As Aboriginal public lawyers, we have grave concerns that the Federal Government’s voter integrity Bill will entrench disenfranchisement of First Nations Peoples.
The proposed Bill requires voters to produce identification before casting a vote at the ballot box on election day.
It is no surprise to many Australians that many First Nations communities are poor, and the requirement to produce identification overlooks the challenge this poses for those who cannot afford the fee to register for a birth certificate.
This may seem strange to some, but often people must make strategic decisions about their scarcity of income, and no one is going to forgo necessities for a birth certificate fee.
The Bill also poses challenges to future voters who live in remote communities with minimal access to support services and where their community has a small, spread-out population, and it is harder for those people to find someone to vouch for them.
Also, it is a barrier for our homeless population. Despite being fewer than 3 per cent of the Australian population, First Nations Peoples constitute alarmingly high statistics in each of these vulnerable categories.
According to the Australian Electoral Commission (AEC), it is estimated the Indigenous enrolment rate has lifted from 74.7 per cent in 2017 to 79.3 per cent in 2021. However, that statistic is not the full story.
It does not include the rate of voter turnout, the rate of votes being cast by First Nations voters, and those votes being counted as formal.
Research conducted by the AEC in 2016 suggests rather than the statistic that 58 per cent of Indigenous people were enrolled to vote, a more realistic enrolment figure was 50 per cent.
In addition, a private assessment conducted by Indigenous leaders, non-government and government agencies found about 25-30 per cent of Indigenous people who are enrolled cast a formal vote.
This is evidence of a lack of Indigenous political participation exercised through voting. The right to self-determination as recognised by the United Nations Declaration on the Rights of Indigenous Peoples has an external and an internal dimension.
Internally, it is about our own governance. Externally, it is about how we engage with the State.
We posit that voting rights are fundamental to the exercise of a fuller expression of Indigenous self-determination and as such, the Australian government and its electoral legislation have an obligation to formally recognise and respect those rights.
Despite Australia’s representative democratic system of governance, it often lacks due consideration of the impact of its electoral laws, policies, and processes on Indigenous citizens.
Little attention is paid to the functional architecture of democratic governance and the limitations of this on First Nations civil rights because of colonisation.
The absence of consideration of these experiences inhibits the full expression of self- determination through political participation.
Given the barriers we have identified and the fact the AEC has already confirmed that requiring voter ID is an unnecessary measure and instances of multiple voting are “vanishingly small”, it is our firm position that this Bill should be opposed.
If the Bill were to be passed through Parliament, it could see First Nations people disenfranchised and turned away from voting.
Furthermore, it would create increased wait times and long lines at polling places that will discourage many voters, particularly those who are of First Nations descent.
We do not need any more disengagement and dislocation of our peoples from the democratic system.
The trust and faith of First Nations Peoples in our political parliamentary system cannot be at a lower point.
People point to Indigenous politicians as evidence to the contrary, but the success of individuals in a party system, however laudable, is not the same as an Indigenous collective seeking to exercise their right to self-determination.
The proliferation of Indigenous politicians has not led to a shrinking of the gap in disadvantage.
This is because it is the structures of the State that animate our exclusion as First Nations collectives, and this exclusion is a major driver of disadvantage and dislocation.
This Bill serves only to entrench that exclusion. We need First Nations Peoples and communities more actively involved in the law and policy process, not less.
Not only is this Bill a deterrent to active engagement in the democratic life of the State, but the Bill also demonstrates why a Voice to Parliament is needed.
A co-ordinated approach from the Voice would assist politicians like Senator Patrick Dodson in his valiant efforts to stop this Bill from disenfranchising our people.
More importantly, the Voice would have had to be consulted about the Bill in its infancy — because constitutional enshrinement would compel the State to consult us. It would have had time to consult communities, push back and mobilise.
This, after all, is what democracy is all about. Australians have a compulsory voting obligation once enrolled.
We want as many First Nations People as possible to be politically engaged and to have their say at the next election, and not to be blocked from voting and then being fined.
By Dani Larkin & Megan Davis
Dr Dani Larkin and Professor Megan Davis are directors of the Indigenous Law Centre, UNSW Law and Justice, and constitutional advisers to the Uluru Dialogue education campaign.