Refining and Agreeing on a Constitutional Amendment for a First Nations Voice

Re ning and Agreeing on a Constitutional Amendment for a First Nations Voice

Shireen Morris*

* Senior lecturer (PhD) and Director of the Radical Centre Reform Lab at Macquarie University Law School. The author is grateful for the generous support of Foundation Donors, Henry and Marcia Pinskier, and valuable research assistance by Billy McEvoy.

I Introduction

In 2017, the Uluru Statement from the Heart issued a powerful invitation to the Australian people: it called for a ‘First Nations Voice enshrined in the Constitution’.1 In July 2022, the Prime Minister released a draft constitutional amendment guaranteeing a First Nations Voice for further consultation. Adapting similar amendments proposed over the years, it reads:

There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.

The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive government on matters relating to Aboriginal and Torres Strait Islander Peoples.

The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.2

This article applies the Referendum Council’s suggested parameters for constitutional drafting to compare alternative proposals and suggest avenues for re nement of the Government’s draft.

I make three suggestions to enhance the clarity of debate about the upcoming Voice referendum. First, the words ‘proposed laws’ should be included in the amendment to con rm and signpost non-justiciability. This will fortify the amendment against criticism and help answer concerns about uncertain High Court adjudication. Second, we should be clear that incorporating a duty to consult in the head of power, as some propose, will generally fall foul of the nonjusticiability criteria. Third, I outline an ef cient bipartisan process by which the Government, the Opposition and Indigenous representatives might collaboratively re ne and agree on the words of the amendment to put to the people.

II Proposed Parameters for Constitutional Drafting

The Referendum Council’s 2017 report endorses the idea of a constitutionally guaranteed First Nations Voice. The rst recommendation suggests that a constitutional amendment should require Parliament to establish a ‘representative body’ that enables a ‘Voice to the Commonwealth Parliament’.3 It also provides principles to guide drafting discussions. First, the proposed Indigenous advisory body should

be guaranteed by the Constitution but set up in legislation,4 with other functions provided in statute.5 Legislation would articulate the body’s processes and institutional design,6 allowing for exibility and evolution.

Second, the Referendum Council emphasised that the body should be advisory and should not have ‘any kind of veto power’.7 The amendment must not ‘interfere with parliamentary supremacy’ and so must ‘not be justiciable’.8 This emphasis on parliamentary supremacy9 was informed by the political context and history. In recommending a constitutional Voice, the Referendum Council was responding to political objections to a racial non-discrimination guarantee as advocated by previous reports.10 It explained that the proposed approach took account of those objections and therefore endorsed ‘an institutional alternative — a Voice to the Parliament’.11 A constitutionally guaranteed First Nations Voice was the non-justiciable alternative to a racial non-discrimination guarantee.12 Non-justiciability addresses political concerns about legal uncertainty arising from judicially adjudicated rights guarantees and speaks to the desire to maintain parliamentary supremacy over policy questions.13

Third, the Referendum Council recommended an amendment requiring Parliament to establish an Indigenous ‘body’, describing a national Indigenous advisory and representative body. Records from the First Nations regional dialogues also envision a national Indigenous body guaranteed by the Constitution. 14

Broad parameters to guide re nement of, and agreement on, the constitutional amendment can be drawn from the Referendum Council’s directives. The amendment should:

1. constitutionally guarantee an Indigenous advisory body; 2. not give rise to any veto; 3. be non-justiciable; 4. minimise legal uncertainty; and 5. defer most institutional design details to Parliament.15

To these considerations, I would add the related criteria that the amendment is in keeping with the text and structure of the Constitution to enhance predictability. Most of these criteria are self-explanatory and can be assessed through ordinary interpretation of any proposed amendment. The question of non-justiciability warrants further discussion.

III Non-Justiciability

Non-justiciable constitutional clauses respect parliamentary supremacy. Courts do not get involved in the adjudication of such clauses, which generally arise in relation to the internal workings of Parliament. Constitutional clauses relating to ‘proposed laws’ have long been considered non-justiciable. Non-justiciability recognises ‘the primacy of the political process and the subsidiary role of the judiciary’ on these matters.16

In the Indigenous constitutional recognition debate, the political concern to avoid legal uncertainty and maintain parliamentary supremacy has regularly been expressed through the inclusion of ‘no legal effect clauses’ in state constitutions that recognise Indigenous peoples in preambles or speci c clauses.17 This approach is undesirable for four reasons. First, it has been previously established that ‘no legal effect’ clauses would not be supported by Indigenous people.18 Second, such clauses are constitutionally odd, inelegant and ill- tting: there is no existing provision in the Constitution that uses such a caveat to prohibit legal effects. Third, respected constitutional scholars suggest that a ‘no legal effect’ clause would be ineffective.19 Fourth, such a clause is unnecessary, because non-justiciability can be elegantly incorporated into constitutional drafting and design without any ‘no legal effect’ clause.

There are existing non-justiciable provisions in the Constitution, 20 which can be sensibly emulated. Both the drafters of the Constitution21 and the High Court have interpreted these sections as non-justiciable22 because they refer to ‘proposed laws’, indicating they are internal rules to govern Parliament’s lawmaking processes. Grif th CJ explained in 1911 that provisions dealing with ‘“proposed laws” … are directed to the Houses of Parliament whose conduct of their internal affairs is not subject to review by a Court of law’.23 The High Court in 1995 reiterated that Courts do not interfere in the ‘intra-mural activities of the Parliament’.24

This is because the judiciary’s role is to deal ‘with what is law rather than proposals to make law’.25 The non-justiciability of such clauses re ects the fact that, in the words of McTiernan J, ‘Parliament is master in its own household’.26

