The politics of respectability

I try to stay out of discussions of trans-related issues, because it’s not my place, but also because most anti-trans or ‘gender critical’ arguments are shallow and bad faith – post-hoc rationalisations of bigotry. However, debates within the LGBT community are more interesting to me, because all the participants share an overlapping epistemic basis – they have experienced the same oppression, they share the same ‘lived experience’. So we come to a recent [unproductive] ‘debate’ on YouTube between, among others, Clara Sorrenti (a.k.a. keffals), a [controversial] transwoman and streamer, and Buck Angel, a [controversial] transman and well-known gender-critical conservative. In setting out his views (see below from 3:20), Angel essentially made two claims. Firstly, that social recognition of a non-cis gender identity should be contingent on putting in the effort to pass as a gender other than the one assigned at birth; to wit, Angel would use a male bathroom because over multiple decades he had extensively invested in ‘passing’ as a man. And secondly, that the thing that most alienated Angel and ‘ordinary people’ from the so-called trans movement was their authoritarian insistence on ‘compelling’ recognition of their gender identity.

Now, my first inclination was to dismiss all this out of hand. In the first instance, Angel is merely re-stating the well-trodden ‘transmedicalist’ position that what matters is ‘passing’ – that members of the trans community have to conform to stereotypes of the gender binary (to be more masculine than men, to be more feminine than women) in order to exist safely in mainstream society. And the accusation of leftist tyranny or illiberal progressivism is a veritably ancient right-wing canard at this point. But it occurs to me that in actuality these two arguments are the same argument. Moreover, this pattern of argumentation recurs over and over again throughout history – for example, among black communities in the US, among the indigenous community in Australia – and this recurrence of this divide among marginalised peoples reveals something interesting about how humans do politics. And perhaps in a contemporary Australian context, it might help illuminate why the indigenous community takes divergent views on a constitutional Voice, and why large chunks of potential voters find the prospect of a Voice referendum so off-putting.

Respectability Politics

To put it simply, Angel is arguing that recognition (of one’s gender identity) must be earned – mainly through compliance with social norms and expectations. And to put it somewhat uncharitably, progressives demand recognition of their identity, regardless of whether or not they comply with social expectations. It is fair and accurate to say that this dichotomy (spoiler alert, it’s false) is fundamental to the pursuit of social change. Even when progressive movements couch their demands in solid liberal terms of universal access to rights, much of the backlash against them comes from the centrist perception that to demand equality is somehow illegitimate. So, for example, large parts of the LGBT community believed that integrating into respectable society through adherence to monogamous models of marriage and family life were the key to acceptance; black conservatives think their community has to behave ‘respectably’ in order to cut down on police violence; and the modern welfare state makes recipients of state transfers demonstrate their ‘moral worthiness’ before providing them those critical economic supports necessary for their survival. In most cases, access to dignity is conceded upon performance of some ritual humiliation or submission – i.e. compliance with a social norm. For Angel, to demand equality on the other hand is to tacitly admit one has failed to earn it. Or to make an analogy, to ask for state support is to admit one has failed to earn a basic standard of living in the market; and to ask for cultural or linguistic diversity is to admit failure to integrate.

Now, one could argue that Angel’s argument – let’s call it the respectability position – is merely tactical. That members of oppressed minorities consider the most effective route to achieving political change and assess that social compliance is more likely to lead to the majority of the desired gains. And certainly, for trans individuals who can pass sufficiently well to go ‘stealth’, that may be true. But I don’t think that’s all that’s going on. The tactical explanation does not address why this is the dominant view of large swathes or non-minority populations – ranging from well-meaning cis liberals and centrists to right-wing libertarians and other persuadable groups with no stakes in reform. Respect for existing hierarchies is, after all, one of the foundational dimensions of human political personality. And individuals who lean more conservative on other issues are also more likely to adhere to the respectability position. In fact, the demand that liberal societies recognise the actual equal autonomy of all citizens to express themselves and be treated as full members of society regardless of their ethnic, religious, sexual or other status is in fact vanishingly rare.

