The Law and Policy of Indigenous Cultural Identity and Political Participation: A Comparative Analysis between Australia, Canada and New Zealand

  • Dani Larkin

Student thesis: Doctoral Thesis

Abstract

This thesis examines the Commonwealth electoral laws, policies and processes of Australia, and indoing so, highlights where substantial inequality barriers exist that limit the political participation ofAboriginal Australians. The thesis acknowledges that Indigenous Australians comprise two distinctcultural identities (Aboriginal People and Torres Strait Islanders) who share different experienceswith disenfranchisement in Australia, despite shared similar colonised pasts. This research primarilyfocuses on the disenfranchisement experiences of Aboriginal Australians. It is argued that the lowpolitical participation rates prevalent amongst Australia’s Aboriginal population point to in adequate adherence by Australian governments to principles of representative democracy and proportionality.In particular, formalised voting rights and candidacy rights within the Australian Constitution, case law and Commonwealth electoral legislation do not adequately address current barriers to Aboriginal political participation. Contextual understandings of Aboriginal experiences are discussed that surround the disenfranchisement of prisoners and the disproportionately high rates of Aboriginal incarceration. Aboriginal prisoners are particularly vulnerable to falling into the‘unsound mind’ electoral disqualification. The culmination of each of these legislative and policy barriers limits their ability not only to qualify as electors, but also to run for political office.

Potential solutions to overcoming those issues are sought from the comparator countries of Canada and New Zealand. Canada, for instance, is supportive and inclusive of prisoners exercising their democratic rights to vote as citizens, even whilst incarcerated for a lengthy term of imprisonment. The case law supportive of such an approach is considered, alongside electoral laws and policies of Canada that protect First Nations self-determination rights expressed and  exercised through voting.
New Zealand is also more aligned with proportionate representative democratic practices as evidenced with its Mixed Member Proportionate system. This thesis particularly examines its establishment of the Maori Electoral Roll Option and Maori designated seats in Parliament as policy and institutional solutions that support Maori self-determination and political participation.
 Lastly, the Uluru Statement from the Heart proposals that call for the establishment of a First Nation Voice to Parliament, Makarrata Commission and Truth-Telling Commission are other means this thesis deems integral for Aboriginal self-determination and political participation. Similar Indigenous representative bodies established in New Zealand and Canada that have evidenced meaningful impact and protection of their Indigenous Peoples’ cultural identity are considered in terms of their design and structures
Ultimately, this thesis suggests that Australia should reform its current electoral laws, policies and processes that limit Aboriginal political participation and self-determination, in ways that are more reflective of models and outcomes established in Canada and New Zealand which are beneficial to their respective Indigenous Peoples.
Date of AwardOct 2020
Original languageEnglish
SupervisorJonathan Crowe (Supervisor) & Kate Galloway (Supervisor)

Cite this

The Law and Policy of Indigenous Cultural Identity and Political Participation: A Comparative Analysis between Australia, Canada and New Zealand
Larkin, D. (Author). Oct 2020

Student thesis: Doctoral Thesis