A constitutionally guaranteed First Nations Voice is intended to be nonjusticiable.27 In 2015, Professor Anne Twomey kicked off discussion about drafting a constitutionally guaranteed Indigenous advisory body with an amendment that utilised ‘proposed laws’ to indicate non-justiciability. Twomey explained that the amendment would create a ‘political and moral obligation upon members of parliament to ful l their constitutional role in giving consideration’ to the advice of the Indigenous body, but ‘it would be for the houses, not the courts, to ensure that this obligation is met’.28

I would go further: such a non-justiciable obligation would be constitutional.29 Non-justiciable constitutional clauses do not necessarily carry less authority. As Gleeson CJ has noted, ‘the rule of law does not require all possible disputes to be justiciable, or all grievances to be resolved by litigation’.30 While a non-justiciable amendment would preclude recourse to the High Court,31 a Voice established with the blessing of Australians through a referendum would carry special authority.32

IV Previous Iterations of the Government’s Draft Amendment

It helps to understand previous iterations of the Government’s 2022 draft amendment, so these can be compared. The rst was Twomey’s 2015 proposal, referred to above, which suggested a new Ch 1A of the Constitution:

60A(1) There shall be an Aboriginal and Torres Strait Islander body, to be called the [insert appropriate name, perhaps drawn from an Aboriginal or Torres Strait Islander language], which shall have the function of providing advice to the Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.

(2) The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, roles, powers and procedures of the [body].

(3) The Prime Minister [or the Speaker/President of the Senate] shall cause a copy of the [body’s] advice to be tabled in each House of Parliament as soon as practicable after receiving it.

(4) The House of Representatives and the Senate shall give consideration to the tabled advice of the [body] in debating proposed laws with respect to Aboriginal and Torres Strait Islander peoples.33

The amendment establishes three constitutional guarantees: the requirement that Parliament establishes the institution, the requirement that the advice is tabled, and the requirement that the Houses consider the advice. While s 60A(4) creates a constitutional obligation for Parliament to consider the body’s advice in debating proposed laws in the Parliament, s 60A(1) empowers the body to advise the Executive. Legislation or internal parliamentary practice could set in place further procedures for the body to engage with government on Indigenous policy development. The amendment is non-justiciable and use of ‘proposed laws’ signposts nonjusticiability. Importantly, the procedure is designed so it cannot delay Parliament if no advice is received, con rming respect for parliamentary supremacy.

V Omitting the Tabling Procedure

Other amendments have built upon Twomey’s 2015 proposal. Most prominently, Indigenous leaders Megan Davis, Noel Pearson and Pat Anderson with other experts at the University of New South Wales put forward similar drafting in 2018, omitting the parliamentary tabling procedure:

1. There shall be a First Nations Voice. 2. The First Nations Voice shall present its views to Parliament and the Executive on matters relating to Aboriginal and Torres Strait Islander peoples.

The change from ‘providing advice’ to ‘present[ing] its views’ is a shift in the nomenclature of mostly symbolic rather than substantive effect. The submission clari es that the Voice’s power to present its views ‘imposes no concomitant obligation on the Parliament’ to follow or implement those views, which is ‘[c]onsistent with the understanding that the Voice should not have the power of veto’.35 Further, it ‘leaves to legislation the extent to which, and how, the Parliament and the Executive might respond to the views presented’.36 Accordingly, the views presented would be non-binding — essentially advisory.

The submission argues that the amendment is non-justiciable because it would ‘be viewed by the Court as an intramural proceeding’ within ‘a pre-legislative process’.37 This assertion is bolstered by sub-s (3). Any ambiguity arising regarding what constitutes a First Nations Voice is mitigated by sub-s (3), which indicates that such matters are for Parliament to resolve. However, non-justiciability could be more forthrightly demonstrated through the incorporation of ‘proposed laws’ and by minimising ambiguous language.

Ambiguity arises in two respects. First, there is ambiguity in relation to what constitutes a First Nations Voice: this is not concrete institutional language like ‘an Aboriginal and Torres Strait Islander body’ as used in Twomey’s 2015 drafting. Second, the phrase ‘shall present its views’ may entail uncertainty. While this issue is answered by sub-s (3), which emphasises that Parliament can legislate procedures giving effect to this constitutional imperative and demonstrating what constitutes ‘presenting its views’ is a political question, incorporating the language of ‘proposed laws’ would help con rm non-justiciability. Such language could be included in sub-s (2), which could be adjusted to provide: ‘The First Nations Voice shall present its views to Parliament and the Executive on proposed laws and matters relating to Aboriginal and Torres Strait Islander peoples.’

Dr Gabrielle Appleby published a re nement of the 2018 drafting in 2020:

1. There shall be a body, to be called the First Nations Voice 2. The First Nations Voice: - shall present its views to Parliament and the Executive on matters relating to Aboriginal and Torres Strait Islander peoples; and - may perform such additional functions as the Parliament provides 3. The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the First Nations Voice.38

This version addresses ambiguity surrounding what constitutes a First Nations Voice by clarifying it is ‘a body’ (and, under sub-s (3), the form of the body is for Parliament to determine) but retains ambiguity in relation to the words ‘present its views’ and still omits ‘proposed laws’, which would help signpost non-justiciability. Subsection (2) prompts Parliament to give the body some additional functions, which seems unnecessary; Parliament would not be precluded from conferring additional functions, consistent with the Constitution.

An important observation should be made with respect to the discretion given to Parliament to determine the form of the Indigenous body. In advocating this drafting and attempting to distinguish other formulations,39 Appleby criticises amendments that ‘leave open’ how ‘hearing and speaking’ will occur. The problem with such alternative formulations, Appleby argues, is that

it would be up to the Commonwealth to decide whether it would be given effect by government action, legislation, a parliamentary committee, or a combination of all of them.

[T]he Commonwealth might choose simply to mirror the many current arrangements through which the government seeks input from Aboriginal and Torres Strait Islander people when developing policies and laws.

