The keynote address will be delivered by Mike Wait from the Crown Solicitor’s Office, who was counsel in the recent Holmdahl case that challenged compulsory voting in Australia. The other speakers are Masters students from Malaysia, Cambodia, France, Germany and Australia.

Event Details:

11 May 2013, 9 for 9.15 am – 3.15 pm

Moot Court, Ligertwood Building, The University of Adelaide

No attendance fee, but rsvp necessary.

RSVP: cornelia.koch@adelaide.edu.au by 9 May 2013

Further information can be accessed here.

Let’s conduct a thought experiment. Imagine the Commonwealth Parliament passing a law that takes away the right of women to vote in Commonwealth elections. Most constitutional lawyers, I suspect, would agree that the High Court would not let this stand although the precise doctrinal formulation of the reasoning condemning such a law would be a matter of some speculation. What if the same Parliament instead took away the voting rights of Indigenous Australians? I imagine that most constitutional lawyers would agree that this too would fall foul of the High Court. Ok, a third thought experiment. What if the Parliament removed the secret ballot from Commonwealth voting legislation? I guess here that most constitutional lawyers would also agree that the High Court would not allow this – although perhaps there might be a little more hesitation on this one.

Let’s change the scenario one more time. Now the Commonwealth legislates to remove compulsory voting. My guess here is that most constitutional lawyers would say that this would probably pass muster in the High Court. I want to argue that if the High Court would invalidate the law in the first three scenarios it should do the same if compulsory voting were removed.

The first three scenarios are really examples of constitutionalization. The first two, the voting rights of women and Indigenous Australians, are examples of constitutionalization after the formation of the Commonwealth Constitution. The last of the three, the secret ballot, is probably an example of constitutionalization by adoption of unwritten practice existing before 1901. There is nothing new in unwritten practices which exist before the creation of our Constitution being incorporated into that constitution. After all the Constitution has adopted judicial review, indeed, the very notion of the judiciary, from the Anglo-American constitutional tradition and the common law. And the reality of our executive government, the office of Prime Minister and other ministers, is another series of unwritten practices that have been woven into our constitution.   In other words, constitutionalization is a normal thing. The adoption of unwritten practices that came into being after 1901 might be considered more contentious but, as suggested by my thought experiments, I would be surprised if any constitutional lawyer in Australia would agree that the High Court would condone Commonwealth legislation removing voting rights for women or Indigenous Australians and, probably, the secret ballot. These are just too enshrined in our constitutional thought and practice to be anything other than part of the fabric of the Australian Constitution.

So, should the constitutionalization of compulsory voting be treated as just another example of constitutionalization of unwritten practice in line with my examples of voting rights for women and Indigenous Australians, or the secret ballot?

It might be argued that the first three examples deal with individual rights while compulsory voting does not. It is undoubtedly true that they do deal with individual rights. But they also deal with communal rights – the right to have a polity where all people get to vote (including women and Indigenous Australians) and where the vote is exercised in a manner that is commonly accepted as being fundamental to a free choice in an election (the secret ballot). In other words, it should be considered a constitutional right in Australia to be part of a political system where all Australians, irrespective of sex, ethnicity, religion, etc, are guaranteed a right to vote and where such voting takes place in secret.

I would argue that our political and constitutional history similarly enshrine a constitutional right to vote in a political system where everyone votes: where the constitutional requirement that the parliament be chosen by “chosen by the people” means chosen by all the people and not just the 50% or 60% or whatever percentage of the voting population that can be bothered to vote in a non-compulsory system. Couldn’t it be argued that it is also a communal value to have all adult Australians voting in Commonwealth elections, that this is a value for everyone and thus an individual right for all?

