I'm on vacation over the Christmas break. But that doesn't mean the blogging has to stop. I've queued up a four-part series on the contemporary debate in Australia over an Indigenous 'Voice' to parliament. You can find Part One here. Needless to say, the usual caveat applies: the views expressed this paper are the author’s own and do not reflect the views or positions of the Commonwealth Government or its agencies. 

Understanding rights claims

While there may be no explicit ‘right to democracy’ at international law, there is a human right to political participation and representation. The Universal Declaration and Article 25(b) of the ICCPR both promise periodic and genuine elections on the basis of ‘universal and equal suffrage’. Article 25(a) of the ICCPR adds the right to ‘take part in the conduct of public affairs’. The UN Committee on Human Right’s General Comment 25 explains that political participation is a broad concept, which covers all exercise of political power and the formulation of policy, and that the principle of one person, one vote ‘must’ apply. Where participation takes place through elected representatives, those representatives must in fact exercise meaningful authority.

The more recent UN Declaration on the Rights of Indigenous Peoples, which does not have the status of binding international law, establishes in Articles 18 & 19 that:

“Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures… 
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. ”

The Declaration arguably establishes a customary interpretation of what the existing right to political participation and representation means for indigenous peoples. Australia (belatedly) supported the Declaration in 2009, but only the basis that it was non-binding and did not affect Australian law. It’s likely the present administration maintains the strong reservations expressed about the Declaration during Howard era, in particular opposition to its language on indigenous self-determination and representation. 

Liberal Multiculturalism

But why might indigenous groups be entitled to differential treatment (or differential interpretation of their rights) in the exercise of political participation? Liberal philosopher Will Kymlicka has sought an answer through forging what he has labelled a liberal ‘accommodation’ of group rights, called either ‘liberal nationalism’ (when applied to the majority culture), or ‘liberal multiculturalism’ (when applied to a minority). In Kymlicka’s compromise, liberal states should not promote a common idea of the ‘good life’ but may establish a ‘thin’ identity of shared citizenship which brings people together into an imagined community of co-operators. By doing so, a population of individuals becomes a people, sharing a history, defined territory, common language and working joint institutions regardless of their ethnic origin, religious belief or concept of the ‘good life’. This is a fair portrayal of civic nationalism in settler states such as Australia and the United States. 

In Kymlicka’s early work on multiculturalism, he defined a nation as a “historical community, more or less institutionally complete, occupying a given territory or homeland, [and] sharing a distinct language or culture”. Many states, he argued, were multinational states, consisting of more than one nation brought together by federalism, conquest or settlement. Where the power or status between them is unequal, nations that lack political or institutional influence are national minorities. Unlike immigrants, for example, national minorities have defined territories, laws and institutions, and (except by explicit agreement or concession) have not consented to be governed by the majority culture.

Kymlicka’s definition has in mind the First Nations of North America and other native peoples, and also no doubt includes indigenous Australians. Indeed, the recognition of the continuing existence of indigenous law and customs by the High Court in Mabo neatly follows Kymlicka’s pre-requisites for recognising indigenous Australians as a national minority. He argues that among the rights that national minorities may claim are special representation rights, when there exist systematic disadvantage or barriers in the political process which makes it impossible for a group’s views to be effectively represented. It’s clear that Kymlicka’s liberal multiculturalism, and its accommodation of the group interests of minorities, underlies the UN Declaration on the Rights of Indigenous Peoples and other recent sectoral human rights conventions.

Making the Case: The Social Thesis

There are two basic lines of reasoning leading to this compromise, which I shall label the communitarian and individual rights approach. But both rest on the same logic. In a liberal society, all individuals are of course free to choose the way in which they manifest their language, culture or religion. The continued existence of any language, culture or religion, however, presents a social dilemma: individuals are tempted to defect from the group (for example, by practising a higher-status or more advantageous culture). But because outcomes for everyone are interdependent, sustained defection will mean those that choose to stay can no longer meaningfully practice their culture.

All cultures have internal rules to manage the problem of defection and preserve group identity; from the perspective of evolutionary sociology, these norms of punishment and rules of membership are what define a culture. From a communitarian, the culture or group has a collective interest in individuals working together to be represented as a group because otherwise its ongoing survival as a group is at risk.