However, the same risks apply to Appleby’s own 2020 drafting and, indeed, all formulations discussed here. Under Appleby’s approach, sub-s (3) gives Parliament power to ‘make laws with respect to the composition, functions, powers and procedures of the First Nations Voice’, but a power to make laws is not a compulsion to use that power. Parliament retains discretion as to how to exercise its power. Any amendment41 requiring Parliament to establish an Indigenous body and empowering Parliament to determine the makeup of that body relies on elected representatives to ultimately decide what form that body takes and to evolve the institution over time — hopefully in light of advice from the Indigenous body, as required by the constitutional amendment. The body may, therefore, be politically weakened, just as it may be strengthened. In 2015, Appleby noted this possibility with respect to the proposals by Cape York Institute and Twomey, highlighting ‘a danger that if the body’s operation is made non-justiciable’ it may have ‘insuf cient political power to negotiate with the Parliament should a disagreement arise about the interpretation of its role’.42 This same risk applies to any amendment requiring political action for the establishment and design of an institution. Additionally, as advice would be non-binding and non-justiciable, it could obviously be ignored by Parliament and the government, highlighting the need for mechanisms to encourage productive engagement in the legislative design.43

The constitutional directive that Parliament must establish the body would similarly operate through political and moral pressure because the ‘peremptory command’ that there ‘shall be’ an institution ‘is not self-executing and, no doubt, is unenforceable’44 — it cannot bring a non-existent body into being. However, the imprimatur of the Australian people via a referendum would create a powerful political and constitutional obligation for Parliament to establish the body, which could not realistically be disregarded.45 This constitutional imprimatur would be a signi cant improvement on the status quo, creating an enduring constitutional requirement that Indigenous people should always be heard in their affairs.

In September 2022, the Indigenous Law Centre (‘ILC’) proposed a revision of the Government’s draft amendment:

1. There shall be a body, to be called the First Nations Voice. 2. The First Nations Voice: a. shall make representations to Parliament and to the Executive

Government of the Commonwealth on matters it deems relevant to Aboriginal and Torres Strait Islander peoples; and b. may perform such additional functions as the Parliament provides, including, at the request or with the concurrence of the Parliament of a State or Territory, the function of making representations to the

Parliament or government of that State or Territory. 3. The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the First Nations Voice, and matters incidental to the execution of the powers vested by this Constitution in the First Nations Voice.46

This drafting adds signi cant complexity. First, s 2(b) emulates the request/ concurrence mechanism provided by s 51(xxxviii) of the Constitution, and echoes the procedure suggested by the Referendum Council for the enactment of an extraconstitutional Declaration of Recognition.47 It appears intended to encourage engagement between the Voice and state/territory parliaments and governments. However, it is unclear why this additional constitutional prompt is necessary since Parliament could confer additional functions on the body that are consistent with the Constitution. Procedures and requirements for engagement between the regional arms of the First Nations Voice with corresponding state/territory governments and parliaments can be articulated in the legislation setting up the Voice and complemented by state/ territory legislation and measures. This state/territory engagement was emphasised in the recent ‘co-design’ report, which examined options for legislative design.48

Second, s 2(a) requires that the First Nations Voice shall make representations to Parliament and the Government on matters ‘it deems relevant to Aboriginal

and Torres Strait Islander peoples’. This is a signi cant departure from previous iterations that leave matters of scope to be clari ed by Parliament through legislation, in line with Referendum Council directives. By contrast, this approach constitutionally requires that the Indigenous body decide what it advises. While I agree that the Voice should have exible discretion regarding the matters on which it provides advice, this can be addressed in the legislation. In this respect, the current debate about the scope of permissible advice is overblown, because we are talking about non-binding and non-justiciable advice. Is it a problem if the body wants to give non-binding advice on matters not directly targeted at Indigenous peoples but nonetheless of importance to Indigenous communities (for example, advice on environmental laws that might affect economic development on Indigenous land)? To ban such advice would undercut a key practical bene t of the Voice. Flexibility and common sense are needed here. However, it is unnecessary to mandate this discretion in the constitutional amendment.

Non-justiciability can be con rmed by removing the constitutional speci cation that the Indigenous body must determine which matters it advises on. Procedures to exibly manage the scope issue — including specifying how the body can exercise discretion — can instead be articulated in the legislation, con rming parliamentary supremacy over design and operation in line with the Referendum Council’s directives. And again, the words ‘proposed laws’ could be included to signpost non-justiciability.

VI One-Paragraph Formulations

In 2020, I proposed a shorter, one-paragraph formulation: ‘Parliament shall by law make provision for constituting a First Nations body to advise Parliament and the Executive on proposed laws and other matters relating to Aboriginal and Torres Strait Islander affairs.’49 Upon consideration, the words ‘Parliament shall by law…’ are not in keeping with the phraseology of the Constitution, so may not be appropriate. By contrast, ‘There shall be…’ emulates s 101 of the Constitution and is more in keeping with the Constitution’s text and structure.

In 2022, after the Government released its draft amendment, Frank Brennan proposed this alternative: ‘There shall be an Aboriginal and Torres Strait Islander voice with such structure and functions as the parliament deems necessary to facilitate consultation prior to the making of special laws with respect to Aborigines and Torres Strait Islanders.’50 There are several problems with this amendment. First, the word ‘voice’ is not de ned so creates ambiguity ripe for judicial interpretation. Second, while Brennan uses the phrase ‘special laws’ to echo the language of s 51(xxvi), the race power,51 there is no mention of ‘proposed laws’ to indicate non-justiciability. Third, the amendment appears to require consultation with Indigenous people ‘prior to’ special laws being made about them. Presumably, laws enacted in contradiction to this requirement could be invalidated. Because it may be justiciable, this variation falls outside the Referendum Council’s parameters. It would be improved by adjusting the amendment to clarify that a Voice is an Indigenous body, by inserting ‘proposed laws’ to indicate non-justiciability, and by removing the requirement that consultation must occur prior to the making of relevant laws.