Australia’s political and constitutional history is inextricably bound up with compulsory voting since its introduction in state voting in Queensland in 1915 and federally in 1924. It is difficult to imagine, for example, how the constitutional crisis of 1975 would have turned out if the election of December, 1975 which swept out the Whitlam government had been held under voluntary voting. Whatever one’s views of the merits of the Whitlam government, the actions of the Liberal and Country parties of the time, of Sir John Kerr’s decision and the involvement of Sir Garfield Barwick and Sir Anthony Mason in this crisis, the fact that all Australians of voting age were given both the right and duty to vote in the ensuing election must have worked to help resolve this crisis. It is not implausible to believe, I would argue, that one of the reasons that Australia has had such a stable constitutional and political history since compulsory voting was introduced is the very fact of compulsory voting. The acceptance of women’s and Indigenous voting rights has only worked to reinforce this effect.

The advantages of compulsory voting go beyond enhancing stability, however. In general terms it can also be argued that compulsory voting has worked to limit the extent to which governments attempt to “bribe” the electorate. It is far harder, after all, to bribe 100% of the voting public than it is to bribe 50% or 60% of the same group.  The rent-seeking behaviour which is endemic in all countries has been reduced in Australia by ensuring that everyone is given both the right and duty to vote in elections and, to use contemporary language, “own” the results.

I think that it is a general rule that the more the people are involved in their own governance the better off they are, politically, economically and socially. Compulsory voting is an Australian manifestation of this rule and is now part of our constitutional fabric and should be recognised as such.

Dr John Gava is an Associate Professor at the Adelaide Law School, University of Adelaide.

Attorney-General (SA) v Corporation of the City of Adelaide (the Street Preachers Case).

The AACL and the AIAL are jointly presenting two seminars to explore the administrative and constitutional issues emerging from the decision.

Seminar 1:  The Scope of Council By-Law Making Powers After the Street Preachers Case

Michael Roder SC, Howard Zelling Chambers

Date:            14 May 2013

Time:           1-2pm

Venue:        Pilgrim Hall,12 Flinders Street

RSVP:          10 May 2013 to Sarah Mitchell: mitchell.sarah@agd.sa.gov.au

 Seminar 2:  Freedom of Political Communication After the Street Preachers Case

Luci Byers & Mike Wait, Crown Solicitor’s Office

Date:            29 May 2013

Time:           1-2pm

Venue:         Pilgrim Church,12 Flinders Street

RSVP:          24 May 2013 to Sarah Mitchell: mitchell.sarah@agd.sa.gov.au

* Please ensure that you specify in your rsvp which seminar(s) you wish to attend.

Last Friday, we witnessed the regular pilgrimage of state and territory leaders to meet with the Prime Minister in the Council of Australian Governments (COAG). This ritual, despite being one which has been part of Australian governance since the beginnings of the federation, is one which has always attracted criticism of its worth and this time was no exception. Queensland Premier Campbell Newman again attacked the process as a ‘dysfunctional farce’ that should be abandoned. Tony Shepherd of the Business Council of Australia argued COAG has ‘failed’ to achieve a fairer distribution of revenue between the Commonwealth and the States and Territories and should be reverted to an earlier state of limited premiers’ conferences and stronger ministerial councils.  Stephen Bartos has argued the process is overburdened and should be reformed. While each of these people makes credible points about the problems with the COAG process, they blame this on structural flaws in COAG, when in fact the problem is much deeper. If we as a nation are to solve the problems Newman, Shepherd and Bartos allude to, we need to look at the structure and distribution of responsibilities within the federation.

Initially, let’s examine why COAG exists. We have a federal system in Australia where the vast bulk of policy can be regulated either by the States and Territories or by the Commonwealth. States have the power under their constitutions to legislate on any issue. The Commonwealth has limited legislative powers under sections 51 and 52 of the Australian Constitution and full legislative powers in the territories which are exercised, by virtue of legislation, by the Territory governments. What this means is that the States, the Territories and the Commonwealth all have overlapping constitutional powers to legislate in the vast bulk of policy areas. Section 109 of the Australian Constitution resolves conflict between Commonwealth and State law (in the Commonwealth’s favour), but the distribution of policy responsibilities is left for the various Australian governments to decide for themselves. Furthermore, in the absence of a constitutional provision for where these arrangements are to be made, it is left for the governments to design and participate in their own forum to manage their political relationships. Currently, this forum is COAG.