I’m currently in the middle of researching my next project on the history of liberalism, so this pattern seems very familiar. There’s an inherent contradiction at the heart of liberalism, between it’s idealised expression of the universal equality of all mankind and the reality, which is that for almost the entirety of the liberal era some populations have been considered more equal than others. Thomas Jefferson, who famously wrote that ‘all men are created equal’, just as famously owned and abused slaves. But even beyond the individual hypocrites, just who is considered an ‘active citizen’, a member of the political community deserving of respect, and who forms part of the masses to be governed (‘passive citizens’) has long been contested. The history of progress is by-and-large a history of expanding the conception of what it means to be human. And a core part of that has been moving beyond mere legal or symbolic equality to ensure in Elizabeth Anderson’s phrase, equality of dignity. That includes, of course, the right to be heard and have one’s conception of self recognised as legitimate. By denying marginalised groups their own culture or individuals their right to self-actualisation, liberals require assimilation into the status quo prior to granting recognition of others as full citizens. This contradiction has been the motor driving social reform, while laying a seed of resentful instability that can germinate into fascism.

Recognition must be given – or taken

So here’s why the divide between earning and demanding rights is something of a false one. In both cases, recognition must ultimately be given by someone with power to someone without. I am not enough of a liberal to believe that rights have a transcendent quality that pre-exist social relationships – recognition and substantiation of rights requires collective, social action. Ultimately, respectability politics of the type advocated for by Buck Angel, or Thomas Sowell, or Noel Pearson, doesn’t work because the position of a plurality of opponents is driven by base disgust and fear of loss – particularly, an irrational fear of a relative loss of social position. Most gender-critical men and women will never tolerate trans people – not even within the prescribed margins tacitly conceded by the transmedicalists – because they view the existence of any trans person at all as a threat, driven by feelings of personal disgust, confusion and rejection. As keffals points out, throughout history minority groups have been met with both public and private violence, legal suppression and harassment. American conservatives have basically already conceded that bills banning trans healthcare for minors, or to ban trans individuals from sport etc., are the thin end of the wedge towards their complete removal from public existence. Out of sight, out of mind.  

But it’s not enough to merely demand recognition, either. And doing so, as we have seen, may alienate those liberals and centrists who resent any expectation that they have to act to improve society somewhat. The notion that they cannot be existentially secure in their [undeserved] social position until and unless marginalised people are also secure is a truth that threatens the very core of their immense self-regard. Until and unless minority groups have the power and organisation to take recognition by force – to seize influence over key institutions and win rights on their own terms – that recognition will continue to be withheld. And in all honesty, the trans community – and indigenous peoples here in Australia – probably lack the sheer numbers to prevail in that kind of political fight. I’m not saying don’t do it. Pressure needs to be exerted from all directions and coercion is an essential part of building any social norm. But galling as it may be, progress will probably be won when the vast body of self-satisfied liberals deign to grant recognition of minority rights ‘as a gift’. The act of charitable giving re-enforces the centrist’s own sense of moral superiority and generosity. So there must be a fine balance between bullying and cajoling; a battered liberal will just as easily become a fascist.

Politics as charity

Does this carry any relevance for the referendum campaign for a Voice for indigenous Australians? I’m on the record as supporting the Voice proposal as a route to political representation, but I’m afraid that the mood of the public is souring and the window to make a make a positive case for constitutional change is narrowing. But the motivation of the Voice’s non-indigenous but well-meaning supporters appears to be not constitutional re-design but recognition of colonised peoples as full citizens. For liberals, the symbolism of the Voice - including their ‘recognition’ in the constitution - is the point; it will cost the centre nothing in real terms. So I think the Prime Minister’s messaging about relying on Australians’ ‘best qualities’ is probably his best saving throw at this point. The referendum will get up if and only if the government is able to convince sufficient voters that they’re good enough people to make the most minor of symbolic concessions to a historically marginalised group of people, whose land and culture we stole. Some might think that’s an easy victory; for me, it appears to sit on a knife’s edge. The politics of this kind of political charity may be frustrating and insulting to genuine leftists - we don’t beg - but fortunately, it’s a skill at which most high-status liberals excel.