The above discussion shows there are many ways an amendment requiring the establishment of an Indigenous body can be achieved. Re nements can ensure non-justiciability and respect for parliamentary supremacy in line with the Referendum Council’s recommendations. The following part discusses how the Government’s draft might also be improved.

VII Refining the Government’s Draft Amendment

The Government’s draft amendment, reproduced at the start of this article, is compelling in its simplicity. There is no tabling procedure and no duty to consult. It only requires Parliament to establish an Indigenous body. Parliament retains full authority over the design and operation of the institution which, as Twomey explains, ‘balances stability and exibility’52 — institutional design can evolve over time as needed. Twomey says the Government’s draft amendment is a ‘simple and elegant proposal, which demands little but offers much’.53

Others, like right-wing commentator Janet Albrechtsen, raise legal concerns, though many are far-fetched. For example, Albrechtsen argues the amendment

will force Parliament to consult with the Voice on ‘bureaucratic practices or procedures’ and ‘trivial matters’ unrelated to Indigenous affairs. She claims it will delay Parliament, hold government ‘to ransom’, and that ‘parliamentary democracy as we have known it will be dead’.54 These exaggerated assertions give an important glimpse into the forthcoming ‘no’ case. It is well known that referendums can prompt divisive debate, unconstrained by measured adherence to fact.55 As journalist Paul Kelly observed during the 1988 constitutional reform discussions, the ‘technique of scaremongering reaches its highest political art form in the eld of constitutional alteration’.56

Many of Albrechtsen’s assertions are implausible. For example, cl 2 of the Government’s draft amendment provides that the Voice ‘may make representations to parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander peoples’. It does not say ‘must’. Representations from the Voice to Parliament and government are not compulsory. Parliament and the government would have no duty to consult the Voice other than under rules which Parliament would articulate through legislation, as per sub-s (3). Subsection (3) emphasises parliamentary supremacy over institutional operation.

Albrechtsen’s main concern is the unpredictable High Court interpretation of the provisions, particularly cl 2.57 This concern is answered by the intended non-justiciability of the amendment,58 . A reference to ‘proposed laws’ in cl 2 would con rm and signpost non-justiciability. A revised sub-s (2) could therefore 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.’ This would emulate existing non-justiciable constitutional clauses which the High Court refrains from adjudicating because they concern ‘proposed laws’.

Of course, some commentators especially anxious about judicial activism may argue that the High Court cannot be trusted to respect longstanding orthodoxies regarding non-justiciability, because judges cannot be trusted with anything.59 Yet, the commentators most worried about judicial activism are worried now, even though the Constitution contains no Indigenous recognition provisions.60 They condemn judges for activism in interpreting the current Constitution and tell Indigenous people they can’t have constitutional recognition on this basis — despite the Referendum Council recommending a non-justiciable amendment precisely to address those concerns.

Its intended non-justiciability sets the Voice apart from all other options for Indigenous recognition, including a racial non-discrimination guarantee or a preamble as have been previously proposed. A new preamble would be justiciable, potentially shaping the interpretation of the whole Constitution. 61 Constitutional conservatives oppose a symbolic insertion for this reason.62 A racial nondiscrimination clause would also be justiciable and was maligned as ‘a “one clause bill of rights”’.63

By contrast, a constitutionally guaranteed Indigenous body is a practical machinery amendment, intended to be non-justiciable. The concept germinated through collaboration between Indigenous leaders and constitutional conservatives precisely to avoid judicial activism and uphold the Constitution. 64 Properly understood, it is a ‘radical centre’ solution, intended to achieve Indigenous aspirations for substantive and empowering constitutional recognition in a way that also addresses constitutionally conservative concerns to eliminate legal uncertainty and maintain parliamentary supremacy.65 As Shadow AttorneyGeneral and Shadow Minister for Indigenous Australians, Julian Leeser, wrote of the 2015 Twomey amendment, which used ‘proposed laws’ in 2016, this is the kind of machinery clause ‘Grif th, Barton and their colleagues might have drafted, had they turned their minds to it.’66

A non-justiciable, non-binding constitutional Voice is profoundly reasonable. The Government’s draft amendment can now be re ned to con rm and signpost non-justiciability.

VIII Why a ‘Duty to Consult’ Is Likely Unworkable

I turn now to explain why a ‘duty to consult’ incorporated into the Indigenous head of power is likely unworkable. While some argue this solution would be more modest, others argue it is more robust. I argue that a ‘duty to consult’ incorporated

into the head of power will always fall foul of the non-justiciability criteria. On the other hand, a non-justiciable, standalone duty to consult offers Indigenous people too little of institutional substance: there is no guarantee that an Indigenous body will exist, which defeats the purpose of the whole exercise. All formulations of a ‘duty to consult’ are ultimately unviable for these reasons.

In 2016, Professors Megan Davis and Rosalind Dixon proposed a justiciable constitutional duty to consult, critiquing the non-justiciability of Twomey’s 2015 drafting. Davis and Dixon noted that Parliament would be able to ignore the advice of the Indigenous body, suggesting this made the amendment too weak.67 To remedy this, they proposed a justiciable duty to consult, framed as follows:

In exercising its power to make laws under [s 51(xxvi)], and in all other cases in which laws have a signi cant or disproportionate impact on Indigenous peoples, the Commonwealth Parliament shall consult with Indigenous peoples in good faith, and through appropriate procedures.68

This formulation does not require the establishment of any Indigenous body or bodies. It would in the rst instance be up to Parliament to decide what ‘appropriate procedures’ and/or institutions are needed to enable consultation. However, the duty to consult is also a limitation on the conferral of power, so justiciability is inherent. Accordingly, ‘failure to follow appropriate procedures for consultation could itself also provide a potentially powerful basis for affected ATSI peoples to challenge the validity of relevant legislation’.69 This goes beyond the Referendum Council’s recommendations.

