Establishing Membership of the First Nations Voice – An International Law Perspective
In this special mini-series as part of our Voice posts this year, we present a series of posts on the question of the future design of the Voice with a specific focus on questions of determining Indigeneity, and how this might interact with the religious freedom clause in section 116 of the Constitution. We bring you two different domestic perspectives on this issue from Michael Douglas and Luke Beck, and an international perspective from Lucas Lixinski.
25.07.2023
As we approach the referendum on the constitutional amendment that will establish and set out the core functions of the Aboriginal and Torres Strait Islander Voice, it becomes timely to think about what happens after a successful referendum.
In this post, I want to reflect on the question of who will eventually form this body – a question that has appeared in a lot of public debate. In other words, who is eligible to represent the many views of Aboriginal and Torres Strait Islander people? On what basis will the representatives be selected? These answers are important. The government’s Referendum Working Group and Engagement Group has set out a number of principles to govern the future design of the Voice after a referendum. These include that the Voice will be:
chosen by Aboriginal and Torres Strait Islander people based on the wishes of local communities;
representative of Aboriginal and Torres Strait Islander communities, gender balanced and include youth; and
empowering, community-led, inclusive, respectful, and culturally informed.
In this post, I will consider what international law has to say about the question of eligibility to stand as a representative on Indigenous political institutions. Fundamentally, international law reinforces the Referendum Working Group and Engagement Group principles: that the exercise of choosing who represents Aboriginal and Torres Strait Islander peoples on the Voice must be one of self-determination. It is for Aboriginal and Torres Strait Islander peoples to decide on their own terms the composition of this body and who is eligible to be a representative. This choice may often look different from Western models, and also often different from the expectations historically imposed on Indigenous peoples. Those differences, or lack thereof, are self-determination in practice.
The Choice of Representatives as Self-Determination
Self-determination is a central concept to all peoples in the world, Indigenous and otherwise. It is the idea that each people gets to 'freely determine their political status', as indicated by the International Covenant on Civil and Political Rights (ICCPR), an international treaty into which Australia entered voluntarily and to which it is bound. Part of determining one’s political status is to allow people to vote and be voted on (ICCPR, Article 25). Limitations to this right are considered very suspicious, given the fundamental role of political rights to democracy and the democratic societies that are largely preconditions to respect for human rights across the board.
When it comes to Indigenous peoples, the same ideas that apply to everyone else apply here. Political rights in an Indigenous context also means the right 'to maintain and strengthen [Indigenous peoples’] distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State'. This provision, Article 5 in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) which Australia endorsed, tells us that Indigenous self-determination includes Indigenous peoples creating their own institutions. The Voice is just that.
The UNDRIP also reinforces the point in Article 18, declaring 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, as well as to maintain and develop their own indigenous decision-making institutions'. The Voice is this provision coming alive.
Who has the right to be chosen as a representative?
More specifically, though, how do these principles apply to who might be eligible to be a representative on the Voice? Under the proposed new s 129, these matters are not set out in the Constitution, which requires only that the body meet the criteria of an “Aboriginal and Torres Strait Islander Voice”.
The Government’s detailed design principles indicate that 'Members of the Voice would be Aboriginal and/or Torres Strait Islander, according to the standard three-part test'. This test was a governmental definition, endorsed in Mabo (No. 2) that requires descent, self-identification at the individual level, and acceptance in the community at the collective level. In the rest of this post, I will look at each of these requirements from the perspective of international law.
Biological descent requirements under international law
An eligibility requirement of biological descent is controversial, in Australia, as well as under international law. It was recently the subject of a discontinued High Court challenge as to whether this requirement was constitutionally required, in a case involving a man who had been culturally adopted into an Aboriginal community.
Under international law, things are also complicated. While one international definition does mention descent, for the most part the criterion is empty of any content, and cannot be used discriminatorily. Specifically, no restrictions are permitted on the right be chosen as a representative on the basis of a person’s origin. The Human Rights Committee, the body who oversees the implementation of the International Covenant on Civil and Political Rights, has examined this right in detail. It has said that 'Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as … descent'.
The discriminatory and problematic nature of descent as a requirement reflects a tendency of non-Indigenous people and governments to create a system of 'checks' for how Indigenous peoples exercise their own rights. This tendency has often manifested in tests for whether individuals are 'truly' Indigenous. These tests have historical roots in paternalistic policies and should be reassessed against contemporary understandings of what Indigenous self-determination requires.
