I caught up on a recent “Truth Telling & Treaty Circle” meeting hosted by The Greens.
Michael Mansell was one of the guests. He talks about sharing of power and “reserved seats” at 43minutes 53sec. Reserved seats is something that is fresh in my mind that I just wrote about recently.
I’m pretty sure that Michael Mansell is on the inside and knows what’s going on. His role has always been to anchor Aboriginal expectations, and to give them ideas of what they should ask the governments for. Tip: learn what “anchoring bias” is if you don’t know already.
Here I will number, and put in some of his quotes from the video, and then add my comments in between.
Quote 1.
The fourth topic is a sharing of power. At the national level, you would expect that we would have power among the decision makers in Canberra as well as at the local level. One idea is to have six Aboriginal seats out of the 76 Senate seats dedicated to Aboriginal candidates.
Mansell
Mansell puts forward a proposal for having six Aboriginal seats. Six is a special number of Senate seats – because according to the Australian Consitution Act, every “Original State” must have six seats;
Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators.
Commonwealth of Australia Constitution Act (1901) Section 7
I have suggested that the Uluru Statement is a proposal for a new State. There’s no minimum requirement for seats in a new State. But if our expectations are now being managed into having exactly six senate seats – maybe we are to become an “Original state” rather than a new State. What’s an Original State?
The States shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called ―a State.
Original States shall mean such States as are parts of the Commonwealth at its establishment.
Commonwealth of Australia Constitution Act 1900 (Imp): Covering clause 6
I think there’s enough room there to retrospectively squeeze “First Nations” into that definition of “Original States”. There were Aboriginal people around, on so-called Commonwealth territory in 1901.
Makes me wonder…. “Original” – where have I heard that word before? Original Sovereign Tribal Federation… etc. There are some people that have been insisting that we stop using the word Aboriginal and use Original instead. Is that actually to trick us into asserting that we are an “Original State” as per the Constitution Act?
* I put a header-picture of a Ouroboros on this post; to represent that the proposed First Nations state will simultaneously be the “Original” state and the last state; it is both the first and the seventh. In the same way, we are ironically called the “First Australians” when; if all goes to the colonial plan, we will also become the “Last Australians”.
Quote 2.
It would be like the old ATSIC elections. Aboriginal people would either choose to be on the general electoral roll or on the Aboriginal roll.
Mansell
I don’t know what he is talking about here. During the ATSIC era of the 90’s, Aboriginal people could not choose one roll or another – they more or less HAD TO BE on the general electoral roll if they wanted to vote in ATSIC elections. Here is relevant part of the ATSIC act;
Persons entitled to vote at Regional Council elections
101. A person is entitled to vote at an election for the members of a Regional Council if and only if:
(a) the person is an Aboriginal person or a Torres Strait Islander; and
(b) either:
(i) the person’s name is on the Commonwealth Electoral Roll and the person’s place of living as shown on that Roll is within the region for which the Regional Council is established; or
(ii) the person is entitled to vote at the election pursuant to rules made under subsection 113 (3).
ATSIC Act 1989
Maybe it’s ‘expectation management’ – and priming Aboriginal people under the future arrangement to not expect to “double-vote” in the Senate. In the 90’s there was double-voting, with people voting in both the ATSIC elections and the mainstream Australian elections. I’ve said before, if there is a perception of double-voting, that will be an excuse to get rid of Aboriginal reserved seats. One person, one vote, equality, democracy…etc ..blah blah…
Or maybe they think that blackfullas will be more likely to enroll if they don’t also have to enroll in the mainstream electoral roll.
However Mansell’s alternative of having separate electoral rolls “based on race” will be a just as good an excuse as double-voting to bring it all down. I can hear the cries of “apartheid” already. The problem is there is no honest education on the “First Nations” landless State arrangement. Such education will clearly show mainstream Australians that Aboriginal reserved seats are not based on race. That education needs to have started 5 years ago.
Quote 3.
In each of the six states, Aboriginal people would elect one Aboriginal senator who would be accountable back to those voters. That means that the white people would vote for 11 of the 12 senators and aboriginal people would vote for one each in each of the states.
Mansell
This is concerning. He is suggesting we get second-hand seats from the states – rather than our own fresh, dedicated senate seats. It will also leave N.T. without an Aboriginal seat, which is odd given the demographics.
IMHO, reserved seats should not be attached to imposed colonial territorial boundaries. It’s an inappropriate arrangement for our representation; they are artificial lines that cut through nations and have little to do with our identity. Eg. when we call ourselves “Murri”, we ignore the QLD/NSW border.
Reserved seats which are divorced from state boundaries are commensurate with the nature of non-territorial federalism, that’s how it works in Belgium.
The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.