Both the Commonwealth and the states and territories have a strong incentive to attend COAG. The States and Territories, as a result of a drift of taxation power from the states to the Commonwealth since the 1940’s, are dependent on Commonwealth grants in order to fully fund their programs. The Commonwealth is also facing greater electorate expectations upon it than it has in the past and requires the states and territories to be in agreement with their programs in order for them to come to fruition. The result is a meeting where the leaders of the States and Territories and the Commonwealth come together, each with their own agendas, and negotiate to get the best deal for their jurisdictions. Sometimes, like setting up a national training system, interests align and an agreement is reached. Other times, such as the current education reform package, agreement is not forthcoming at the meeting. Sometimes, like with rules on royal succession, an agreement results after multiple meetings. The success or failure of these meetings hangs on the balance of political and parochial interests that each leader brings to the table and this situation is the primary basis for criticism of COAG. The solutions presented, however, are unsupportable.

Let’s examine what will happen if we abandon COAG completely. Because of the shared nature of political responsibility in the Australian federal system, without a forum like COAG meeting regularly each jurisdiction could legislate on almost any political issue without reference to other jurisdictions. This will inevitably result in overlapping regulation. As a result, the only way for jurisdictions to interact with one another in the policy formulation process would be through individual meetings between the Commonwealth and individual States and Territories or after the fact through a court challenge to an enacted law.  Neither of these options is practically feasible as bi-lateral meetings on every issue of cross-jurisdictional concern would be overly burdensome. Furthermore, challenging every law enacted with a cross-border concern in court would see the entire governance process grind to a halt while the cases were being considered. In addition, the extra cost and burden on the court system would have serious implications for the accessibility of the wider community to the justice system. As such, a meeting of government leaders is a practical necessity. As COAG is that meeting, abandonment of the process wholesale is impractical.

The second option is to slim down the COAG process, allowing the meeting more scope to deal with a smaller number of issues in greater detail. This seems reasonable in theory but in practice, as with abolition, it is not possible. As the independent financial capacity of the States and Territories continues to drop, and the electorate expectations on the Commonwealth continues to grow, more and more policy will need to be coordinated between the different levels of government. Put simply, the States and Territories need the Commonwealth’s money and the Commonwealth needs to draw on the legislative power of the states to implement policy. This means that the amount of policy which goes to COAG will inevitably increase. It will only be decrease if, somehow, the states and territories gain enough revenue to act more independently, or the electorate expectations on the Commonwealth decrease. Neither is likely.

This leads us to the final option of slimming down COAG and putting more issues to ministerial councils to resolve. This is not a solution as it only shifts the responsibility. Ministerial councils still exist and contribute to the policy discussion. Moving responsibility from COAG to ministerial council simply shifts issues to another forum. Furthermore, ministerial councils do not have the capacity for final government sign off, which requires the Prime Minister and Premiers.

Ultimately, the problems with COAG are a symptom of wider systemic issues with our federation. As long as responsibility is shared between jurisdictions rather than specifically distributed, negotiation and cooperation will be necessary and therefore, so will COAG. The only way to change this is to alter the constitutional distribution of powers or to create a body with greater capacity and without political division to conduct inter-jurisdictional negotiations. Even this may not fully solve the problem as interaction between jurisdictions is in the nature federal government. Either way until then constitutional reform is forthcoming; COAG, with all its flaws, is the best we have.

Mark Bruerton is a PhD Candidate at the Adelaide Law School, University of Adelaide.

