So are the courts involved with the Voice or not?
11 March 2023
‘It’s not happening. And it’s good that it is happening.’
This phrase came to mind after witnessing an apparent about-face from pro-Voice advocates, who are beginning to say now after months of denial, that the courts will be instrumental in deciding how the federal government’s proposed indigenous-only Voice to parliament will operate.
In a 21 February opinion article in the Australian, George Williams, the deputy vice-chancellor and professor of law at the University of NSW stated, ‘If the Australian people vote Yes at this year’s referendum [to enshrine the Voice], we can expect the courts will play a role in the operation of the Voice.’
Likewise, law professors Gabrielle Appleby and Ron Levy stated in a piece in the Australian Financial Review regarding the Voice, ‘that the courts should have a role, and that there might be litigation from time to time, simply reflects our existing constitutional tradition’.
Williams and Appleby are both prominent constitutional law commentators and have provided a significant amount of the public advocacy within academia for the Voice. So when they say the courts will be actively involved in determining the role of the Voice, this signifies a major shift in the debate.
It was only a month earlier that the Prime Minister attempted to assure Australians that the Voice would be non-justiciable. To say something is non-justiciable is to say that something cannot be challenged in the courts – or in the PMs words during an interview with Ben Fordham, the Voice will not ‘lead to a lawyers’ picnic’.
The Prime Minister undoubtedly believed he was on safe ground to say this, given most of the thinking behind the Voice up to that point had been asserting the exact same thing.
Shireen Morris, the director of the Radical Centre Reform Lab at Macquarie University, wrote in the Conversation in October that ‘non-justiciable constitutional clauses respect parliamentary supremacy. It means courts don’t get involved…. A constitutionally guaranteed First Nations Voice is intended to be non-justiciable.’
And in a speech in November, former High Court judge Kenneth Hayne said, ‘So what exactly is this fear that is raised when it is said “Oh, the courts will get into this space”? I think the more you look, the less there is to see. The fear is baseless.’
This view had also been shared in February by former High Court chief justice Robert French who believed the current wording of the referendum question left ‘little or no room for constitutional litigation’.
In just weeks, senior legal minds in the Voice camp have repudiated not only the Prime Minister, but former high court judges, making the obvious point that constitutional provisions are allowed to be tested in the courts.
‘Every constitutional provision, and indeed every law, raises the prospect of oversight by the courts…. The High Court might be called on to ensure the Voice stays within its constitutional limits.’
And that’s the rub – the only way for the courts to make determinations about the constitutional limits of the Voice is if the court determines where the constitutional limits of the Voice lie.
Williams et al. now want Australians to believe that of course the courts will play a role in deciding how the Voice will work, but that this is normal and not a cause for concern. They are making guarantees they could never keep.
As recent research by the Institute of Public Affairs revealed, New Zealanders went through a similar experience of seeing how judicial activism was able to radically transform its system of governance. New Zealand doesn’t have a written constitution, but legal instruments such as the Treaty of Waitangi have, through activist court decisions, formed a central piece of the country’s unwritten constitution.
In New Zealand’s famous Lands case of 1987 (think a Kiwi version of our Mabo case) the New Zealand Court of Appeal looked into the then decade-old Waitangi Tribunal, which had originally been established to make recommendations to the parliament about claims under the Treaty of Waitangi. The Court of Appeal uncovered ‘treaty principles’, including the principle that the government must provide redress where the Waitangi Tribunal finds merit in a claim of grievance.
The ‘treaty principles’ are the foundation of New Zealand’s two-nations-in-one model of government known as ‘co-governance’. This is reinforced at every turn by the Waitangi Tribunal, which, thanks to the New Zealand courts, has become a powerful, quasi-judicial authority, imposing its ‘advice’ in every aspect of governmental decision making.
Australians are no strangers to judicial activism. Our High Court has a long history of finding meaning hidden between the lines of the constitutional text to create ‘implied rights’. It was only three years ago that the High Court decided in Love/Thoms v. The Commonwealth that there existed a separate category of citizenship set aside for people of Aboriginal descent.
This was, according to the words of one judge, based on the principle not in the text of the constitution but rather that the ‘identity of Aboriginal people, whether citizens or non-citizens, is shaped by a fundamental spiritual and cultural sense of belonging to Australia’ which takes the form of ‘metaphysical bonds’.
The judge who said this – James Edelman – will likely serve on the court until he reaches the mandatory retirement age in 2044, giving him alone plenty of time to apply the same kind of reasoning to the Voice.
Since we have no way of knowing who will be on the High Court alongside Edelman, assuring Australians that they have nothing to worry about from the courts is nothing more than gaslighting the public to disbelieve the obvious – that the Voice is a dangerous idea that will diminish our democracy and divide Australians.
Got something to add? Join the discussion and comment below.
Morgan Begg is the Director of Research at the Institute of Public Affairs