But this outcome can also be justified from the perspective of individuals rights. We can compare the right to political participation with other rights that are sometimes claimed to embody communitarian ends. Article 27 of the ICCPR, for example, grants the right to minorities to enjoy their culture, practise their religion and use their own language, in community with other members of the group. The Lovelace case before the UN Human Rights Committee  established that while the right to culture is an individual claim, the existence of the community is a necessary prerequisite for that right to be meaningfully exercised.

While often legally expressed as simple prohibitions on state interference, almost all liberal rights only make sense as social goals when the individual is placed in the context of a community.  An individual in a state of nature has no need or capacity assert their right to life or freedom from torture, much less their right to education, healthcare or a decent standard of living. An individual in society does have a need and possesses an institutional capacity to assert such claims.

As Amy Guttman eloquently puts it, 
“Civil equality . . . is a right that can only be held jointly by individuals, it cannot be held by any individual in isolation. The right pre-supposes the inclusion of individuals in groups, but the intended beneficiary and ultimate claimant is the individual, not the group.” 

Kymlicka calls this the ‘social thesis’ , the idea that both rights and free choice presume (and in fact require) a social environment and certain kinds of institutions. Human rights may not be group rights per se, but are held jointly by individuals and for their collective benefit. The right to free association, which is an essential component of the right to political participation, explicitly provides that individuals may belong to multiple, overlapping communities – not just the society of the whole. For instance, the community through which they claim social support or organise family relations need not be the same community through which they practice their language and religion. 

Representation as a collective right

My central argument is therefore this: like other rights, the right to political representation is exercised by individuals in the context of their political community. And so assessing whether or not an individual’s right to political participation is satisfied requires more than asserting they have equal voting rights. The right to political representation is not a group right as such. But it does presume the individual is represented as part of a community of common interest. It requires assessing whether, in the context in which a vote is cast, it secures meaningful representation of the interests of that individual and community.

This is an accepted liberal principle. We don’t accept, for example, that electoral boundaries can be drawn so that voters’ interests are excessively diluted, nor do we accept electoral divisions that weight some region’s votes more than others. In Australia, the Electoral Act requires that federal electorates form a ‘community of interest’ that do not vary by size by more than 10 per cent from the mean (amusingly, the High Court has ruled there is no constitutional protection against unequal representation in state elections). 

As the UNHRC put it in General Comment 25:
“The drawing of electoral boundaries and the method of allocating votes should not distort the distribution of voters or discriminate against any group and should not exclude or restrict unreasonably the right of citizens to choose their representatives freely.”

In sum, an individual’s right to political participation is violated when electoral systems do not ensure them adequate representation in the context of their community. For indigenous Australians, the relevant political community may be one defined by the indigeneity, traditions and customs of its members. 

The question now remains to apply the law to facts. Given that indigenous Australians are prima facie a national minority, we must ascertain whether they’re adequately represented and what special measures might be necessary to secure their political rights. There are presently four indigenous members among Australia’s 226 federal parliamentarians, a reasonable proportion given that they constitute less than three per cent of the total population. But we should acknowledge that these four represent half of the total indigenous parliamentarians in the nation’s history, and three of them have only served since 2016. 

Unlike First Nations in North America, who enjoy devolved powers and are relatively territorially concentrated, indigenous Australians face particular difficulties in obtaining political representation of their interests. There are more than 120 distinct language groups spread across the continent; most indigenous individuals live in cities and rural centres, and are largely assimilated into Anglo-Australian culture. Areas with majority indigenous populations (mainly in the Northern Territory) are often geographically remote and economically marginal. Thus, while the Government is technically correct to state that individual indigenous Australians have the equal right to elect their representatives on the basis of ‘one person, one vote’, there are structural barriers which prevent them from obtaining effective representation of their interests as a community. 

There is a case in law, history and circumstance that the interests of indigenous Australians as a national minority are not being adequately collectively represented. Special representation rights in federal parliament, whether in the form of a Voice or something else, are therefore necessary to correct for these differential outcomes. 

Next week, in Part 3, we'll look at the Government's case and other objections to an indigenous "Voice", and assess whether they stack up.