I am a PhD candidate at the Adelaide Law School and was one of two winners of a 2012 Fulbright South Australia Scholarship.  My PhD research examines the rights of the States of Australia to water from rivers that flow through more than one State.  I am currently spending 10 months in the United States for the purpose of investigating how interstate water disputes have been resolved in the United States, and considering whether these approaches can be applied in Australia.  In particular, I am interested in the role that the United States Supreme Court has played in settling interstate water disputes.

 Intrastate water regulation in the United States  

One of the interesting features of the development of water law in the United States is that the States in the western region of the US have taken a very different approach to intrastate water allocation compared to the eastern States.  Broadly speaking, the courts in the States in the east adopted an approach that attempted to preserve the natural flow of the river, because when the relevant laws were developed (in the nineteenth century) the flow of the water was used to operate mills on the banks of rivers and streams. 

In the drier western States water use was driven largely by mining and irrigation – uses that required water to be diverted from the river, thereby depleting its flow.  Consequently, in the west, rights to water were generally granted on a first-in-time basis, irrespective of how that water use might disturb the natural flow of the river for subsequent downstream users (so long as the water was being put to use and not wasted). Courts in the west expressly acknowledged the need for water users to be allowed to divert water with the confidence that subsequent users downstream would not be able to challenge their claim. The basis for the development of the common law in this way was that the different environmental conditions and water uses in the west dictated a different approach.

Interstate water conflicts in the United States

The fact that different approaches to intrastate water allocation were adopted only further complicated how water from interstate rivers, such as the Colorado River and Arkansas River, was to be shared between States. While many interstate water disputes have been solved by the States entering into a compact (or what we might refer to in Australia as an ‘intergovernmental agreement’), some disputes have not been able to be resolved in this way and have been litigated by States in the United States Supreme Court. The first interstate river dispute – Kansas v Colorado – was first heard by the Supreme Court in 1902 and since that case the Court has heard a number of interstate river disputes.

The United States Constitution does not deal expressly with interstate water rights; however, the Supreme Court has held that there is an ‘equality of right’ between States and, despite the fact that there is no uniform common law across the United States, the Court has held that there must be an ‘interstate common law’ – sometimes referred to as ‘federal common law’ – applicable to interstate river cases.  In a series of cases during the twentieth century the Supreme Court developed the ‘equitable apportionment doctrine’ for allocating water from interstate rivers. The Court has explained that the common law doctrine of equitable apportionment doctrine must remain flexible to take into account the unique characteristics of each interstate dispute.  However, the key factors have been identified as (see, for example, Nebraska v Wyoming (1945) 325 US 589, 618):

• Physical and climatic conditions;
• The consumptive use of water in the sections of the river;
• The character and rate of return flows;
• The extent of established uses;
• The availability of storage water;
• The practical effect of wasteful uses on downstream areas; and
• The damage to upstream areas as compared to the benefits to downstream areas of a limitation is imposed on the former.

The last of these factors requires the Court to engage (at least in part) in a cost-benefit analysis in determining whether the upstream State is permitted to withhold a greater amount of water.

Unsurprisingly, the evidence in an interstate water dispute can be lengthy and complex.  Consequently, the US Supreme Court does not hear the evidence, but instead appoints a Special Master to hear the case and make findings and a final recommendation. The hearings can involve hundreds of documents and thousands of pages of testimony from experts.  For example, in Arizona v California – a dispute between a number of the western States over the Colorado River – the trial before the Master lasted for just over two years, the evidence of 340 witnesses was put before the Master, thousands of exhibits were tendered, and the transcript of the proceedings was over 25,000 pages.  With such a large volume of evidence it is unsurprising that the report of the Master was over 400 pages.

Sharing water from interstate rivers in Australia

From an Australian perspective, the interesting question is whether the High Court of Australia could adopt a similar approach in resolving and future disputes over the waters of the River Murray by developing or modifying the common law. Could the High Court find similar principles of ‘equality between States’ in the Australian Constitution that might support the modification of the common law? If such a principle can’t be found within the text or structure of the Constitution, could the common law in Australia still be developed in such a way as to create an interstate water right?