Along the lines of the Davis and Dixon proposal (but with an additional amendment requiring Parliament to establish an Indigenous body), Brennan in January 2022 proposed a power to make laws with respect to ‘Aborigines and Torres Strait Islanders for whom it is deemed necessary to make special laws after consultation with them’.70 Brennan argued this showed it is possible to ‘design the right constitutional hook for the voice without undermining parliamentary sovereignty’.71 While it is possible to draft an amendment that upholds parliamentary supremacy, Brennan’s duty to consult is also a justiciable limitation on the head of power which falls outside the Referendum Council’s directive for a non-justiciable amendment.

In August 2022, barrister Louise Clegg criticised the Government’s draft amendment as ill- tting to the Constitution (though describing it as non-justiciable) and proposed a variation of a similarly justiciable duty to consult, also requiring the establishment of a body. Conversely, Clegg argued her proposal was more modest and conservative than the Government’s approach. It reads:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to …

(xxvi) Aboriginal and Torres Strait Islander people for whom it is deemed necessary to make special laws after the Parliament has received representations about the proposed laws from a body established by the Parliament to represent Aboriginal and Torres Strait Islander people. 72

Like the above approaches, and despite the use of ‘proposed laws’, this amendment appears justiciable. If Indigenous people refuse to be consulted, the power cannot be exercised. Because the phrase is incorporated into a substantive limitation on the conferral of power, including ‘proposed laws’ in this instance appears insuf cient to ensure non-justiciability. Laws enacted under this power could be invalidated for any failure to consult, which fails the Referendum Council’s parameters.

In 2020, Twomey proposed a non-justiciable constitutional duty to consult. Twomey’s version is standalone, unattached to any constitutional head of power, and is, therefore, non-justiciable. The provision reads:

The Commonwealth shall make provision for Aboriginal and Torres Strait Islander peoples to be heard by the Commonwealth regarding proposed laws and other matters with respect to Aboriginal and Torres Strait Islander affairs, and the Parliament may make laws to give effect to this provision.73

This amendment is modelled on ss 119 and 120 of the Constitution and would oblige the Commonwealth of Australia — the entire nation — to act to ensure Indigenous peoples are heard in their affairs.74 However, Twomey clari es that the provision ‘leaves open the means of giving effect to that obligation — it could be by government action, legislation, a parliamentary committee, or a combination of all of them’.75 Parliaments and governments would have full discretion as to how the duty is executed. Unlike the above proposals which provide substantive limitations on the conferral of power to Parliament, courts would not be involved, and nonjusticiability is bolstered through the use of ‘proposed laws’.76

The biggest downside is that the amendment offers no guarantee that an Indigenous body will exist. It, therefore, also falls outside the Referendum Council’s recommendation that the Constitution should guarantee the existence of an Indigenous body and would likely be rejected by Indigenous people for guaranteeing too little.

When one understands the shortfalls of these ‘duty to consult’ formulations, the profound modesty of the Government’s draft amendment becomes more apparent. It is a sensible starting point for forging agreement on the words to put to the Australian people.

IX A Bipartisan Process to Refine and Agree on the Amendment

The Referendum Council’s report noted that Parliament would nalise the constitutional amendment, emphasising the importance of Indigenous involvement.77 Yet, s 128 of the Constitution requires a ‘double majority’ referendum and establishes the Parliament as the initiator of constitutional change. Parliament, therefore, has power to unilaterally decide the nal constitutional amendment guaranteeing a First Nations Voice, which must then be approved by the people. Morally and politically, however, Indigenous views will be decisive. The amendment should be negotiated and agreed to by Indigenous people in partnership with parliamentarians. Australians are unlikely to vote ‘yes’ to an amendment that Indigenous Australians do not champion. So how might agreement between Indigenous people and Australian legislators be facilitated?

Adapting a process proposed by Cape York Institute in 2021 to nalise the constitutional amendment,78 here I suggest a process of negotiations between Indigenous people and political representatives to nalise and agree on the words of the amendment. Given that the Coalition leader Peter Dutton has so far left open the possibility that his party may support the proposed referendum,79 a process to encourage bipartisanship is desirable.

The Indigenous negotiating team could be the Indigenous ‘working group’, or a subgroup thereof, that has been appointed by the Government to progress work towards a referendum,80 which includes Indigenous leaders long involved in the recognition debate. Additional or alternative Indigenous representatives could also be appointed as negotiators by those Indigenous leaders on the basis of application and merit if desired. The political representatives in these negotiations could include the Prime Minister, the Minister for Indigenous Australians and the Attorney-General, with equal participation by the Opposition as well as representation of other parties, to facilitate multiparty support of the negotiated amendment.

A retired judge could be engaged to oversee and facilitate the negotiations. Supported by expert advisers on all sides, the negotiations could use the Government’s draft amendment as a starting point, enabling the Government, the Opposition and the Indigenous negotiating team to discuss, re ne and agree on the amendment to be put to referendum.

This is just one idea of how a process to facilitate Indigenous and bipartisan buy-in on the amendment could work, but an ef cient bipartisan process to facilitate agreement is necessary. This should be developed and undertaken with urgency to facilitate consensus on and co-ownership of the nal amendment.

X Conclusion

I have made three suggestions to enhance the clarity of debate about the upcoming Voice referendum. First, the words ‘proposed laws’ should be included in the amendment to con rm and signpost non-justiciability. This will fortify the amendment against criticism and help quell concerns about uncertain High Court

adjudication. Second, we should be clear that incorporating a duty to consult with the head of power will fall foul of the non-justiciability criteria. Third, the Government should lead an ef cient, collaborative and bipartisan negotiation process so Indigenous people and political representatives can nalise and agree on the amendment to put to the people.