Individual & collective acceptance under international law
The three-part test also puts mutual acceptance by the community as an important part of a person’s identity. The test requires mutual recognition of a person’s membership of the Indigenous group by both the person and by elders or other persons enjoying traditional authority in that group. This element is uncontroversial to the best of my knowledge, and in fact a welcome exercise of collective legal personality by Indigenous peoples.
Traditional authority has been described in many ways, and is connected to the deep spirituality held by Aboriginal and Torres Strait Islander people as it manifests in their connection to Country. Under international law, culture is treated as a precondition or threshold question for Indigenous Peoples to exercise their rights. In other words, in international law Indigenous Peoples only have access to rights because they have culture (and what we call in Australia a connection to Country). Cultural connection will then turn on what is described as Indigenous spirituality, in the form of a belief system or way of seeing the world and the universe and the relevant Indigenous People’s and people’s place in the world and the universe. In this particular context, therefore, spirituality is connected to culture, which gives rise to the basis for Indigenous Rights.
But spirituality also becomes largely neutral, because it functionally works as culture. The vast majority of international jurisprudence on the clash between religious and secular values reads religious practices as simply being part of culture, as being therefore rather neutral. Spirituality gets folded into a group’s morality and ethics, and it just becomes a baseline against which to measure the world and the group's behaviour in it. The displays of that religiosity therefore stop being an imposition of religion, and are simply an exercise of social ethical behaviour.
Western concepts of the separation between church and state (given some level of recognition at the Federal level in s 116 of the Constitution, which prohibits, amongst other things, a religious test as a qualification for any office under the Commonwealth) therefore have little relevance in relation to the connection between spirituality and eligibility to stand for Indigenous representative bodies.
The problem at which provisions such as s 116 are directed is not the faith of individual persons: it is its institutionalization in the form of a church that then threatens individual spirituality (or lack thereof). Australia was specifically founded on the idea of religious pluralism; of no endorsement of an official religion (unlike the English colonisers, who have the Church of England). The impetus to protect religious pluralism drives the separation between church and state in this country. It is a separation that does not want an institution (the church) to become enmeshed with another (the state).
One might think it problematic that a threshold eligibility test to stand for a non-religious, constitutional body like the Voice rests on acceptance by spiritual leaders. The separation between church and state might be blurred. This interpretation, however, misunderstands how the objectives of the separation of church and state, and Indigenous self-determination, intersect. This connection does not require – or deprive – an individual of their religion or spirituality in order to be able to represent their people. There is no test that an individual must adhere to a particular religious or spirituality. Further, Aboriginal and Torres Strait Islander peoples across Australia, to the best of my knowledge, do not have organized religions of a size that might compete with the secular state. The threat does not exist.
Therefore, if one were to require that Indigenous peoples be considered spiritual leaders to be leaders in their communities, and then excluded them from the Voice on account of their religiosity, one would be creating a Catch 22-type bind that is not only unfair to Indigenous peoples, but also one imposed on Indigenous peoples from the outside. It is non-Indigenous law that, in gatekeeping indigenous identity, requires culture and spirituality tied to that culture for the non-Indigenous person to 'certify' indigeneity. It cannot be that the same non-Indigenous law, in trying to keep church and state separate, punishes Indigenous people for having what the law requires of them.
To put it more bluntly: one cannot ask Indigenous peoples to wear a certain hat to go through the first out of two gates, and then tell them they cannot go through the second gate because they are wearing the very same hat one told them they needed to wear. Doing so would not only be illogical, it would also disrespect Indigenous self-determination.
Conclusion
In summary, the Voice is a new step in Australia’s constitutional journey, incorporating into the constitutional system a body to give effect to internationally recognised rights to Indigenous self-determination. This process raises important questions about how an Indigenous political body will be constituted. For us as non-Indigenous peoples to respect self-determination means letting Indigenous people and peoples truly control their own destinies on matters affecting them. The Voice was designed to enable Indigenous peoples taking charge of themselves, now we just need to get out of their way.
Dr Lucas Lixinski is Professor at the Faculty of Law & Justice, UNSW Sydney.
Suggested citation: Lucas Lixinski, ‘Establishing Membership of the First Nations Voice – An International Law Perspective’ on AUSPUBLAW (25 July 2023) <https://www.auspublaw.org/blog/2023/7/establishing-membership-of-the-first-nations-voice-an-international-law-perspective/>