A 'Voice' for Indigenous Australians (Part 4): The Egalitarian Alternative and Conclusion

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. 

A 'Voice' for Indigenous Australians (Part 3): Assessing the Objections

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 and Part Two 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. 

“No such country”

It is worth considering the philosophical objections raised by those who oppose an indigenous Voice to parliament. In addition to the Government statements included in Part One (here), today's blog will look at a research brief from the Institute for Public Affairs (‘IPA’), a right-libertarian thinktank with considerable influence over ministers. 

The IPA acknowledged that every citizen had “the [right] to participate in the democratic process” but claims that this right is exhausted by the principle of “one person, one vote”. Under this view, the constitution establishes that all citizens are entitled to equal rights, with no special privileges granted to any group of individuals. The IPA argues that equality means “being blind to immaterial differences such as race, ethnicity and skin colour” and that using race as a qualification for the right to political participation is divisive and undemocratic. A separate press release criticises the proposal for an indigenous Voice as ‘racial identity politics’ that treats human beings as members of a group and not as individuals. This is pretty standard right-libertarian language. 

While the IPA  invokes Aristotle, the liberal democracy it portrays does not actualy exist in Australia. The nation has no Bill of Rights, either in the constitution or in statute. Very limited constitutional guarantees (e.g. to trial by jury, and freedom of religion) have been watered-down by the High Court; even the right to “one person, one vote” does not enjoy constitutional protection. Indeed, had indigenous peoples already possessed meaningful civil and political rights, the interventionist policies adopted by Canberra over the course of the 20th century may never have occurred. Indeed, universal and compulsory indigenous electoral enrolment (i.e. equal treatment with other Australian voters) was only legislated in 1983. Conservative opposition to special representation rights on the basis of formal equality, therefore, is not a claim based in Australian law but in a particular (narrow and pedantic) reading of classical liberal texts. And as we saw last week, it is a reading that is many decades out of date with contemporary philosophy and the reality of multicultural societies.

Other Objections

We should also address some other criticisms of differential group rights. The egalitarian Brian Barry (and other left-leaning critics of ‘identity politics’) have argued that the ‘politics of difference’ damages efforts to redistribute social resources to assist the disadvantaged. The crude version argues that the majority culture will not vote for higher taxes to support minorities that are perceived to be privileged in some way. This is the lazy, zero-sum understanding of politics I have previously referred to as the identarian interpretation of identity politics. 

A more sophisticated version is attributed to Robert Putnam, who has studied the extent to which diversity undermines social capital and solidarity. But Putnam’s research is often misrepresented. It’s not that perceptions of unfairness increase in-group selfishness; rather, they decrease all pro-social behaviour including towards in-group members. While this offers support for Barry’s hypothesis (that differential policies will lower pro-social outcomes for everyone), Putnam's research also demonstratedthat income inequality is equally and independently responsible for eroding social capital. As I have written elsewhere, it's unclear to me why egalitarians who work to establish solidarity across class lines in order to overcome these dissociative tendencies would or should fail to advocate solidarity across other forms of difference. 

Rights for whose benefit?

Lastly, we need to examine the question of whether special representation rights might ultimately harm the interests of indigenous individuals. The classic liberal articulation of this case is to assess whether a cultural group seeks special treatment to impose internal rules or practices on members of its community that would not be tolerated by (or in common law parlance, be ‘repugnant to’) the majority culture. While strong communitarians or relativists may not ask this question, liberal philosophers draw the line of tolerance at communities that are themselves liberal and rights-upholding. I consider this a fair interpretration, and it's an issue with some relevance to the Australian context: the intervention was initially justified as necessary to prevent child abuse, and increasing school attendance and preventing domestic violence remain part of its public purpose. 