1 Referendum Council, ‘Uluru Statement from the Heart’ (Statement, First Nations

National Constitutional Convention, 26 May 2017). 2 Michelle Grattan, ‘Albanese Releases Draft Wording for Indigenous “Voice to

Parliament” Referendum’, The Conversation (online, 29 July 2022) <https:// theconversation.com/albanese-releases-draft-wording-for-indigenous-voice-toparliament-referendum-187933>. 3 Referendum Council, Final Report of the Referendum Council (Report, 30 June 2017) 2 <https://www.referendumcouncil.org.au/sites/default/ les/report_ attachments/Referendum_Council_Final_Report.pdf>. Records from the First

Nations regional dialogues also emphasise that what is envisaged is a body that would provide Indigenous input into relevant laws and policies: see Pat

Anderson et al, Submission No 479 to Joint Select Committee on Constitutional

Recognition relating to Aboriginal and Torres Strait Islander Peoples, Parliament of Australia (3 November 2018) 7–10 n 9–18. 4 Referendum Council, Final Report of the Referendum Council (n 3) 36. 5 Ibid 37. 6 Ibid 36. 7 Ibid. 8 Ibid 38. 9 For discussion questioning the utility of this term, see Ryan Goss, ‘What Do

Australians Talk about When They Talk about “Parliamentary Sovereignty”?’ [2022] 1 Public Law 55. 10 These objections are explained in Shireen Morris, ‘Undemocratic, Uncertain and Politically Unviable? An Analysis of and Response to Objections to a

Proposed Racial Non-Discrimination Clause as Part of Constitutional Reforms for Indigenous Recognition’ (2014) 40(2) Monash University Law Review 488 (‘Undemocratic, Uncertain and Politically Unviable?’). 11 Referendum Council, Final Report of the Referendum Council (n 3) 38. 12 For more on the logic and development of this alternative, see Shireen Morris, A

First Nations Voice in the Australian Constitution (Hart Publishing, 2020) chs 3, 6 (‘A First Nations Voice’); Shireen Morris, Radical Heart: Three Stories Make Us

One (Melbourne University Press, 2018) chs 4–7 (‘Radical Heart’). 13 See further Morris, ‘Undemocratic, Uncertain and Politically Unviable?’ (n 10). 14 As noted above, the records from the First Nations regional dialogue envisage a body that would provide Indigenous input into relevant laws and policies: see

Pat Anderson et al (n 3) 7–10 n 9–18. 15 Similar guiding principles have been repeatedly articulated in the submissions of

Cape York Institute, a leading proponent of the idea of an Indigenous advisory body in the Constitution since 2014: see Cape York Institute, Submission

No 38 to Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Parliament of Australia (October 2014) 15–16; Cape York Institute, Supplementary Submission No 38 to Joint Select

Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander

Peoples, Parliament of Australia (January 2015) 23–5. 16 Henry Burmester, ‘Locus Standi in Constitutional Litigation’ in HP Lee and

George Winterton (eds), Australian Constitutional Perspectives (Law Book, 1992) 148, 178. 17 For example, the Constitution Act 1975 (Vic) recognises Indigenous peoples in s 1A. The Constitution Act 1902 (NSW) recognises Indigenous peoples in s 2.

The Constitution of Queensland 2001 (Qld) recognises Indigenous peoples in its preamble and provides a ‘no legal effect clause’ in relation to the preamble in s 3A. The Constitution Act 1934 (SA) recognises Indigenous peoples in s 2.

Section 2(3) provides a ‘no legal effect’ clause. 18 See Expert Panel on Constitutional Recognition of Indigenous Australians,

Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution:

Report of the Expert Panel (Report, January 2012) 113–15; Megan Davis and

Zrinka Lemezina, ‘Indigenous Australians and the Preamble: Towards a More

Inclusive Constitution or Entrenching Marginalisation?’ (2010) 33(2) University of

New South Wales Law Journal 239, 261. 19 Leslie Zines, ‘Preamble to a Republican Constitution’ (1999) 10(1) Public Law

Review 67, 68. See also Jeremy Webber, ‘Constitutional Poetry: The Tension between Symbolic and Functional Aims in Constitutional Reform’ (1999) 21(2)

Sydney Law Review 260, 269–70. 20 See, eg, Australian Constitution ss 53–4, 56. 21 Official Record of the Debates of the Australasian Federal Convention, Adelaide, 13 April 1897, 473 (Edmund Barton). 22 The non-justiciable character of s 53 was discussed in Osborne v Commonwealth (1911) 12 CLR 321, 336 (Grif ths CJ), 352 (Barton J), 355 (O’Connor J) ;

Western Australia v Commonwealth (1995) 183 CLR 373, 482 (Mason CJ,

Brennan, Deane, Toohey, Gaudron and McHugh JJ). See also Gabrielle

Appleby and Adam Webster, ‘Parliament’s Role in Constitutional Interpretation’ (2013) 37(2) Melbourne University Law Review 255, 272; James A Thomson,

‘Non-Justiciability and the Australian Constitution’ in Michael Coper and George

Williams (eds), Power, Parliament and the People (Federation Press, 1997) 56, 57. 23 Osborne v Commonwealth (n 22) 336. 24 Western Australia v Commonwealth (n 22) 482 (Mason CJ, Brennan, Deane,

Toohey, Gaudron and McHugh JJ). The High Court agreed with the Solicitor-

General for the Commonwealth, at 404–5, that (citations omitted): Failure to comply with ss 53 or 54 of the Constitution is not justiciable and does not give rise to invalidity of the resulting Act when it has been passed by the two Houses and received the royal assent. The Convention Debates con rm that the language of ss 53 and 54 was deliberately chosen in contrast to that of s 55 to ensure that the matters of procedure with which the former deals were to be settled between the two Houses of the Parliament themselves and were not to come before the courts.

