
1990–2002’, Background Note,
2002/06, 20 August 2006
accessed on 27 May 2008; See also Chesterman, op. cit., pp. 268,
M.P.K. Sorrenson, ‘A History of Maori
Representation in Parliament’, in Towards a better
democracy: report of the New Zealand Royal Commission on the
Electoral System, Parliament of New Zealand, 1986, B-5.
Iorns Magallanes, op. cit., p. 110.
Chesterman, op. cit., p. 268; Iorns Magallanes,
op. cit., p. 112.
These were amongst the recommendations of the
Legislative Council Standing Committee on Social Issues 1998 (NSW),
op. cit., and Legal, Constitutional and Administrative Review
Committee, (Qld) op. cit.
New Zealand Parliamentary Library, ‘A list
of Ma-ori / General and South / North Island
electorates’, Electorate profiles, 15
accessed on 1 February 2009.
Chesterman, op. cit., p. 268.
Geddis, op. cit., p. 354.
See John Gardiner-Garden, ‘Defining
Aboriginality in Australia’, Current Issues Brief,
no. 10, 2002–2003, Parliamentary Library, http://www.aph.gov.au/library/pubs/CIB/2002-03/03cib10.htm
accessed on 16 October 2008.
Elections New Zealand, Maori, Pacific and
Asian MPs 1990–2005,
accessed on 6 June 2008.
New Zealand Parliamentary Library, 2002,
‘Final Results 2002 General Election’ op. cit., p.
New Zealand Parliamentary Library, 2002 #59, p.
Elections New Zealand, op. cit.
Geddis, op. cit., p. 351.
Muriel Newman, ‘The future of Maori
seats’, NZCPR Weekly, no. 23, June 2008, pp.
Audrey Young, ‘Key u-turn on Maori seats
denied’, The New Zealand Herald, 7 October 2000
accessed on 1 February 2009; Audrey Young, ‘Finally, a
breakthrough on the Maori seats issue’, The New Zealand
Herald, 28 October 2008,
accessed on 1 February 2009.
Maori Party, Election
accessed on 21 November 2008.
Geddis, op. cit., pp. 358–359.
Iorns Magallanes, op. cit., p. 112; Geddis, op.
cit. pp. 358–359.
Geddis, op. cit., p. 359.
As noted, these include Hands on
Parliament, op. cit.; documents from the 1997 Reconciliation
Convention such as Ah Kit, op. cit.; and the Australia 2020
Summit, 2008, Chapter 7: Options for the future of
indigenous Australia, Commonwealth of Australia,
accessed on 13 May 2008.
Reilly, Dedicated Seats, op. cit., pp.
New South Wales Legislative Council Standing
Committee on Social Issues, Enhancing Aboriginal Political
Representation, op.cit., pp. 104–109.
Legislative Council Standing Committee on Social
Issues, 1998, pp. 43, 44, 45, 46–47, 47–48,
ibid., pp. 49, 49–50, 50–51,
51–52, 52–53, 53–54.
Reilly, Dedicated Seats, op. cit., pp.
Chesterman, op. cit., p. 265.
Reilly, Dedicated Seats, op. cit., p.
Chesterman, op. cit., p. 265.
See Johanna Sutherland and Russell Wynne,
‘Reserved Seats for Indigenous Australians?’,
Indigenous Law Bulletin, no. 47, 1997
accessed on 16 February 2009.; Phillips quoted in Reilly,
Dedicated Seats, op. cit., p. 88.
Chesterman, op. cit., p. 265.
Frank Brennan, One Land, One Nation:
Mabo—towards 2001, University of Queensland Press, St
Lucia, 1995, p. 200.
ibid, pp. 200–201.
Report of the Special Joint Committee for a
Renewed Canada (Ottowa, 1992) p. 42, cited in Reilly, Dedicated
Seats, op. cit, p. 98.
Reilly, ibid., p. 86.
Chesterman, op. cit., p. 266.
See John Howard, ‘Ministerial Statement:
Administration of Aboriginal Affairs’, House of
Representatives, Debates, 11 April 1989, p. 1328, quoted
in Angela Pratt and Scott Bennett, ‘The end of ATSIC and the
future administration of Indigenous affairs’,
Current Issues Brief, no. 4, 2004–05,
Parliamentary Library, Canberra,
accessed on 24 June November 2008.
Ah Kit, op. cit.
Ah Kit, op. cit.
Ah Kit, op. cit.
Ah Kit, op. cit.
See Ah Kit, op. cit. Similar objections have
been canvassed by Chesterman and, in the New Zealand context, by
Geddis, who discusses a perceived threat of Maori parliamentary
representation being ‘ghettoized’ by dedicated seats.
See Chesterman, op. cit., p. 266; Geddis, op. cit., pp.
Ah Kit, op. cit.
Ah Kit, op. cit.
Reilly, Dedicated Seats, op. cit.,
ibid, pp. 90–91.
Reilly, Constitutional Framework, op.
cit., p.435. Shared Responsibility Agreements (SRAs), are those in
which in ‘[in] return for discretionary benefits from
government, communities make some specific commitments in order to
achieve their identified goals’, see ‘SRAs and RPAs
accessed on 1 February, 2009.
Ah Kit, op. cit.
Chesterman, op. cit., p. 275.
ibid., pp. 269–273.
ibid., p. 276.
ibid., p. 282.
Scott Bennett and Gerard Newman, A Fair Deal
for Territory Voters?, Research Note no. 27, 2002-03,
accessed on 19 February 2009, and Margaret Healy, Territory
Representation in the Commonwealth Parliament, Research Note
no. 8, 2000-2001, Parliamentary Library, http://www.aph.gov.au/library/pubs/rn/2000-01/01RN08.htm
accessed on 19 February 2009.
Elections New Zealand, New Zealand’s
system of government—an overview, 2006, http://www.elections.org.nz/democracy/system-of-government.html
accessed on 6 June 2008.
Chesterman op. cit. pp.280–281.
Chesterman op. cit. p.284.
Chesterman op. cit. p.282.
Chesterman op. cit. p.284.
Chesterman op. cit. p.284.
Reilly, Dedicated Seats, p. 77.
Eljon Fitzgerald, Brendan Stevenson and Jacob
Tapiata, Maori electoral participation: a report produced for
the Electoral Commission, Massey University, May 2007.
The Country Liberal Party fielded Indigenous
candidates in the seats of Arafura, Daly, Nhulunbuy and Stuart.
One notable instance was a contribution by the
Northern Territory Member for Arnhem on the extension to the
McArthur River Mine, Northern Territory, ‘Adjournment’,
Debates, 19 October 2006; Tara Ravens,
‘Aboriginal MP makes landmark speech’, AAP, 20
For example: Mr Bob Debus, federal
Minister for Minister for Home Affairs, formerly a Minister in New
South Wales Legislative Assembly, was elected to the House of
Representatives in the 2007 election. Mr. David Tollner was a
member of the House of Representatives until the 2007 election, and
is now the member for the Northern Territory Legislative Assembly
seat of Fong Lim..
Such as those presented in
Chesterman, op. cit.; Reilly, Dedicated Seats, op. cit.
and Constitutional Framework, op. cit.
See Jenny Macklin, ‘Next steps
for Indigenous body’, media release, 16 December 2008,
accessed on 16 February 2009; and ‘National Indigenous
Council’, media release, 15 January 2008,
accessed on 16 February 2009.
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