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University of New South Wales Law Journal Student Series |
FROM LITIGANTS TO PARTICIPANTS: UNDERSTANDING THE SHIFT FROM A LEGAL TO A POLITICAL CONSTITUTIONAL MODEL OF CONSTITUTIONAL RECOGNITION OF ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES[*]
LAUREN LAI[**]
In 2012, the Expert Panel on Constitutional Recognition of Indigenous Australians envisaged judicially adjudicated constitutional rights clauses, giving the High Court a substantive role. In 2017, the Uluru Statement from the Heart and the Referendum Council advocated for a First Nations Voice to Parliament. This constitutionally entrenched First Peoples advisory body, which the 2018 Joint Select Committee recognised as the leading constitutional reform model, entails minimal High Court involvement. This paper examines why constitutional recognition proposals shifted from a court-centric to a parliamentary-centric model. Part II distinguishes between legal and political constitutionalism; Part III sets out the shift in Aboriginal advocacy; and Part IV canvasses possible explanations for the shift: the High Court’s limited role and effectiveness in rights protection, pragmatic accommodations, and a political constitutional model’s effectiveness and agency. In Part V, I suggest that there are persuasive pragmatic and principled reasons accounting for the transition, as well as examining whether the shift is favourable to best allow for functional change.
The High Court of Australia has provided a ‘time-honoured form of “politics by other means”’ for Aboriginal and Torres Strait Islander peoples to seek redress in a settler-dominated society’.[1] It is therefore conceivable that the 2012 Expert Panel on Constitutional Recognition of Indigenous Australians envisaged judicially adjudicated constitutional rights clauses. Yet, in November 2018, the Joint Select Committee confirmed that a First Nations Voice to Parliament was the leading constitutional reform model, entailing minimal High Court involvement. This paper examines why proposals shifted from including a substantive to a limited High Court role. Part II distinguishes between legal and political constitutionalism; Part III sets out the shift in Aboriginal advocacy; and Part IV canvasses possible explanations for the shift, including the High Court’s limited role and effectiveness in rights protection, pragmatic accommodations, and a political constitutional model’s effectiveness and agency. In Part V, I suggest that while a conclusive causal link cannot be drawn, there are persuasive pragmatic and principled reasons accounting for the transition. The form that constitutional recognition takes is critical because as Gordon notes, ‘the legal forms we use set limits on what we can imagine as practical options’.[2] The constitutional reform vehicle will determine the degree of Aboriginal and Torres Strait Islander peoples’ rights protection and the limits of their empowerment. I thus conclude by examining whether the shift is favourable to best allow for functional change.
The extent of the High Court’s role reflects the priority given to legal or political constitutionalism. Tomkins differentiates that while political constitutionalists privilege Parliament and legislative processes, legal constitutionalists view the courts and adjudicative litigation as the best means of ensuring governmental accountability.[3] Waldron, a political constitutionalist, argues that in a democratic society in which citizens equally determine who forms the legislature, rights disagreements should be decided by elected representatives.[4] He denounces judicial review as a mode of final decision-making, as it ‘disenfranchises ordinary citizens’ by shifting the power to ‘unelected and unaccountable judges’.[5] This political constitutionalist view supports a limited High Court role in constitutional recognition, favouring the shift to a parliamentary-centric Voice model.
Given that Aboriginal and Torres Strait Islander peoples comprise three percent of the population, a germane critique of absolute legislative authority is that minority rights may be violated as a result of the ‘tyranny of the majority’.[6] Yet, Waldron argues that tyranny of the majority only occurs where people care little for minority rights.[7] However, even though a general commitment to rights exists within Australian society, history illustrates that Aboriginal and Torres Strait Islander peoples’ rights have been subordinated. While Australia’s First Peoples have ‘political equality’ at the ballot box,[8] they are a ‘discrete and insular minority’.[9] Ely coined this phrase to describe situations where representation processes do not adequately protect minority interests.[10] Precedent reveals an underlying ‘prejudice’ arising from a distorted political process that renders Aboriginal and Torres Strait Islander peoples politically powerless.[11] This prejudice stems from the Constitution’s drafting against a backdrop of racism, resulting in its text and operation ‘run[ning] counter to the idea of Aboriginal Australians as equal members of the community’.[12] As Davis encapsulates, ‘Indigenous issues will always be exposed to the zero sum game of utilitarianism’,[13] due to the ‘harsh majoritarian tendencies of minimalist ballot box participation’.[14] Ely argues that in such cases, judicial intervention is necessary.[15] Accordingly, this paper examines whether proposals encompassing a substantive High Court role are beneficial in recognising Aboriginal and Torres Strait Islander peoples’ rights, and, if so, why current leading models incorporate minimal judicial scrutiny.
