Ever since the 80’s or maybe even earlier, there has been discussion about Aboriginal people having “reserved seats” in parliament. In this post I am going to write about what that means.

The Bicameral Westminster system

The parliamentary system in Australia is a bicameral system based on the Westminster system. Bicameral means there are two houses. In the British system, the two houses are called the House of Lords and the House of Commons.

The House of Lords consists of designated seats that represent the “Lords Spiritual” and the “Lords Temporal”. The spiritual lords are bishops of the Church of England. Temporal lords are chosen from the nobility. This is a closed, elite house. The House of Lords meets in a room with red upholstery and is also called the upper house.

The House of Commons is elected by the subjects. Commons because it’s for “commoners”, people from communities; Crown subjects. The House of Commons meets in the room with green upholstery and is also called the lower house.

I point out the red and green upholstery because it’s handy in telling them apart when watching them in action on TV. It’s also something that has been replicated in other countries such as Australia, India and Canada.

Bicameral Australia

In Australia this two chamber system has been replicated, but it works differently. The Senate is the red house equivalent to the House of Lords, and the House of Representatives is the green house equivalent to the House of Commons. The way these houses work is set out in The Commonwealth of Australia Constitution Act aka “the constitution”.

Reserved seats in the Constitution

Each State in Australia has a number of “reserved seats” in both the Senate and in the House of Representatives. The number of seats each state has, and formulas for changing that number was agreed to at the time of federation. Unlike in Britain – where the House of Lords is chosen by membership of special nobility classes – the seats in Australia are all by popular election by people of each State. They are all “reserved seats” because every seat is allocated to a state or territory.

The Uluru Statement is a request for a new federated entity for “First Nations”. This is much like a new state. As a new state is being proposed, there is a chance for this new state to have it’s own “reserved seats” – just like other states already have. That means – Aboriginal-only seats in the Senate and in the House of Representatives. When you hear someone talk about “reserved seats for Aboriginal people” – this is an indicator that federalism of an Aboriginal state is on the cards. “Reserved seats” have been discussed for a while, perhaps since the 80’s.

When a new state is established, it is up to Parliament to determine the extent of representation of the new State;

121 New States may be admitted or established

The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit.

Commonwealth of Australia Constitution Act

The newly proposed State can make an offer along the lines of – “we will only join the Commonwealth if we can have x number of seats”. Parliament can then say yes or no. So it’s something that is determined between the parties at the time of admission.

The initial numbers of reserved seats upon a state’s accession to the federation is important, because the initial numbers put a floor on representation as they cannot be easily changed later – see section 128;

No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.

Commonwealth of Australia Constitution Act, section 128

This is why it is critical that the extent of representation in the Senate and in the House of Representatives for a new state is set clearly up-front. This is not what is happening in the case of the Uluru Statement – as zero “reserved seats” were requested in the Uluru Statement “take-it-or-leave-it” offer. At the end of the day – there will be no reserved seats – because there was no minimum set in the original offer. If Aboriginal people want reserved seats, the Uluru Statement needs to go in the bin, and a new offer that has minimum seat numbers needs to be put in it’s place.

How could reserved seats work?

Firstly a disclaimer – as long as the Uluru Statement sits on the table – to even discuss reserved seats is a waste of time – because reserved seats will not be protected under the current proposal (due to contract law technicalities and the way the offer was made). But if an alternative proposal were to replace the Uluru Statement – here is some food-for-thought.

Authentically mirroring the Westminster system

If the Westminster system were faithfully replicated in Australia, the Senate would be the equivalent of the House of Lords. Like the House of Lords; it would consist of spiritual leaders and hereditary land owners. In Australia, that would mean Law-women, Law-men, and Traditional owners. The whole Senate would be Aboriginal and Torres Strait Islander; and I don’t mean in a racial sense – but persons with a deep connection to lore. I’d imagine that everyone in the Senate would be traditionally initiated, and a good proportion of them would be from specific bloodlines. It may include persons without bloodlines if they have gone through lore and are accepted; this would depend on what the lore itself allows. The Senate would not be popularly elected, but appointed through Aboriginal traditional means. The House of Representatives could remain much the same as it is now to represent settlers. Of course, it will be a cold day in hell before any colonial muppet would suggest such a thing. But this is something that is reasonable and has precedent when you consider at how the traditional Westminster system works. Scratch the Senate – replace it with a Black “House of Lords” that runs under traditional lore.

Alternatively, federalism with reserved seats can be a solution.

Federalism of First Nations as a new state is not the worst idea in the world – it is more devil in the detail of the Uluru Statement itself that is the problem. If First Nations were to become a New State – at bare minimum there should be a similar reckoning of representation in seats as other states. Every Aboriginal person can only vote once, because each person should belong to only one state – eg. if they vote for reserved Aboriginal Senate seats, they cannot also vote for reserved Queensland Federal Senate seats. If the Voice actually happens – double-voting will be it’s downfall. Australians will bitch and moan endlessly about “the aboriginals” voting twice. This is impossible to argue against.

Australians have their set ideas about what a real “state” is – and they will not see First Nations as a true state because of it’s lack of defined territory. Non-territorial federalism is doomed without broad ‘expectation management’ and education about the First Nations state, and this education is not happening. Another reason why “Land back” should have been included. Average Joe understands Michael Mansell’s proposed “seventh state” because it has land, but Average Joe sees the landless “Voice” as a racist third chamber, even though the Voice and the seventh state are basically the same thing.

The main “pro” of reserved seats is that it allows keeping key functional parts of a system that most people are familiar with. Familiarity means certainty and stability.

The main “con” is that creating reserved seats is trying to Macgyver a system that was built on our destruction. Another major con is that it is assimilatory by nature for us to be represented in Parliament at all.

Bigger changes are needed

My own idea is that there needs to be much larger changes if a Macgyver/retrofit approach is to happen. They would at minimum include setting boundaries on government power, because there is little restriction on power as it stands now – they currently walk all over us with impunity.

There needs to be last-resort discretionary veto power held by traditional law holders – whether it be an elders council, or a position similar to the a non-executive Head-of-State role. We should absolutely have some form of veto powers to make up for more than two centuries of illegal occupation. The Crown and the Governors/Governor-General have always held such powers, and having a symbolic head of state with extensive reserve powers is common in many countries. It is hypocritical to deny us veto on one hand, and yet boast in preambular statements (eg. in State constitutions) about respecting the value of our traditional and sacred connection to land and waters. Reserved seats or an advisory-only Voice alone are not enough.