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, Part Two here, and Part Three 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.
Is showing material disadvantage necessary?
Although political representation has intrinsic value, claims for differential treatment are often (at least for most liberals) predicated on the demonstration of material harm caused by the neutral application of law. The numerous ways in which indigenous Australians are materially disadvantaged has been catalogued in detail by the "Closing the Gap" reports: Child mortality for indigenous Australians is more than double the national average; educationally, indigenous children are judged on average to lag more two years behind their peers at age fifteen; in 2014-15, indigenous employment rates were twenty percentage points below the national average; and indigenous adults die on average 10 years earlier than their peers.
Although Australia lacks the overt history of enslaving minority communities in the manner that occurred to First Nations and African-Americans in the United States, the overall contemporary pattern of systemic racism is similar. A July 2017 report by the Australian Law Reform Commission (‘ALRC’) found that indigenous Australians are massively overrepresented in the prison population (27% of the total). Aboriginal men are eleven times more likely to be incarcerated than the national average, and Aboriginal women fifteen times. The ALRC found that indigenous offenders were more likely to be sentenced to jail time for minor offences as the rest of the population, and noted the disproportionate impact of alcohol prohibition laws, access to justice issues and juvenile detention on remote indigenous communities.
Prima facie, these differential social and economic outcomes establish a case for special representation for indigenous Australians. That is particularly the case given the extensive federal power over indigenous communities (particularly post-intervention) and the direct correlation between past and present government policies and these differential outcomes. However, there is an alternative view. One that argues that group representation rights are not sufficient to prevent these differential outcomes, which are infringements of fundamental economic and social rights on their own terms. The remainder of this entry will be dedicated to that argument, while standing by and ultimately re-affirming the ‘in principle’ position that adequate political representation requires special indigenous representation.
An Egalitarian Alternative . . . ?
The left-leaning British philosopher Brian Barry has argued against Kymlicka’s multicultural compromise, instead favouring greater direct recognition and enforcement of second-generation economic and social rights. If indigenous peoples experience systematic racial discrimination, or their rights to housing, education or adequate healthcare are not being adequately met, he would no doubt agree that they have a genuine claim for rectification. But this claim arises from the way in which the state and society more broadly fail to uphold the access to economic rights and privileges that members of the majority culture enjoy. The social purpose of the two arguments – improving outcomes for indigenous Australians – are similar, but their reasoning differs. For Barry, if these material differences cease to exist (and they should), then the need for differential treatment would also expire.
He writes:
“[W]e have to qualify the statement that classical or ‘difference-blind’ liberalism cannot countenance any deviation from universal rights. For there may be cases where a system of group-based rights for those suffering from systematic disadvantage will be a way of helping to meet the egalitarian liberal demand . . . However, special treatment for members of disadvantaged groups is justifiable only so long as the inequality persists. The objective of special treatment for disadvantaged groups is to make the need for that special treatment disappear as quickly as possible."
Barry’s argument has both specific and general consequences for the Australian case. In the first instance, persistent evidence of indigenous deprivation in terms of well-established economic and social rights calls for what Levy’s typology of claims labels ‘special assistance’ – additional resources to help a minority community achieve the same standard of living the majority can access unaided. Indeed, this has largely been the approach of sympathetic Governments in Australia: additional welfare spending, assistance for housing construction, incentives for doctors and teachers to work in remote areas, and a focus on indigenous economic development. Yet this public investment over many decades has seemingly done little to change the fundamentally unequal place of indigenous Australians in public life.
But his position has another, more general, implication for Australia. Barry would argue that if a neutral law does not produce egalitarian outcomes then it’s the law, not the outcomes, that needs reform. Australia is both politically liberal by custom and, compared to the OECD average, rather economically egalitarian. But this implicit goodwill disguises many pockets of both authoritarian policy and deep economic inequality. The purpose of a Bill of Rights is not to guarantee rights that the majority already enjoys as a matter of custom, but tools through which marginalised groups can challenge and claim equal treatment from society.
I agree with Barry’s premise that if Australia instituted a comprehensive Bill of Rights, which included robust protections of economic and social rights and institutional machinery to ensure compliance, much (but not all) of the disadvantage experienced by indigenous Australia could be levelled. A (de minimis) constitutional prohibition on racial discrimination, for instance, would improve the law for all Australians, even if it did end up benefiting indigenous Australians disproportionately.
Yet that would not answer the case as to whether differential representation was appropriate. Advocates for ‘second generation’ rights such as Barry often say that that human rights must be understood as a cohesive whole; but we can turn this argument around and note that improved living conditions for indigenous Australians would be meaningless without effective political representation. Liberalism recognises the autonomy of the individual not only as a right but as an intrinsic good. It holds that, given equal material circumstances, the non-autonomous individual is worse off than a free one. Indigenous Australians suffer from many material disadvantages: a legacy of state oppression and family disruption, economic and geographic marginalisation, and prejudicial attitudes from the minority culture. But what they have now told us, in no uncertain terms, is that they want their autonomy back as well. They want a Voice and they want to have that Voice heard.
Conclusion: Towards a multinational Australia
Ultimately, I come down on the side of supporting special representation rights for indigenous Australians, even if there were no material disadvantage shown (contra Barry) and even if negotiating reasonable accommodations for indigenous interests imposed additional governance costs and risks. Barry is partially right: there are other things Australia can do and should do: a binding prohibition against racial discrimination, a comprehensive Bill of Rights, additional financial assistance for remote communities. But the history of Government support for, and intervention into, indigenous communities in Australia has demonstrated that no amount of additional financial assistance nor paternalistic control is able to sustainably resolve the systematic and structural disadvantage faced by those of indigenous heritage.
On the facts, there are persistent features of indigenous communities in Australia – their small size, geographic dispersion and economic marginalisation – which prevents their members from securing meaningful political participation and representation of their interests. Self-determination would not be a magic bullet. But democracy demands that those who are affected by collective decisions get to have a say in making those decisions. We have no other choice.