While special representation rights and claims for internal autonomy and control are conceptually distinct, they likely overlap in practice. A Voice to parliament that successfully opposed the Northern Territory intervention, argued for recognition of indigenous law in kinship matters, or indigenous language schooling in education policy might (hypothetically) lead to unintended consequences for indigenous families and children. But the key question here is not whether policies of differential representation would prevent any and all harm - clearly the status quo fails that test as well. Instead, it's whether policies of differential representation ensure that all the individuals in a community have their legitimate democratic interests and human rights respected by their political representatives. 

Liberalism does not require that any system of differential representation for indigenous Australia prevent all potential harms: only that itself be liberal and democratic. Any putative inconsistencies between differential representation for national minorities and liberal values can only be resolved on a case-by-case basis. Australian common law has in fact accommodated traditional indigenous punishment, marriage, and property customs for decades. Multiculturalism is always a question of reasonable accommodation and risk: the Australian problem is that there has been no accommodation and no mechanisms by which indigenous citizens could bargain with the majority culture. That needs to change. 

Next week, in Part 4 (the final part), we'll look at an alternative philosophical system based on egalitarian principles of justice. 

A 'Voice' for Indigenous Australians (Part 2): Getting the philosophy right

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. 

A 'Voice' for Indigenous Australians (Part 1): Setting the scene

I'm on vacation over the Christmas break. But that doesn't mean the blogging has to stop. Over the next four weeks, I've queued up a four-part series on the contemporary debate in Australia over an Indigenous 'Voice' to parliament (which I originally submitted for my coursework this semester). Very few people back home seem to be paying attention to the latest twists and turns in our country's (mis)treatment of its indigenous population. 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. 

Setting the Scene

In June 2017, Australia’s Referendum Council (a bipartisan body of indigenous representatives and experts) issued its final report to cabinet recommending constitutional amendment to grant indigenous Australians and Torres Strait Islanders a representative body that would serve as their ‘Voice’ to parliament . That recommendation arose out of a summit at Uluru earlier in May, at which assembled indigenous representatives stated urgent reform was needed to realise indigenous Australia’s ‘rightful’ claims to self-determination and political representation. The Statement was the product of lengthy consultations between a government insistent on purely symbolic recognition of indigenous Australians, and an indigenous movement seeking effective constitutional protections against racial discrimination.

In a joint statement announcing cabinet’s rejection of the Council’s recommendation, Prime Minister Turnbull and Attorney-General Brandis responded that the proposed system of special indigenous representation would violate the principle of equal political rights. The Government claimed that “democracy is built on the foundation of all citizens having equal civic rights” and differential representation was inconsistent with this ‘fundamental principle’. Labelling the proposal ‘radical’ and divisive, the Government’s position was that it “undermined the universal principles of unity, equality and “one person one vote”.” It argued that electing indigenous MPs from ordinary electorates was a preferable path to enhanced representation. 

These two narratives display fundamentally contrary notions of what rights are in a liberal democratic state, who may claim them and why. In Levy’s well-known classification scheme, the Uluru Statement is a claim not for self-determination but for differentiated representation rights. The key question is whether special group rights to political representation are inconsistent with the formal electoral equality of all citizens in a democracy. Whereas indigenous Australians claim parliament is blind to their interests, the Government’s case is that this difference-blindness is a feature, not a bug. Further, satisfaction of indigenous Australians’ claims, they argue, would create difference by making some citizens more equal than others. 

This series will argue that this debate is a novel development in the ongoing conflict over indigenous citizens’ place in the Commonwealth. The debate is moreover an unfamiliar for the voting public, who operate in a legal and social environment characterised by the absence of legally protected rights or even an implicit liberal discourse. It is unusual for Australian politicians, used to operating without the constraint of a domestic Bill of Rights, to make philosophical claims about liberalism democracy and this creates additional challenges for indigenous activists unused to engaging with such claims. 

