One simple change will keep Indigenous voice out of the courts

Ceremonial dance during the Garma Festival in northeast Arnhem Land, Northern Territory, Friday, July 29, 2022. (AAP Image/Aaron Bunch)

The Albanese government’s draft amendment for a First Nations voice is modest and reasonable but can be improved. It can be refined to address more explicitly worries about potential judicial activism – the concern that the High Court might interpret the provisions in unpredictable ways, creating legal uncertainty.

A First Nations voice always was intended to be non-justiciable. Non-justiciable constitu­tional clauses respect parlia­mentary sup­remacy. It means courts don’t get involved. Prudent constitutional drafting can ensure this. The amendment can be perfected to remove any doubt that parliament will be in charge of its operation, not the courts.

The words “proposed laws” should be included to confirm parliament’s authority, not the courts. Clause two of the draft amendment could be revised to read: “The Aboriginal and Torres Strait Islander voice may make representations to parliament and the executive government on proposed laws and matters relating to Aboriginal and Torres Strait Islander peoples.” Adding “proposed laws” will confirm and signpost non-justiciability. It will fortify the amendment against criticism and help answer concerns about uncertain judicial interpretation.

Constitutional clauses referring to proposed laws have long been considered unenforceable by the courts. This is because the High Court deals with laws while proposed laws are parliament’s business. Australia’s first chief justice and founding father of the Constitution, Samuel Griffith, explained in 1911 that parliament’s internal affairs were “not subject to … review by a court of law”. This is because, as former High Court judge Edward McTiernan explained, “Parliament is master in its own household.”

A constitutionally guaranteed First Nations voice was always intended to be a non-justiciable constitutional reform.

In 2014, Indigenous leaders worked with constitutional conservatives to find a way of achieving the empowering and substantive constitutional recognition Indigenous people wanted, without enlivening High Court uncertainty. The solution devised was a constitutionally guaranteed Indigenous advisory body – established under a non-justiciable constitutional amendment – that would work through political dialogue rather than litigation.

Constitutional law professor Anne Twomey published a draft amendment in 2015 that incorporated “proposed laws” to confirm non-justiciability. As Twomey explained, these words were “deliberately employed to indicate that this is an internal parliamentary process that cannot be interfered with or enforced by the courts”.

Law professors Megan Davis and Gabrielle Appleby recently recalled how Twomey’s 2015 suggestion informed the First Nations dialogues that culminated in the Uluru Statement from the Heart’s 2017 call for a constitutionally guaranteed First Nations voice. The Referendum Council subsequently affirmed the voice amendment must be non-justiciable.

However, the “proposed laws” approach works only with stand-alone provisions that do not limit parliament’s lawmaking power. Those suggesting a “duty to consult” within an Indigenous head of power as a more modest constitutional change are misguided. These formulations substantively limit parliament’s power, creating uncertainty for courts to resolve. The government’s approach is more modest and workable and should be refined.

Non-justiciability also means those trying to excessively limit the issues on which the voice can provide advice are missing the point. If properly drafted to be non-justiciable, scope issues would be resolved by parliament through legislation. Why would policymakers want to inflexibly limit the voice’s ability to give non-binding advice on matters important to Indigenous communities?

Environmental laws, for example, might not target Indigenous people directly but might yield adverse consequences for economic develop­ment on Indigenous land. Indigenous communities might wish to alert government to the impacts of such policies. To prohibit such advice would undercut a key practical benefit of the voice.

Flexibility and common sense are needed here. The legislation can clarify and list the matters for which the voice should provide advice, such as native title reforms, closing the gap measures, violence and economic development policies in Indigenous communities. But it should also enable flexibility and discretion. Importantly, parliament would be in charge of rules around scope, which can be adjusted as necessary. The legislation also can confirm scope issues are non-justiciable, as is common in statutes regulating policymaking processes. The intent to keep the voice amendment away from the courts and under the purview of parliament sets it apart from all other options for recognition.

The expert panel’s 2012 proposal for a constitutional prohibition on racially discriminatory laws would enable courts to invalidate parliament’s laws. A new preamble could likewise yield unpredictable judicial interpretations of the whole Constitution. Constitutional conservatives oppose both proposals for this reason.

By contrast, a constitutionally guaranteed voice intends to keep policy matters out of the courts for resolution through political processes. It is the most legally sound and constitutionally conservative solution. That is the present opportunity. The most constitutionally conservative solution to Indigenous constitutional recognition has won Indigenous consensus through the Uluru statement. The government’s draft amendment can now be perfected to ensure parliament oversees its operation, not the courts.

Shireen Morris is director of the Radical Centre Reform Lab at Macquarie Law School and author of Radical Heart: Three Stories Make Us One (MUP).