The creation of an interstate water right at common law in Australia would, in effect, place a limitation on the legislative power of the States in circumstances where such a limit is not provided for in the Constitution. This raises interesting questions about the extent to which the Constitution may influence the development of the common law and the development of the common law in a way which is consistent with the Constitution.

Whether the High Court is required to consider these questions is now largely dependent on the acceptance by the States (and other interested parties) of the Murray-Darling Basin Plan.  These issues could only come before the High Court if the validity of the plan is challenged.   However, as the United States Supreme Court has noted in the dealing with interstate river disputes in that country, litigation should only be seen as a last resort and resolution of these matters by compact (or intergovernmental agreement) is preferable. Perhaps this is the first lesson that Australian States can learn from the United States interstate water disputes.

The President and Congress:
Separation of Powers in the United States of America

Although the framers of Australia’s Constitution adopted many features of the United States Constitution, they rejected the separation of legislative and executive power in favor of responsible government in a parliamentary system like that of Great Britain. This lecture will review the main consequences for the United States of its choice to separate these two branches. Many current controversies in America reveal the effects of separation, including the appointment of executive and judicial officers, the funding of the federal government, and the conduct of foreign relations and war.

Presented by

Professor Harold Hastings Bruff

Harold Bruff is the Rosenbaum Professor of Law at the University of Colorado School of Law, where he was dean from 1996-2003. He received his B.A. in American history from Williams College (Phi Beta Kappa) and his J.D. from Harvard Law School (magna cum laude). He has served in the Office of Legal Counsel in the U.S. Department of Justice, where he advised the DOJ, the White House, and executive agencies on issues of constitutional and administrative law. He has testified before Congress many times, and has written several books and many articles on administrative law and separation of powers.

 Date:                  17 April 2013

Time:                 1-2pm

Venue:              Moot Court, Ligertwood Building, University of Adelaide

RSVP:                Monday, 15 April to Dr Gabrielle Appleby: gabrielle.appleby@adelaide.edu.au

In January this year, a joint parliamentary committee made a recommendation in a preliminary report that the ability of the Commonwealth to grant financial assistance to local government be constitutionally entrenched. The joint committee’s work builds on the report from the Expert Panel on Constitutional Recognition of Local Government in December 2011.

The proposal for what is known as ‘financial recognition of local government’ has been recommended as a matter of some urgency on the basis that the recent High Court case that struck down the Commonwealth’s National School Chaplaincy Program (Williams v Commonwealth) has thrown the constitutionality of many Commonwealth funding programs into doubt, including those to local government such as the Road to Recovery program. (Further information on the details of the Williams decision and its implications for future Commonwealth funding can be found in my earlier post on the decision, here). 

It is true to say that the Williams decision threw doubt upon the constitutionality of many Commonwealth funding programs to local government. It also threw into doubt the constitutionality of many Commonwealth funding programs to non-local government actors, but the focus has been on ‘fixing’ the constitutional issue in relation to local government only. This in itself raises interesting questions about the government’s priorities, although I think it can probably be explained by reference to the Local Government Association’s long struggle for constitutional recognition and persistent lobbying. In short, the issue of financial recognition of local government has been a long-simmering issue that Williams has brought to the boil.

Financial recognition of local government has bipartisan support.  However, the speed with which the joint committee has recommended the Government and Parliament acts – putting a referendum to the Australian people at the September 2013 election, has driven the parties apart on the issue. 

The joint committee has called for further submissions on the terms of reference and the interim report and is due to report finally in March. 

I made a submission to the inquiry to express my significant concern over the timing of the referendum, which may see a previously innocuous referendum issue split by partisan division. It also leaves little time for the government to engage with the voters and explain the necessity of the referendum and the operation of the amendments. Further, there is a danger that State support of the proposal won’t be gained, which history has demonstrated will lessen its chances of success.