See also Official Record of the Debates of the Australasian Federal Convention,

Adelaide, 13 April 1897, 472–3 (Isaac Isaacs); John Quick and Robert Randolph

Garran, The Annotated Constitution of the Australian Commonwealth (Angus &

Robertson, 1901) 664–5. 25 See Glenn Worthington, ‘How Far Do Sections 53 and 56 of the Australian

Constitution Secure a Financial Initiative of the Executive?’ (Parliamentary

Studies Paper 12, Australian National University) 4. 26 Victoria v Commonwealth (1975) 134 CLR 83, 138. 27 See Shireen Morris, ‘A Constitutional Voice to Parliament: Ensuring Parliament Is in Charge, Not the Courts’, The Conversation (online, 27 October 2022) <https:// theconversation.com/a-constitutional-voice-to-parliament-ensuring-parliamentis-in-charge-not-the-courts-193017>. 28 Anne Twomey, ‘Putting Words to the Tune of Indigenous Constitutional

Recognition’, The Conversation (online, 20 May 2015) <https://theconversation. com/putting-words-to-the-tune-of-indigenous-constitutional-recognition-42038>. 29 Shireen Morris, ‘The Argument for a Constitutional Procedure for Parliament to Consult with Indigenous Peoples When Making Laws for Indigenous Affairs’ (2015) 26(3) Public Law Review 166, 179–82; Shireen Morris, ‘“The Torment of

Our Powerlessness”: Addressing Indigenous Constitutional Vulnerability through the Uluru Statement’s Call for a First Nations Voice in Their Affairs’ (2018) 41(3)

University of New South Wales Law Journal 629, 653–65; Morris, A First Nations

Voice (n 12) 257–62, 268–73. 30 Murray Gleeson, ‘Courts and the Rule of Law’ (Rule of Law Series, Melbourne

University, 7 November 2001). 31 This is pointed out in Megan Davis and Rosalind Dixon, ‘Constitutional

Recognition through a (Justiciable) Duty to Consult? Towards Entrenched and

Judicially Enforceable Norms of Indigenous Consultation’ (2016) 27(4) Public

Law Review 255, 259. 32 Fergal Davis, ‘The Problem of Authority and the Proposal for an Indigenous

Advisory Body’ (2015) 8(19) Indigenous Law Bulletin 23. 33 Twomey, ‘Putting Words to the Tune of Indigenous Constitutional Recognition’ (n 28). This drafting was developed through collaboration between Cape York

Institute representatives, Noel Pearson and the author, and constitutional conservatives, Julian Leeser, Damien Freeman, Professor Greg Craven and

Professor Anne Twomey. See further Morris, Radical Heart (n 12) chs 6–7. 34 Anderson et al (n 3) 6. 35 Ibid 8. 36 Ibid. In contrast to Twomey’s 2015 proposal, which constitutionally requires tabling of advice in Parliament and consideration of the advice by parliamentarians:

Twomey, ‘Putting Words to the Tune of Indigenous Constitutional Recognition’ (n 28). 37 Anderson et al (n 3) 11. 38 Gabrielle Appleby, ‘The Uluru Statement Is Not a Vague Idea of “Being Heard” but Deliberate Structural Reform’, The Conversation (online, 24 July 2020)

<https://theconversation.com/the-uluru-statement-is-not-a-vague-ideaof-being-heard-but-deliberate-structural-reform-142820> (‘The Uluru

Statement’). 39 Speci cally, formulations presented by Twomey in 2020: Anne Twomey,

‘There Are Many Ways to Achieve Indigenous Recognition in the

Constitution: We Must Find One We Can Agree On’, The Conversation (online, 8 July 2020) <https://theconversation.com/there-are-manyways-to-achieve-indigenous-recognition-in-the-constitution-we-must nd-one-we-can-agree-on-142163> (‘There Are Many Ways’). 40 Appleby, ‘The Uluru Statement’ (n 38). 41 Particularly a non-justiciable amendment. Appleby’s article links to the 2018 joint submission by Anderson et al (n 3), which provides very similar drafting and argues it is non-justiciable. 42 Gabrielle Appleby, ‘An Indigenous Advisory Body: Some Questions of

Design’ (2015) 8(19) Indigenous Law Bulletin 3, 3. 43 See also Shireen Morris, ‘Parliamentary Scrutiny and Insights for a First

Nations Voice to Parliament’ in Julie Debeljak and Laura Grenfell (eds),

Law Making and Human Rights: Executive and Parliamentary Scrutiny across Australian Jurisdictions (Lawbook, 2020) 703; Gabrielle Appleby and Eddie Synot, ‘A First Nations Voice: Institutionalising Political

Listening’ (2020) 48(4) Federal Law Review 529. 44 Michael Coper made this point in relation to s 101 of the Constitution which requires the existence of an Inter-State Commission, which has not operated for most of Australia’s history: see Michael Coper, ‘The

Second Coming of the Fourth Arm: The Role and Functions of the Inter-

State Commission’ (1989) 63(11) Australian Law Journal 731, 733, 738. 45 I have explained why a non-justiciable amendment requiring the establishment of a First Nations Voice can be distinguished from, and is likely to carry much more authority than, s 101 of the Constitution, which requires the establishment of an Inter-State Commission: Morris, A First

Nations Voice (n 12) 255–62. 46 Gabrielle Appleby, Sean Brennan and Megan Davis, ‘Constitutional

Enshrinement of a First Nations Voice: Issues Paper for Public Discussion’ (Issues Paper 1, Indigenous Law Centre, September 2022) 17. 47 See further Shireen Morris, ‘An Australian Declaration of Recognition:

The Case for Semi-Entrenched Symbolism’ (2020) 44(1) Melbourne

University Law Review 267. 48 National Indigenous Australians Agency, Indigenous Voice Co-Design

Process: Final Report to the Australian Government (Report, July 2021) 11–12, 69, 175–6. 49 Morris, A First Nations Voice (n 12) 275. 50 Frank Brennan, ‘Why Their Voice Must Be Heard’, The