Constitutional recognition of Aboriginal and Torres Strait Islander peoples has been expressed in many forms,[16] including recognition of First Peoples’ cultures and languages,[17] preambular recognition,[18] agreement-making,[19] the negotiation of a treaty,[20] and reserved Parliament seats.[21] This paper focuses on two main models, the first originating in the Gillard Government’s established Expert Panel Report in 2012. The Panel recommended introducing ‘section 51A’,[22] empowering the Commonwealth to make laws with respect to Aboriginal and Torres Strait Islander peoples, and ‘section 116A’, prohibiting racial discrimination.[23] Section 51A gives the High Court a limited substantive role and section 116A confers a broad substantive role in reviewing laws affecting Aboriginal and Torres Strait Islander peoples. Understanding why the Panel landed on these reforms sheds light on why proposals moved away from a substantive High Court role. Davis explains that the Panel’s consultations emphasised a desire ‘to ameliorate the unintended (or intended) consequences of the drafting of the 1967 amendment’.[24] In Kartinyeri, the High Court majority left open the possibility that the Commonwealth could pass racially discriminatory laws under section 51(xxvi).[25] This case involved the suspension of the Racial Discrimination Act 1975, as did the Native Title Amendment Act 1998 and the Northern Territory Emergency Response Act 2007. Moreover, the races power is correlated to Aboriginal and Torres Strait Islander peoples’ loss of liberty,[26] and to Australia’s historical racial divisions.[27] The Panel sought to address the problems created by section 51(xxvi) through constitutional guarantees, in light of First Peoples’ minimal trust in Parliament and democratic processes.[28] Thus, the High Court’s empowerment was an inevitable corollary of the desire to constitutionally restrain the Commonwealth from enacting discriminatory laws. The Panel reported a large majority of support from Aboriginal and Torres Strait Islander peoples, as well as from the wider public, with 73% of survey respondents in favour of removing provisions referring to ‘race’,[29] and 80% endorsing a guarantee preventing racially discriminatory laws.[30] Following the Panel’s Report, proposed variations of the two clauses remained within a court-centric paradigm, including the 2015 Joint Select Committee’s recommendations.[31] However, a lack of political traction, particularly regarding the racial non-discrimination guarantee, precipitated the current leading proposal, a First Nations Voice to Parliament.
In 2017, the Uluru Statement from the Heart and the Referendum Council advocated for a First Nations Voice, which involves establishing a constitutionally entrenched Aboriginal and Torres Strait Islander body ‘to advise Parliament on laws and policies with respect to Indigenous affairs’.[32] While several proposals suggest to legislate the Voice first,[33] the dominant view is to constitutionalise the Voice first,[34] and to then provide the body’s details and design through statute.[35] Critically, the body’s ‘non-justiciability’[36] limits the High Court to a procedural role of determining if the Voice exists and, potentially, whether Parliament has followed any required procedures.[37] There are concerns that non-justiciability will render the Voice meaningless if Parliament ignores the body.[38] Williams questions whether the ‘advice of Aboriginal people will be sufficient to overcome the demonstrated willingness of the federal Parliament to enact laws to their detriment’.[39] Davis and Dixon thus advocate for ‘an entrenched and justiciable consultation model’ that gives the ‘High Court an affirmative role in guaranteeing that recognition would in fact lead to meaningful legislative and policy change’.[40] However, the leading proposals maintain the body’s purely political function and non-justiciability. This turn away from court-centric rights protection to a political constitutional non-justiciable Voice, seems prima facie illogical given the popular support for constitutional guarantees and a history of majoritarian governments marginalising First Peoples’ rights. Accordingly, Part IV discusses the possible reasons propelling this shift.
This paper proposes four key possible explanations driving the shift, namely, the High Court’s limited role in rights protection, the Court’s limited effectiveness, pragmatism, and a parliamentary-centric model’s advantages, including agency.
The High Court’s limited role in rights protection has its genesis in the framers’ desire to maintain race-based distinctions,[41] and the prevailing sentiment that a bill of rights was not required ‘to protect the rights and freedoms of citizens’.[42] These decisions, reflected in the Constitutional text, strongly influenced the legal and political traditions conditioning the High Court’s restricted rights enforcement.
Australia’s narrow constitutional rights model is evident in the Constitution’s text, structure and language, which Dixon and Appleby explain, ‘provide limited support for the Court assuming an active role in protecting individual rights’.[43] Further, Dixon notes that the High Court’s interpretative strategy of ‘contraction’ has resulted in an ‘extremely narrow interpretation to existing rights’.[44] This expression of legal conservatism, accentuated in the landmark Engineers’ Case,[45] which upheld the centrality of ‘text and structure’ in constitutional interpretation,[46] was reaffirmed in response to several cases during the Mason Court era.[47] Roux describes the ‘controversial political consequences’ of decisions in which the Court applied a ‘more substantive style of legal reasoning’, leading to the perception that the Court was deviating from its appropriate role.[48] The political backlash and High Court’s ‘legitimacy crisis’ cemented the notion within the legal culture that even where formal legal materials ‘run out’,[49] judges are not to make ‘open-ended proportionality judgments implicit in the interpretation’ of rights clauses.[50] While the legal-political adherence to parliamentary rights protection is apparent in the Court’s return to legalist methods, the legal community’s conservative approach has simultaneously informed the political aversion to judicial rights protection.
The drafters’ decision to omit express rights provisions was justified by the supposed intention that the Constitution was to ‘politically and procedurally protect citizens’ rights’.[51] This notion, grounded in the British tradition of parliamentary sovereignty, upholds Parliament’s power to enact laws without external interference.[52] Dixon and Appleby explain that parliamentary supremacy’s primacy generated ‘the longstanding resistance among legal and political elites’ to rights-based judicial review.[53] Commentators pinpoint the curbing of parliamentary sovereignty as accounting for the opposition to the Expert Panel’s rights clauses. Williams attributes the failure to agree on the provisions’ wording to concerns that ‘Parliament’s power to legislate would be fettered by ‘activist’ judges willing to give a broad reading to the new human rights guarantee’.[54] Further, Dixon and Appleby suggest that the turn towards legislative rights protection was driven by ‘political suspicion of judicial review of parliamentary judgment in the rights arena’.[55] This political culture is consistent with Waldron’s championing of democratic legislative processes to protect rights. Thus, the parliamentary-centric First Nations Voice is said to be ‘highly respectful of parliamentary supremacy’,[56] appeasing ‘the fear of judicial activism’.[57] These concerns were influential in draft proposals ensuring that the body’s advice would be non-justiciable.[58]
The interrelated effect of Australia’s legal and political commitment to non-justiciability of rights-based questions could have foreseeably engendered resistance to constitutional guarantees. These legal-political traditions have also given rise to concerns that the Court would fail to effectively enforce rights provisions.
