(MENAFN- The Conversation) Australians will soon vote in a referendum on a First Nations Voice – a constitutionally guaranteed body empowering Indigenous communities to advise parliament and government on Indigenous affairs, as advocated by .
Prime Minister Anthony Albanese has released a requiring parliament to establish the Voice.
However, have raised concerns about“judicial activism”. They worry the High Court might interpret the provisions in unpredictable ways, creating legal uncertainty.
Careful constitutional drafting can address such concerns by making the amendment“non-justiciable”.
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.
The amendment can now be perfected to remove any doubt that parliament will be charge of its operation, not judges.
Prime Minister Anthony Albanese has released a draft constitutional amendment requiring parliament to establish a Voice to Parliament. AAP Image/Aaron Bunch Read more:
What's been proposed
The government's draft constitutional amendment reads:
This is modest and reasonable, but can be refined.
Clause two could be revised to read (bolding is author's addition):
Adding“proposed laws” will non-justiciability. It will fortify the amendment against criticism. It will help answer concerns about uncertain judicial interpretation.
Constitutional clauses referring to“proposed laws” are 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 that parliament's internal affairs are“not subject to […] review by a court of law”.
As former High Court judge Edward McTiernan once said,“Parliament is master in its own household.”
Why 'proposed laws' is a key phrase
The“proposed laws” suggestion is not new.
Back in 2014, Indigenous leaders and constitutional conservatives – experts anxious to protect the Constitution from judicial activism – on how to achieve the empowering constitutional recognition Indigenous peoples sought, without creating High Court uncertainty.
The solution was a constitutionally guaranteed Indigenous advisory body, which would work through political dialogue, rather than through the courts.
Constitutional law expert Professor Anne Twomey suggested in 2015. It used the phrase“proposed laws”, which she noted was:
Legal scholars Professors Megan Davis and Gabrielle Appleby how Twomey's 2015 suggestion informed the First Nations dialogues that culminated in the Uluru Statement's 2017 call for a constitutionally guaranteed First Nations Voice.
In its 2017 , the government-appointed Referendum Council affirmed the Voice amendment must be non-justiciable, noting:
However, the“proposed laws” approach only works with standalone provisions that do not limit parliament's law-making power.
a“duty to consult” within an Indigenous head of power as constitutional change should be commended for engaging productively, but are on the wrong track. These formulations limit parliament's power, creating uncertainty for courts to resolve.
The government's approach is more modest and workable, and should be refined.
The government-appointed Referendum Council affirmed the Voice amendment must be non-justiciable. AAP Image/Paul Miller Better than other proposals
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 Indigenous recognition.
An earlier for a constitutional ban on racially discriminatory laws would courts to strike down parliament's laws.
Proposals for a new preamble acknowledging Indigenous peoples could yield unpredictable judicial interpretations of the whole Constitution. Constitutional conservatives oppose a symbolic insertion 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 solution.
The Uluru Statement was released in 2017. AAP Image/Lukas Coch On the question of scope
Non-justiciability also means those trying to the issues on which the Voice can provide advice are missing the point. If properly drafted, scope issues would be resolved by parliament through legislation.
And why would politicians want to unnaturally limit the Voice's ability to give non-binding advice on matters that are important to Indigenous communities? Environmental laws, for example, might not directly target Indigenous people but may yield negative consequences for economic development on Indigenous land. Indigenous communities may 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.
Equally, those seeking to constitutionalise a broad scope should remember the Referendum Council's directive: as the final report made clear, scope issues should be resolved by parliament, not judges.
Let's work together
Experts should keep non-justiciability firmly in mind when suggesting improvements to the government's draft constitutional amendment.
We need an efficient bipartisan process to refine and agree on the Voice amendment.
The phrase“proposed laws” should be included to confirm parliament will be in charge, not the courts.
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