Australian (online, 20 August 2022) <https://www.theaustralian. com.au/inquirer/why-their-voice-must-be-heard/news-story/ bff90c222c1f769bb5035220d977b8ad>. 51 Prior to the 1967 referendum, the power was not used. For example, the power is said to support the World Heritage Properties Conservation Act 1983 (Cth), the Aboriginal and Torres Strait Islander Heritage Protection

Act 1984 (Cth), the Native Title Act 1993 (Cth) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). 52 Anne Twomey, ‘Creating a Constitutional Voice: The Words That Could

Change Australia’, The Conversation (online, 30 July 2022) <https:// theconversation.com/creating-a-constitutional-voice-the-words-thatcould-change-australia-187972>. 53 Ibid. 54 Janet Albrechtsen, ‘The Albanese Amendment Ensures a Voice Will

Be a Disaster’, The Australian (online, 13 August 2022) <https://www. theaustralian.com.au/inquirer/the-albanese-amendment-ensures-avoice-will-be-a-disaster/news-story/4054d17ea5ca1fb868c777a44de0 ccb6>. 55 See the discussion of referendum tactics and exaggerated claims in

Scott Bennett, ‘The Politics of Constitutional Amendment’ (Research

Paper No 11, Parliament of Australia, 23 June 2003). 56 Paul Kelly, ‘The Referendums: Myths and Bogeys’, The Australian (Sydney, 2 September 1988), quoted in George Williams and David Hume, People Power: The History and Future of the Referendum in

Australia (UNSW Press, 2010) 82. See also Enid Campbell, ‘Southey

Memorial Lecture 1988: Changing the Constitution’ (1989) 17(1)

Melbourne University Law Review 1, 12 . 57 See also Chris Merritt, ‘Judging the High Court’s Justices’, The

Australian (online, 19 February 2020) <https://www.theaustralian.com. au/inquirer/judging-the-highcourts-justices/news-story/6c819b096c601 80d761d0ca9ab38b2eb>. 58 Referendum Council, Final Report of the Referendum Council (n 3) 38. 59 James Allan, ‘Constitutional Fiddling Brings Inherent Danger’, The

Australian (online, 9 December 2011) <https://www.theaustralian.com. au/national-affairs/opinion/constitutional- ddling-brings-inherentdanger/news-story/1852ab65ba1b70d2f14f036d530b6ee0>. 60 Shireen Morris, ‘Love in the High Court: Implications for Indigenous

Constitutional Recognition’ (2021) 49(3) Federal Law Review 410, 428–32. 61 Stephen Gageler and Mark Leeming, ‘An Australian Republic: Is a

Referendum Enough?’ (1996) 7(3) Public Law Review 143, 145–7;

Jeffrey Goldsworthy, ‘The Preamble, Judicial Independence and Judicial

Integrity’ (2000) 11(2) Constitutional Forum 60, 62; Dan Himmelfarb,

‘The Preamble in Constitutional Interpretation’ (1991) 2(1) Seton

Hall Constitutional Law Journal 127, 203; George Winterton, ‘A New

Constitutional Preamble’ (1997) 8(3) Public Law Review 186, 187–8. 62 See Shireen Morris and Noel Pearson, ‘Indigenous Constitutional

Recognition: Paths to Failure and Possible Paths to Success’ (2017) 91(5) Australian Law Journal 350. 63 These objections are explained in Morris, ‘Undemocratic, Uncertain and

Politically Unviable?’ (n 10) 495. 64 See also Morris, Radical Heart (n 12) chs 5–7. 65 See Shireen Morris, ‘A New Radical Centre’ (John Button Oration,

Wheeler Centre, 10 September 2022). 66 Julian Leeser, ‘Uphold and Recognise’ in Damien Freeman and

Shireen Morris (eds), The Forgotten People: Liberal and Conservative

Approaches to Recognising Indigenous Peoples (Melbourne University

Press, 2016) 78, 87. 67 Davis and Dixon (n 31) 258. 68 Ibid 262. Note that, in the Davis and Dixon article, s 51(xxxvi) is cited, but I presume this is an error and that it should read s 51(xxvi). 69 Davis and Dixon (n 31) 259. 70 Frank Brennan, ‘Most Australians Are Tolerant and Inclusive, So Stop the Hectoring on Our National Day’, The Australian (online, 27 January 2022) <https://www.theaustralian.com.au/commentary/letters/mostaustralians-are-tolerant-and-inclusive-so-stop-the-hectoring-onour-national-day/news-story/5df6d8d9cce30994761c822899f19281>. 71 Ibid. 72 Louise Clegg, ‘The Voice to Parliament: Past and Present’ (Speech,

Sydney Institute, 18 August 2022) <https://thesydneyinstitute.com.au/ blog/the-voice-to-parliament-past-and-present-greg-craven-louiseclegg/> (emphasis in original). 73 Twomey, ‘There Are Many Ways’ (n 39). 74 Ibid. 75 Ibid. 76 Ibid. 77 Referendum Council, Final Report of the Referendum Council (n 3) 36. 78 Cape York Institute, Submission No 2720 to National Indigenous

Australians Agency, Indigenous Voice Co-Design Process (30 April 2021). This submission was written by the author. 79 Tom McIlroy, ‘Dutton Admits “Mistake”, Will Consider Indigenous Voice

Plan’, The Australian Financial Review (online, 30 May 2022) <https:// www.afr.com/politics/federal/dutton-admits-mistake-will-considerindigenous-voice-plan-20220530-p5apnl>. 80 Lorena Allam, ‘Government Appoints First Nations Leaders to Guide

Referendum on Indigenous Voice’, The Guardian (online, 8 September 2022) <https://www.theguardian.com/australia-news/2022/sep/08/ government-appoints- rst-nations-leaders-to-guide-questions-aboutreferendum-on-indigenous-voice>.