The High Court’s narrow role in rights protection, in conjunction with the premium placed on parliamentary sovereignty, produces conditions that suggest that the Court may be constrained even if constitutional guarantees are implemented. This section identifies that poor precedent, legal uncertainty and a limited scope to protect rights point to why rights-based provisions may be inadequate in protecting Aboriginal and Torres Strait Islander peoples’ interests.
Before examining the factors evincing the High Court’s limited effectiveness, it is beneficial to first note the potential of a legal constitutional model to powerfully protect Aboriginal and Torres Strait Islander peoples’ rights. Part II identified Ely’s recourse to the judicial arm to remedy the inability of majoritarian political processes to protect discrete and insular minority interests. For instance, Rosenberg explains that proponents of the ‘dynamic court’ view advance that ‘courts may bring issues to light and keep them in the public eye when other political institutions wish to bury them’.[59] Moreover, Dixon argues that courts can counter legislative ‘blind spots’ by assessing legislation after ‘potentially unforeseen [rights-based] implications have manifested’.[60] Taking the Northern Territory Intervention as an example, Davis and Williams propose that not only would section 116A have enabled a High Court challenge, but the very prospect of a challenge ‘would have forced parliamentarians to consider the question more carefully’.[61] Although, the authors also acknowledge that the Court may have deferred to Parliament on the issue of sexual abuse.[62] Accordingly, while the High Court has potential to assume an active role in recognising Aboriginal and Torres Strait Islander peoples’ interests, the following limitations suggest this potential may not transpire in practice.
Existing precedent regarding the protection of rights generally and Aboriginal and Torres Strait Islander peoples’ interests in particular, provides little optimism that the High Court would effectively apply constitutional rights guarantees. Roux describes the ‘inertial effects’ of a ‘politico-legal equilibrium’, comprising of a ‘commitment to law’s separation from politics’ and a ‘respect for judicial independence’.[63] The Court’s devotion to legalistic interpretative methods and tendency to eschew an ‘interest-balancing approach’[64], provide a ‘legitimating device’[65] for the Court to avoid the perception that it has exceeded its perceived institutional boundaries. As Dixon affirms, new constitutional rights ‘could be interpreted in such a narrow and formalistic way as to largely deprive them of meaningful effect’, leaving Aboriginal advocates with a sense of betrayal.[66] Similarly, Rosenberg argues that even if judges are ‘sympathetic to social reform plaintiffs’, the legal culture may discourage them from making decisions that are likely to be criticised.[67] Therefore, the cementing of judicial deference in policy matters may constrain the Court from optimally responding to constitutional rights provisions. Additionally, past cases document a lack of judicial recognition of Aboriginal and Torres Strait Islander peoples’ rights.[68] While constitutional guarantees may give the Court greater footing to protect First Peoples’ rights than in previous cases, the pattern of poor outcomes for Aboriginal and Torres Strait Islander peoples may have fostered the belief that recourse to the High Court is not an effective warranty. The inadequate history of Aboriginal and Torres Strait Islander peoples’ rights protection also triggers concerns that the Court’s reading of rights clauses may lead to unintended consequences.
The current races power’s inadvertent implications, as Part III highlighted, has led to unease regarding the legal uncertainty of how the High Court would interpret constitutional rights provisions. Dixon and Williams emphasise that an amended races power needs to ‘continue the scope...with respect to Aboriginal peoples’,[69] ensure flexibility to support current and future laws,[70] and prevent racially discriminatory legislation.[71] In identifying three broad replacement provisions, the authors note the concerns associated with each possibility.[72] A ‘subject matter power’ raises questions as to whether all ‘topics of potential future significance to Aboriginal people’ would be covered, relying on the Court’s determination.[73] A ‘purposive power’ casts doubt on whether recognising First Peoples’ cultures and languages would be included,[74] and, depending on the power’s framing, it is unclear how the Court might interpret ‘recognition’.[75] Finally, a ‘person’s power’ does not cover State or Territory laws and limits protection from racial discrimination to Aboriginal and Torres Strait Islander peoples only.[76] The determinative effect of a provision’s wording and the difficulties of amending constitutional guarantees, places significant weight on the High Court’s interpretation. There are thus concerns that the tangible protection of Aboriginal and Torres Strait Islander peoples’ interests could hinge on what Waldron describes as judicial review’s preoccupation with ‘side-issues about precedent, texts, and interpretation’.[77]
Additionally, the Court’s scope to recognise Aboriginal and Torres Strait Islander peoples’ rights would be unavoidably curtailed. National Congress describes the limited ambit of amending the races power, as many laws that disproportionately affect Aboriginal and Torres Strait Islander peoples ‘are not explicitly related to race’.[78] Moreover, Reid argues that section 116A ‘would not be a radical change given non-discrimination protections already exist within the Racial Discrimination Act 1975’.[79] Further, judicial review is a reactive response to laws that are claimed to breach the limits set by constitutional guarantees. Morris notes that only laws involving ‘egregious racism’ would get struck down, with the Court otherwise ‘defer[ring] to Parliament with respect to appropriate special measures’.[80] This contrasts to the ex-ante First Nations Voice discussed in Part VI(D). Finally, even where the Court finds in favour of an Aboriginal or Torres Strait Islander litigant, Rosenberg contends that Courts lack the tools to enforce decisions and are instead heavily dependent on elected officials or popular support.[81] This is particularly pertinent given the High Court’s resistance to policy matters, stemming from perceived understandings of judicial independence and the separation of powers.