The Politics of ‘Recognise’: From Beginning to End

For the last thirty years, indigenous Australians appear to have focused their political and social advocacy on what Canadian philosopher Charles Taylor has called the politics of recognition. Taylor argues that the nonrecognition or misrecognition of identity by others constitutes a form of harm or oppression, and that group identity claims are best understood as claims to reduce or ameliorate this harm. Using a constructivist understanding of identity, Taylor argues that since the individual sense of self is developed through dialogue with others, failure to receive equal recognition from others generates harmful individual and social stresses and the internalisation of an inferior or demeaned identity. 

Taylor’s primary critique against the universalism and difference-blindness of the liberal ideal is that it ignores the way that identities shape the individual experience of law. While most left-leaning, egalitarian liberals will accept that differential (material) outcomes may justify differential treatment, the politics of recognition implies that differential identities require differential treatment. This critique is often coupled with the observation that liberalism is rarely difference-neutral in practice, but rather acts as a hegemonic and colonising culture. Taylor (and others) have argued that minority cultural groups in fact have a shared interest in their continued survival as a group , an interest that may be at odds with the majority culture. 

In 1992, the shift from a discourse of self-determination towards a discourse of recognition began when the High Court decided Mabo v Queensland, establishing three legal facts: first, that indigenous Australians had been in sovereign possession of Australia at the time of conquest; secondly, that indigenous Australians had a body of law and custom which continued to be practised; and lastly, that British sovereignty did not entirely extinguish the legal rights and privileges established by that body of law. After two centuries of attempted genocide and assimilation, the nascent politics of recognition initiated a strong backlash from conservative Australia. 

In 1999, conservative Prime Minister John Howard put up a referendum question, asking voters to insert a preamble into the constitution honouring “Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and ancient and continuing cultures”. Howard’s motives were mixed at best; a constitutional monarchist who had risen to power opposing native land rights, his main objective may have been to insert a ‘poison pill’ into the simultaneous vote on a Republic. The referendum’s failure led to the establishment of Reconciliation Australia, a government body which a decade later would organise the ‘Recognise’ campaign. In the meantime, Howard abolished the existing indigenous representative body (‘ATSIC’, in 2004) and initiated the Northern Territory National Emergency Response (‘the intervention’, in 2007) which stripped indigenous communities of their autonomy, imposed paternalistic social controls (especially on welfare recipients), and flooded communities with federal police and bureaucrats. The intervention also suspended the application of the Racial Discrimination Act (‘RDA’), which has led the UN to repeatedly express concern. The intervention is still in effect in 2017. 

With successive governments unable or unwilling to politically challenge the substance of indigenous policy, they increasingly came to rely on symbolism and gesture. Prime Minister Rudd’s well-known Apology to Australia’s Indigenous Peoples changed little, and regular “Closing the Gap” reports dutifully trace the ongoing stagnation in indigenous Australians’ standards of living. Perennial culture clashes, such as over the dual celebration of Australia Day as ‘Invasion Day’ by indigenous people, highlight the ongoing frustration of both sides. In this context, the bipartisan plan to hold a second referendum on recognition of indigenous Australians in the constitution must have seemed like the ideal circuit-breaker. 

Indigenous Australians disagreed. Indigenous communities overwhelmingly rejected a statement of acknowledgement on the basis that it failed to offer substantive, structural reform. According to the dissenting statement of former conservative Minister Amanda Vanstone, attached to the Referendum Council report, while (majority) Australians “understand the importance of . . . recognition’ she had been surprised to learn that ‘indigenous Australians do not attach [to it] the same importance . . .and in fact reject it.” While indigenous groups were also strongly supportive of a constitutional prohibition on racial discrimination (to stop the Government suspending the RDA at will), the final Uluru Statement dropped it as a demand after the Government declared it unfeasible and some activists claimed it failed to go far enough. 

Next week, in Part 2, we'll look at the philosophy of liberal multiculturalism, and what it has to say about representation in a liberal democracy.