If the referendum is unsuccessful, there is a real danger that it will stall future referendums – entrenching once again in the psyche of the politicians and the public that constitutional change is exceptional and overly difficult in Australia. This may have serious repercussions for other referendums proposed into the future – on constitutional recognition of Aboriginal and Torres Strait Islander peoples, on four-year or fixed parliamentary terms or on State-Commonwealth financial relations. I believe there is therefore a real imperative for the Government to succeed in achieving constitutional change that effects the recognition of local government.  

Not only do I hold fears that if the referendum were to fail it may have a chilling effect for future referendums, but even if it is to succeed, I wonder whether it is the best outcome for local government and the community. Local government plays an important role in the community, providing many local services. It has its own democratic mandate and for many people they will feel closer to their local government representatives than their representatives in State or federal politics. Local government has long campaigned for constitutional recognition of its important role in the federal system and protect it, to varying degrees, from the whims of its current master, the States. Constitutional recognition has been fought to secure its existence and jurisdiction, its democratic mandate, its place in the federal system, and its financial viability. Yet, the current referendum proposal addresses only one of these issues. There is perhaps then a danger that this referendum may secure some financial security for local government, at the cost of constitutional recognition that would guard against these broader concerns.

If the referendum is put now on such a narrow question – financial recognition – the momentum may be lost for future consideration of broader issues relating to local government.

Dr Gabrielle Appleby is a Senior Lecturer at the Adelaide Law School. She researches and teaches in public law and has written on the scope of the Commonwealth’s spending power. She has previously provided commentary on the recognition of local government published in Independent Australia and her submission to the Joint Committee can be accessed here.

The South Australian Chapter of the Australian Association of Constitutional Law (AACL) is proud to host

Proportionality in Rights Adjudication: Approaches to Balancing Competing Interests in Australia and Germany

 In her judgments and extra curial writings Justice Kiefel has discussed the development of a proportionality test in Australian constitutional law by reference to its origins in German and European law. This seminar explores the status of proportionality in constitutional rights adjudication in Australia and Germany and considers whether the German approach could inform the development of a more consistent and structured principle in Australian law.

Chaired by:

Chief Justice Chris Kourakis

Presented by:

 Sarah Moulds

Sarah is a Senior Policy Lawyer at the Law Council of Australia. She is part of the Law Council’s Human Rights and Criminal Law Division, and her work includes monitoring Australia’s compliance with international human rights law. Her Masters thesis considered the proportionality principle in Australian and Germany.

 Cornelia Koch

Cornelia Koch is a Senior Lecturer at the Adelaide Law School. Her major research interests are in Comparative Constitutional Law and Rights Adjudication. Her PhD research examines the Australian and European Union approaches to the constitutional protection of unwritten rights.

5.30-7pm, Wednesday, 27 February 2013

Venue: Moot Court, Adelaide Law School, Ligertwood Building, North Terrace

 Members and non-members welcome. GDLP students will receive credit for attendance towards GDLP requirements (subject to application to the Law Society). Attendance at this seminar may be recognised for MCPD purposes and an attendance sheet will be provided.

RSVP by Friday 22 February to Mike Wait by email (Wait.Michael@agd.sa.gov.au)

Last year, Gabrielle Appleby and Matthew Stubbs and I wrote a submission to the Senate Legal and Constitutional Affairs Committee in relation to the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012. (An earlier blog explaining our submission with a link can be accessed here).

The Bill prevents persons arriving by boat without a visa from applying for asylum on the Australian mainland and facilitates the removal of asylum seekers to other countries for processing of their refugee claims.

The Committee invited the Adelaide team to give evidence to the Committee in Canberra, and I made the trip on Thursday 31 January. I was fortunate to give evidence in the same session as two of the leading Refugee scholars in the country, Professors Jane McAdam and Penelope Mathew.

There was a clear sense of de ja vu in the session. Both Jane and Penelope had made submissions on an almost identical Howard government Bill in 2006. That Bill was eventually withdrawn when it became clear that it would be defeated in the Senate.