Accordingly, the unfavourable prospects of the High Court achieving functional reform for Aboriginal and Torres Strait Islander peoples could have plausibly lessened the appeal of rights provisions, especially in the face of pragmatic realities.
The absence of robust judicial rights review, underscored by the prevailing legal-political culture, informs pragmatic considerations that have likely contributed to the transition from constitutional guarantees. The major political parties’ pushback to judicial involvement in the rights arena, suggests a parliamentary-centric model may gain greater political backing. In view of Australia’s poor history of successful referendums,[82] Aboriginal and Torres Strait Islander advocates cite political endorsement as an important driver of the Voice proposal, as a feasible but non-minimalist model.[83]
In addition to the longstanding belief that rights protection falls within Parliament’s purview, there is also explicit hostility to the Court’s involvement in constitutional recognition. Section 116A has attracted particular aversion from conservative politicians who purport ‘it could enable the High Court to discover other human rights in the Constitution, which might then be applied to strike down laws’.[84] Indigenous Liberal MP, Ken Wyatt, noted that people in his party would oppose a non-discrimination prohibition,[85] such as former Prime Minister, Tony Abbott, who rejected the provision as amounting to a ‘one clause bill of rights’.[86] It is worth recognising that the inaccuracy of such propositions does not discount their effect upon the shift away from constitutional guarantees. For instance, while the Expert Panel stated that it was not endorsing a bill of rights,[87] and Davis and Williams affirm that the Court could not turn a non-discrimination clause into ‘any form of Bill of Rights’,[88] such comments retain influence. This is particularly given that a successful referendum requires political backing, as well as having the potential to shape popular opinion. Furthermore, according to Rosenberg’s theory, the Court’s capacity to effectively adjudicate a racial non-discrimination guarantee depends on legislative and executive support for reform.[89] In addition to the lack of Coalition or Labor endorsement,[90] protecting Aboriginal and Torres Strait Islander peoples’ interests could be contingent on the prevailing political will. Thus, the potential to debilitate the force of a racial non-discrimination provision may have encouraged the progression to a potentially more stable Voice model.
The difficulties of achieving a successful referendum enhances the need to ensure a constitutional recognition proposal’s viability. While there are no concrete determinants of referendum success, Williams and Hume offer several indications.[91] First, the authors identify the importance of bipartisan support,[92] which the Panel’s recommendations failed to attain.[93] Further, in light of Australian voters’ conservatism at referendums,[94] the need for popular ownership and education[95] may be affected by warnings of a ‘one clause bill of rights’, or anti-democratic ‘activist judges’ abrogating Parliamentary power.[96] Moreover, Williams notes the successful 1967 Referendum secured popular support as it was ‘born out of a peoples’ movement’.[97] By contrast, although the Expert Panel conducted a national consultation program,[98] it was primarily government driven. Conversely, the thrust behind the Voice arose out of the First Nations Regional Dialogues and the Uluru Convention, embodying a proposal ‘owned’ by many First Peoples. An achievable proposal is especially critical seeing as a number of Aboriginal and Torres Strait Islander advocates have expressed concerns that an unsuccessful referendum would be a major setback for national reconciliation,[99] could cause people to walk away,[100] and would create such disappointment and bitterness that a second chance would be improbable.[101] Still, First Nations leaders have strongly censured ‘minimalist, half-hearted recognition’.[102]
The Expert Panel’s recommended sections 51A and 116A were together accepted by many Aboriginal and Torres Strait Islander peoples. However, there is widespread consensus that symbolic acknowledgement and moderating the races power without a racial discrimination prohibition is insufficient,[103] and has been described as ‘a disingenuous act of recognition’.[104] A racial discrimination prohibition’s political unviability[105] led Aboriginal and Torres Strait Islander leaders to develop an alternative approach, which accounted for the ‘conservative institutional and political landscape’[106] and the challenges of constitutional change.[107] Critically, Davis affirms that a First Nations representative body is not ‘adversarial to the expert panel’, but rather is a response to the lack of real debate on section 116A, due to conservatives’ resistance.[108] Thus, the need to pragmatically accommodate to the political climate, compounded by the difficulty of constitutional amendment, provides a convincing explanation for the transition from constitutional guarantees. Notably, as the next section highlights, while a First Nations Voice seeks to preserve parliamentary sovereignty and curtail judicial intervention,[109] it is not a minimalist approach.
Having identified a legal constitutional model’s limitations as potentially motivating the shift away from the High Court’s involvement, this section compares the parliamentary-centric Voice model’s effectiveness and the agency it offers.
The belief that a political constitutional model is more consistent with effective rights protection manifests in the advantages of an ex-ante check and greater flexibility, concerns about legislative ‘debilitation’, and the significance of the body’s political authority.