Commonwealth of Australia Constitution Act 1901 Section 7
The biggest problem with using second-hand senate seats is that it makes it a LOT easier to get rid of later. The electorate for each of the seats Mansell proposes will be dually compatible with both an “Aboriginal State” electorate, and a colonial “State” electorate. It’s a pivot point. Allocate it as a reserved “Aboriginal” seat, then switch it back into the State-based electorate when assimilation is done – the seat can then be neatly re-absorbed back into the colonial state’s quota. With non-territorial seats, this would not be possible – because the Aboriginal electorate would form a single electorate with a number of seats with nothing to do with the colonial States.
Also remember – the State agreement-making terms are not binding under international law; and I’m guessing that’s where the “reserved seats” will be allocated – so the reserved seats will not have international protection. The signs are there – the seats will be set up to fail – it’s only a matter of time before they dissolve back where they came.
They probably HAVE TO give us 6 Senate seats, at least initially. So don’t think they doing us a big favour in negotiations when they offer up 6 Senate seats.
Quote 4.
That saves amending the constitution, which becomes very complicated if you just take six of the seats out of the existing 76.
Mansell
Recycling second-hand senate seats from the states is easier he reckons, because otherwise the constitution needs changing. I just want to point out here – that amendments to the number of seats actually happens through legislation. Example: see The Representation Act 1983, not through amendment of the Constitution Act.
But there is something else that Mansell might be referring to here, and that is the proportional seat allocation. This is from section 7;
Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators.
Commonwealth of Australia Constitution Act (1901) Section 7
and this from 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 (1901) Section 128
These sections make it complicated to add a new State, because adding a new State with it’s new seats will necessarily diminish the proportionate representation of all of the other States. Under section 128 in particular – means that adding a fresh new set of seats for the First Nations state will require approval of a majority of electors in ALL states.
This standard; the majority of electors in ALL states, is even more difficult to overcome than the double-majority (majority electors in the majority of states) of a normal constitution act text modification.
But the Uluru Statement requests a constitutional reenactment and not a text modification. This means the normal Section 128 rules might not apply. Would this majority of ALL states rule to change proportional representation still apply in case of a constitutional reenactment? I don’t know – it’s a very complicated question, and it’s completely new ground for Australia. Pop over to the Indigenous Constitutional Law blog and you can see them discussing how hard it is to change the constitution – it is as if they are priming the masses for sweeping modifications of the Referendum Machinery Act to help push this referendum through. Maybe that’s because they really want to adhere to their existing written Constitution for the sake of continuity of Australia’s international legal personality; even in case of a full constitutional reenactment. In that case, the Referendum Machinery Act is the better lever to use, and borrowing second-hand senate seats also makes the referendum easier to pass (requiring a double-majority instead of majority-all).
Quote 5.
In addition to those six seats at the national level you would expect there’d be local empowerment at the local and regional level and the state levels…
Mansell
The House of Representatives is not mentioned at all, Mansell only talks about the Senate then moves onto local government. So what’s up with the new First Nations state and their representation in the House of Representatives?
Compare these two clauses in the Constitution Act carefully;
The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.”
Section 7
The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth“.
Section 24
The people of the First Nations state must directly choose their Senators, but not necessarily their MP’s. So maybe there will be no reserved Aboriginal House of Representative seats – hence why Mansell skipped over the topic completely – hoping no one notices.
Since the number of House of Representative seats is calculated using the census data, and since 1967 we are already counted in that number for the State’s reckoning; our fair allocation of House of Representative seats has already been taken and absorbed into the mainstream States. To add insult to injury, these extra seats created from newly counting us in the census were stolen from us and given to the States; and by us having those seats allocated numerically from being counted in the census (meaning we have theoretical representation) enabled the power to pass laws “for us”. “For us” should logically have been interpreted as meaning “on our behalf”, as in the same way a parliament is supposed to operate on behalf of the people they represent. Then the High Court decided in the Kartinyeri case that the power could be used for passing laws to our detriment. We got House of Representative seats in 1967; they were immediately stolen; squatters are still sitting in them since more than half a century; and those seats are still today being used to pass racist laws against us. And the High Court thinks that’s all fine and dandy.
Why is no one talking about this? Where are our seats? Or, why are they passing laws “for us” when Kartinyeri implies we have no representation?
There are currently only 2 Aboriginal MP’s in the House of Representatives – and this is the maximum in the entire history of Australia – most of this time (from 1901 to 2010) that number was zero. Right now – that’s 2 out of 151 total seats, or 1.3%; whereas our population is currently about 3% of the total. So pro-rata, right now we should have about 5 seats – we are still grossly under-represented; even if you count Burney and Wyatt (who don’t represent us anyway – they were elected by Australians, not us).
Fun fact: The first Aboriginal MP, Ken Wyatt, assumed office on the eve of the 240th year anniversary of Cook’s Proclamation of sovereignty at Possession Island. And it was more than 43 years after seats were made for us – that one of us actually sat in them.
I’ve said it before, I’ll say it again – we are being taken for a ride. We are offering the colony full sovereignty and their chance for full independence in exchange for the absolute minimum they can possibly get away with. I don’t know how this could be any worse.
Image by Gordon Johnson from Pixabay