Ironically, the current Chair of the Committee, Senator Trish Crossin, wrote a very strong dissenting report highly critical of the 2006 Bill. It seemed unlikely that the Senator need to be reminded of the human rights concerns surrounding the latest approach to excluding asylum seekers arriving by boat from making a claim for protection on the Australian mainland.  

The tenor of discussion at the Committee hearing gave me the impression that the Bill was simply an additional part of the architecture to support off-shore processing in Nauru and Manus Island, and would pass regardless of its breach of Australia’s international human rights obligations, regardless of what evidence was put to the Committee and, indeed, regardless of what recommendations the Committee might make in relation to the Bill. Just how committed the government is to off-shore processing is evident from a report in the Weekend Australian on February 2-3, 2013, ‘Asylum solution built to last’ which details the construction on Nauru of a permanent detention facility with concrete foundations for a cost of more than $70 million. Construction is well underway.

The Committee will report on 25 February 2013.

Alexander Reilly is an Associate Professor at the University of Adelaide Law School.

I have previously considered Indigenous representation in the Australian Parliament in my article ‘Dedicated Seats in the Federal Parliament for Indigenous Australians: the theoretical case and its practical possibility’ published in Balayi: Culture, Law and Colonialism, Volume 2(1), 2001.

The article was heavily cited in a report prepared by Brian Lloyd for the Department of Parliamentary Services on Indigenous Representation in 2009. There have only been three Indigenous representatives in the history of the Australian Parliament, Neville Bonner and Aden Ridgeway in the Senate, and Ken Wyatt who is currently a sitting member in the House of Representatives. The Labor Party has never had an Indigenous representative. The fact that the Prime Minister played a direct role in the selection of Nova Peris as a Labor candidate for the Northern Territory at the next election, ignoring the regular pre-selection process and overlooking the incumbent member, indicates how important the Prime Minister believes Indigenous representation to be.

The small number of Indigenous members of the Federal Parliament and the apparent difficulty the major parties have in fielding Indigenous candidates in winnable seats raises the question whether there ought not to be a guaranteed place for Indigenous Australians in the Federal Parliament, not aligned to either major party.

In my article, I noted that dedicated seats are controversial because they seem to undermine basic liberal democratic principles of equality, represented in our electoral system by the principle of voting equality.

And yet special representation is not foreign to Australian democracy as the equal representation of the states in the senate bares testament. Anne Phillips suggests that the more diverse the gender, culture and class of our representatives, the more dynamic will be our experience of being represented [Phillips, Politics of Presence (1995)]. Phillips acknowledges that there is a danger that identifying and reflecting group difference in Parliament will entrench those differences, and that it is difficult to hold group representatives accountable because members of a cultural group may have divergent political beliefs. Iris Young is less concerned about political differences within groups, arguing that there are core concerns that unify the group. This is certainly true of Indigenous Australians. Young takes an even stronger line in favour of group representation, arguing it is fundamental to justice. Without it, the rules and norms of the majority and historically powerful are indomitable [Iris Young, Justice and the Politics of Difference (1990)]. 

To conclude the Radio National interview, I was invited to comment on how Nova ‘would fare’ in Parliament. I noted that the Senate is a more appropriate home for an Indigenous representative than the House of Representatives. The Senate is able to take a broader policy view, unencumbered by electorate responsibilities. Within the Senate, it is arguably most appropriate for an Indigenous representative to be a senator for the Northern Territory given the high proportion of Indigenous Australians in the Territory. But Peris’ success will ultimately depend on the support she receives from the Parliament and her Party, and her ability to negotiate the many pressures she will face as a new Parliamentarian. And then there are the particular responsibilities and challenges faced by Indigenous representatives as the parliamentary careers of Neville Bonner and Aden Ridgeway illustrate. I wish her well.

Alexander Reilly is an Associate Professor at the Adelaide Law School.