The advisory body’s ex-ante nature as a pre-legislative check on Parliament affords a greater breadth of areas in which the body could have input before laws are passed. In contrast, as the High Court only hears justiciable matters, the Court would likely determine only a small number of the issues that legislation involves. Further, the intention to set out the body’s detail in ordinary legislation allows for unanticipated design deficiencies to be corrected, as well as the potential for future developments. This flexibility and freedom from ‘verbal rigidity’,[110] juxtaposes with the challenges of drafting constitutionally entrenched rights-based guarantees.
Moreover, the non-justiciable Voice proposal mitigates the risk of judicial review ‘debilitating’ legislative decision-making. Tushnet argues that ‘judicial overhang can deflect legislators from considering constitutional questions’, which may ‘produce unsatisfactory laws’.[111] Davis describes the problem as ‘juridification’, whereby ‘courts are empowered to resolve disputes which were previously resolved by other actors in the separation of powers’.[112] He warns that juridification can enable Parliament to evade responsibility for potential legislative impacts by ‘insist[ing] that they are powerless to act in the face of a court ruling’.[113] Recourse to the High Court via constitutional guarantees or a justiciable Voice model may therefore make it harder to ‘develop the legislative ethos’.[114] On the other hand, the First Nations body’s potential to stimulate a responsible legislative culture lies in the body’s political authority. Davis argues that if constituted as a result of a referendum, the body could ‘demonstrate a popular mandate which would enable it to insist that Parliament respond respectfully to its proposals’.[115] Davis maintains that the political cost generated by ‘actively ignor[ing] an institution uniquely created by the express will of the people’, would encourage the legislature to listen to the body’s advice.[116]
Nevertheless, the First Nations body’s constitutional legitimacy and political authority still provide no guarantee that Parliament will meaningfully consider its views. As identified, there are concerns that non-justiciability could emasculate the Voice from impacting laws that are passed. I question whether embedding judicial review, as embodied in Davis and Dixon’s duty to consult model,[117] is more effective. Excluding a High Court role mirrors the reasons that led to the shift away from constitutional rights provisions, namely strong adherence to parliamentary sovereignty and resistance to judicial rights protection. The leading proposals intentionally assert that the Voice will not compromise Parliamentary power to make laws.[118] Subsequently, while having both ex-ante and ex-post protections is likely more effective, it is not currently feasible.
Aboriginal and Torres Strait Islander peoples’ calls for constitutional recognition that confers agency and power is envisioned in a First Nations advisory body. Such desires are grounded in the right to self-determination, which recognises Australia’s First Peoples’ autonomy in matters relating to their affairs.[119] Lino affirms that First Nations autonomy is best achieved ‘not through the direct legal guarantee of a right of self-determination but through the legal structuring of the Indigenous-state relationship’.[120] Therefore, a political constitutional model that enables ‘the right to participate’[121] may be more effective than accessing courts as an indirect means of participation. Imperatively, this right to participate is not limited to democratic electoral processes, but addresses what Pearson describes as a ‘predicament of feeble democratic participation at best and exclusion at worst’.[122] Proponents articulate that the proposal’s strength inheres in affording Aboriginal and Torres Strait Islander peoples active involvement in matters affecting their lives.[123] The Cape York Institute notes that the Voice ‘presents a preventative and proactive approach, rather than a reactive, litigious approach’.[124] In discussions that highlight the advisory body’s advantages, recognition via the courts is frequently denounced as requiring ‘constant litigation’,[125] ‘abrogat[ing] to Parliament and judges for our rights’,[126] and ‘leaving most Indigenous people on the sidelines’.[127] Furthermore, Russel argues that relying on ‘white man’s courts’ to define and deliver Aboriginal and Torres Strait Islander peoples’ rights, has rendered the content of such rights ‘anaemic’.[128] He submits that Aboriginal and Torres Strait Islander peoples seek autonomy that ‘is incompatible with the unitary, monopolising, and hierarchical concept of sovereignty, reflected to date in even the most progressive judgments...on Aboriginal rights’.[129] In Kymlicka’s words, a rights-based model that appears ‘neutral’ may in fact ‘dramatically reduce the political power and cultural viability’ of Aboriginal and Torres Strait Islander peoples.[130] In generating a greater capacity for proactive political participation, a First Nations body avoids relying on a court imbued with settler sovereignty biases.
Accordingly, a political constitutional model’s advantages and the Voice proposal’s agency offer compelling principled explanations for the transition from a court-centric model.
Having canvassed four possible reasons for the shift to a political constitutional prototype, this final part considers which explanation is more persuasive. In light of this conjecture, I examine whether this shift has in fact been positive.
It is important to first note that there is a difference between what is logically more persuasive and what empirically led to the shift. While no definitive conclusions can be made, identifying the popular support for the court’s role in rights protection provides helpful insight. Primarily, despite the High Court’s limited history and effectiveness in protecting First Peoples’ rights, during the Expert Panel’s consultations, Davis and Dixon identify the contrast between Aboriginal and Torres Strait Islander communities’ ‘deep-seated mistrust of the Parliament’ and their faith in the High Court ‘as a public institution that did fairly represent ATSI peoples’.[131] This trust persisted even when it was conveyed that section 116A could result in discriminatory laws as the Court is likely to defer to Parliament.[132] Further, in contrast to the enduring resistance within the legal-political culture to judicial rights protection, evidence suggests that there is ongoing public support for court involvement. First, Williams and Kildea state that despite the ‘political storm’, the Mason Court’s landmark decisions cannot be sufficiently labelled ‘countermajoritarian’ given that they ‘did not necessarily run counter to the preferences of legislative or popular majorities’.[133] Moreover, the 2009 National Human Rights Consultation revealed a divergence between the political-legal community’s hostility to the ‘politicisation of the judiciary’,[134] and opinion poll findings that 84% of people perceive the courts to have a high or very high responsibility for rights protection.[135] Finally, as identified in Part III, the Expert Panel reported considerable endorsement for reforms to the races power and a racial non-discrimination clause. Subsequently, favourable community sentiment towards the Court’s role in rights protection indicates that the shift away from the High Court’s involvement was most likely driven by political and pragmatic reasons. As Dodson asserts, despite Aboriginal and Torres Strait Islander peoples’ and the broader public’s strong support, the ambivalent response towards section 116A was due to constitutional conservatives’ objection that the clause would ‘shift power from elected politicians to unelected judges’.[136] The cogency of pragmatic explanations is further substantiated by the fact that concerns regarding the Court’s encroachment on parliamentary sovereignty, the emphasis on the body’s non-justiciability and the likelihood of referendum success have dominated debates. It is both logically and empirically persuasive that Aboriginal and Torres Strait Islander peoples’ advocacy was compelled to accommodate to the political posture. In addition, the Voice’s agency is also strongly asserted among Aboriginal and Torres Strait Islander peoples, as well as other commentators. Although, while agency provides a strong principled reason for the progression away from constitutional rights provisions, it does not necessarily support the Voice proposal’s minimal High Court role.
While pragmatism and agency are likely the most empirically feasible explanations, the High Court’s limited role and effectiveness in rights protection should not be discounted. Even though these factors may not be explicitly cited, they provide the foundation upon which pragmatic considerations and a desire for agency are based. While this influence may not be discernible, it does not dilute its abiding effect. For instance, the High Court’s history of insufficiently upholding Aboriginal and Torres Strait Islander peoples’ rights likely instilled doubt that constitutional guarantees would be effective. In fact, popular support for the rights-based model could instead be accounted for by the desire to address the races power’s unintended consequences, as well as conventionally relying on courts as providing First Peoples with a platform to assert their rights in an imperialist society.[137] Therefore, it may not be possible or even constructive to determine which explanation is more persuasive. Instead, it may be more beneficial to recognise that the shift to a political constitutional model likely entailed a movement steered by several interconnected factors, fundamentally rooted in Australia’s distinct constitutional, legal and political fabric. Dixon and Stone aptly describe such ‘invisible elements’ in constitutional law, as ‘often depend[ing] on political dynamics and interactions over which no individual actor is fully master or in control, or even fully cognisant of’.[138] Accordingly, a more valuable question to consider is whether this shift is in fact favourable.
The efficacy of the shift from a court-centric to a parliamentary-centric model can be examined from both a pragmatic and a principled viewpoint. A pragmatic interpretation reveals that the High Court’s limited role in rights protection and the adherence to legislative supremacy makes the Voice more constitutionally achievable, favouring the shift. Yet, I argue that pragmatic justifications alone, without the prospect of functional reform, are not adequate. Thus, turning to a principled perspective, in the previous section I proposed that the Voice’s agency provides a persuasive principled explanation, which gives the impression that the shift is also intrinsically beneficial. A core aspect of constitutional recognition is rebalancing the constitutional relationship between Aboriginal and Torres Strait Islander peoples and the State, which Birrell contends requires ‘break[ing] the back of plenary power’.[139] Davis and Dixon note that this involves ‘true norms of listening, dialogue, negotiation and engagement’.[140] Thus, by empowering First Peoples, rather than the Court, the Voice proposal provides a significant advantage over rights guarantees in seeking to tangibly redefine the constitutional arrangements.
A further factor underpinning the shift’s inherent value is the growing acknowledgement that the recognition of Aboriginal and Torres Strait Islander peoples has been wrongly conflated with race and is instead about Indigeneity.[141] Pearson affirms that Aboriginal and Torres Strait Islander peoples’ ‘inclusion in Australian citizenship in 1967...on the basis of race...reflected the bias of the time’ and has ‘deleterious implications for their citizenship’.[142] The irrelevance of race supports the transition from constitutional clauses relating to race and discrimination, to the more affirmative Voice model, which seeks to ‘mak[e] space for the first peoples to play an active role in the nation’.[143] The Voice’s positive framing arising from the Uluru Statement is also a more attractive proposal to the wider public, compared to a negative focus on race and discrimination embedded in colonial legacies. As Davis affirms, ‘a referendum to enshrine a voice to Parliament is something that Australians understand intuitively’, namely, that Aboriginal and Torres Strait Islander peoples should be consulted on laws that affect them.[144]
Nonetheless, rights protection necessitates more than mere rhetoric, instead requiring a substantive, on the ground capacity to make decisions and improve livelihoods. By establishing the structures for effective participation, the Voice offers a more promising solution, especially when compared to the uncertainty of rights-based provisions. Yet, while agency provides a principled reason for moving away from constitutional guarantees, apart from the possible concern of legislative debilitation, there is less of a principled reason for omitting judicial recourse if Parliament fails to meaningfully listen to the Voice. Indeed, while the High Court’s minimal involvement in rights protection is professed as conforming with ‘the existing political tradition of respect for judicial independence’[145] this is limited to a political constitutionalist’s understanding of the separation of powers. I submit that excluding the High Court in fact draws inconsistencies with the separation of powers, as the Court cannot neutralise legislative or executive tendencies to usurp power[146] if judicial review, the mechanism by which it has the power to do so, is expressly removed. Thus, the body’s effectiveness will largely depend on the norms and conventions developed once the Voice is established.
This paper highlighted that a substantive High Court role in the constitutional recognition of Aboriginal and Torres Strait Islander peoples is no longer feasible in the current constitutional and political climate. Yet, the history of disadvantage that Australia’s First Peoples face, given their subordinate position in a majoritarian democracy, prima facie lessens the appeal of a political constitutional model. While this appears contrary to the parliamentary-centric First Nations body, the prototypical Voice proposal seeks to address this democratic shortcoming by positioning Aboriginal and Torres Strait Islander peoples within ‘the public institutional and parliamentary machinery of the nation’.[147] In seeking to redistribute public power ‘to Indigenous polities rather than simply among the institutions of the settler state’,[148] the shift from a court-centric rights model to a parliamentary-centric Voice is innovative and favourable. In view of the pragmatic and political reasons for incorporating non-justiciability, whether the Voice leads to functional reform ultimately turns on parliamentary and executive practice, and whether, as Davis affirms, ‘the state hears, not just listens, to what it is that Aboriginal and Torres Strait Islander peoples are saying’.[149]
[*] In this paper, I use the terms ‘First Nations Peoples’ and ‘First Peoples’ to refer to Aboriginal and Torres Strait Islander peoples.
[**] BSRAP/LLB, University of New South Wales. This paper was first submitted as the final assessment for LAWS3292: The High Court of Australia. I thank Professor Rosalind Dixon for her guidance, support and encouragement in developing this paper.
[1] Peter H. Russell, ‘High Courts and the Rights of Aboriginal Peoples: The Limits of Judicial Independence’ (1998) 61(2) Saskatchewan Law Review 247, 258.
[2] Robert W. Gordon, ‘Critical Legal Histories’ (1984) 36(1-2) Stanford Law Review 57, 111.
[3] Adam Tomkins, ‘The Role of the Courts in the Political Constitution’ (2010) 60(1) University of Toronto Law Journal 1, 2.
[4] Jeremy Waldron, ‘The Core of the Case against Judicial Review’ [2006] YaleLawJl 35; (2006) 115(6) The Yale Law Journal 1346, 1387.
[5] Ibid 1348, 1351.
[6] Ibid 1395-6.
[7] Ibid 1398.
[8] Ibid 1351.
[9] John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980).
[10] Ibid 81; John Hart Ely, ‘Toward a Representation-reinforcing Mode of Judicial Review’ (1978) 37 Maryland Law Review 451, 469.
[11] Daniel Farber and Philip Frickey, ‘Is Carolene Products Dead – Reflections on Affirmative Action and the Dynamics of Civil Rights Legislation’ (1991) 79(3) California Law Review 685, 690.
[12] George Williams, ‘Recognising Indigenous Peoples in the Australian Constitution: what the Constitution should say and how the referendum can be won’ (2011) 5(1) Land, Rights, Laws: Issues of Native Title 1, 3-4.
[13] Megan Davis, ‘Indigenous Rights and the National Human Rights Consultation’ [2010] IndigLawB 14; (2010) 7(17) Indigenous Law Bulletin 24, 25.
[14] Megan Davis, ‘Competing Notions of Constitutional “Recognition”: Truth and Justice or Living “Off the Crumbs that Fall Off the White Australian Tables”’ in Paula Waring (ed), Papers on Parliament: Lectures in the Senate Occasional Lecture Series, and Other Papers – Number 62 (Department of the Senate, 2014) 113 (‘Competing Notions of Constitutional “Recognition”’).
[15] Shane Pennington, ‘Completing Ely’s Representation Reinforcing Theory of Judicial Review by Accounting for the Constitutional Values of State Citizenship’ (2010) 15(1) Texas Review of Law & Politics 219, 223-4.
[16] See, eg, Megan Davis, ‘Competing Notions of Constitutional “Recognition”’ (n 14).
[17] See Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (‘Expert Panel’), Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (2012) 109.
[18] Ibid 109.
[19] Ibid 95.
[20] Ibid 70.
[21] Ibid 177.
[22] This recommendation was accompanied by the repeal of section 51(xxvi), the ‘races power’: ibid 153.
[23] Section 116A included a qualification to enable laws ‘for the purpose of overcoming disadvantage’: ibid 173.
[24] Megan Davis, ‘A Rightful Place: Correspondence’ (2014) 56 Quarterly Essay 73, 77-78.
[25] Megan Davis, ‘Competing Notions of Constitutional “Recognition”’ (n 14).
[26] Noel Pearson, ‘A Rightful Place: Race, Recognition and a More Complete Commonwealth’ (2014) 55 Quarterly Essay 1, 45 (‘A Rightful Place’).
[27] 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] MonashULawRw 21; (2014) 40(2) Monash University Law Review 488, 524.
[28] Patrick Dodson, ‘Until the Chains are Broken’ (Speech delivered at the Vincent Lingiari Memorial Lecture, 8 September 1999) <https://www.cpa.org.au/z-archive/g1999/970dod.htm>; Celeste Liddle, ‘A Rightful Place: Correspondence’ (2014) 56 Quarterly Essay 87, 87-88; Teela Reid, ‘Keeping the Fight Alive’ in Megan Davis and Marcia Langton (eds), It’s Our Country (Melbourne University Press, 2016) 155, 160; Patrick Dodson, ‘Navigating a Path Towards Meaningful Change and Recognition’ in Megan Davis and Marcia Langton (eds), It’s Our Country (Melbourne University Press, 2016) 180, 184 (‘Navigating a Path’); Noel Pearson, ‘There’s No Such Thing as Minimal Recognition – There is Only Recognition’ in Megan Davis and Marcia Langton (eds), It’s Our Country (Melbourne University Press, 2016) 163, 173 (‘There’s No Such Thing as Minimal Recognition’).
[29] Expert Panel (n 17) 88.
[30] Ibid 91.
[31] Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Parliament of Australia, Final Report (2015) xiii-xv. See also Rosalind Dixon and George Williams, ‘Drafting a Replacement for the Races Power in the Australian Constitution’ (2014) 25(2) Public Law Review 83.
[32] Referendum Council, Final Report of the Referendum Council (Commonwealth of Australia, 30 June 2017) 104.
[33] This model had the support of the Shorten Labor Government: Bill Shorten, ‘Response to the Closing the Gap Report’ (Speech delivered at the Parliament of Australia, Canberra, 12 February 2018) <https://www.billshorten.com.au/speech_response_to_the_closing_the_gap_report_canberra_monday_12_february_2018>. See also Frank Brennan, ‘Strong Faith. Strong Youth. Strong Future — Walking Together in a Movement of the Australian People for a Better Future’ (Speech, National Aboriginal and Torres Strait Islander Catholic Council Assembly, 1 October 2018) <https://www.eurekastreet.com.au/article/walking-together-for-a-better-future#>.
[34] Referendum Council (n 32); Cape York Institute, Submission No 244 to Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples (June 2018) (‘Submission No 244’); Fergal Davis, Submission No 135 to Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (15 June 2015) (‘Submission No 135’); Anne Twomey, ‘An Indigenous Advisory Body: Addressing the Concerns about Justiciability and Parliamentary Sovereignty’ [2015] IndigLawB 32; (2015) 8(19) Indigenous Law Bulletin 6.
[35] See, eg, Cape York Institute, Supplementary Submission No 38.2 to Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (January 2015) 25 (‘Supplementary Submission No 38.2’); Gabrielle Appleby, ‘Constitutionalising an Indigenous Voice in Australian Law-Making: Some Institutional Design Challenges’ (2014/2015) 18(2) Australian Indigenous Law Review 98. See also Rosalind Dixon and Tom Ginsburg, ‘Deciding Not to Decide: Deferral in Constitutional Design’ (2011) 9(3-4) International Journal of Constitutional Law 636.
[36] See, eg, Referendum Council (n 32); Twomey (n 34); Cape York Institute, Submission No 244 (n 34); National Congress of Australia’s First Peoples (‘National Congress), Supplementary Submission No 292 to Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples (June 2018); Fergal Davis, Submission No 135 (n 34); Shireen Morris, ‘The Argument for a Constitutional Procedure for Parliament to Consult with Indigenous Peoples when Making Laws for Indigenous Affairs’ (2015) 26 Public Law Review 166 (‘The Argument for a Constitutional Procedure’).
[37] For example, whether the Voice’s advice is tabled in Parliament.
[38] 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, 258; George Williams, ‘Should the Australian Constitution Establish an Indigenous Advisory Body’ (2014) 18(2) Australian Indigenous Law Review 111, 113-115; Cheryl Saunders, Submission No 136 to Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples ( 2015) 2; Michael Mansell, ‘Is the Constitution a Better Tool than Simple Legislation to Advance the Cause of Aboriginal Peoples?’ in Megan Davis and Marcia Langton (eds), It’s Our Country (Melbourne University Press, 2016) 145, 153.
[39] Williams, ‘Should the Australian Constitution Establish an Indigenous Advisory Body’ (n 38) 115.
[40] Davis and Dixon (n 38) 259.
[41] George Williams, ‘The High Court, the Constitution and Human Rights’ (2015) 21(1) Australian Journal of Human Rights 1, 3-4.
[42] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 136 (Mason CJ).
[43] Rosalind Dixon and Gabrielle Appleby, ‘Constitutional Implications in Australia Explaining the Structure – Rights Dualism’ in Rosalind Dixon and Adrienne Stone (eds), The Invisible Constitution in Comparative Perspective (Cambridge University Press, 2018) 343, 361.
[44] Rosalind Dixon, ‘An Australian (Partial) Bill of Rights’ (2016) 14(1) International Journal of Constitutional Law 80, 97.
[45] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 (‘Engineers’ Case’).
[46] Dixon and Appleby (n 43) 359.
[47] See Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1; then The Wik Peoples v State of Queensland & Ors (1996) 187 CLR 1, after Mason Court era (under the Brennan Court).
[48] Theunis Roux, ‘Reinterpreting ‘the Mason Court Revolution’: An Historical Institutionalist Account of Judge-Driven Constitutional Transformation in Australia’ (2015) 43(1) Federal Law Review 1, 6.
[49] Ibid 7, 19, 13.
[50] Rosalind Dixon, ‘An Australian (Partial) Bill of Rights’ (n 44) 98.
[51] Morris, ‘The Argument for a Constitutional Procedure’ (n 36) 167.
[52] Twomey (n 34) 6.
[53] Dixon and Appleby (n 43) 344.
[54] Williams, ‘Should the Australian Constitution Establish an Indigenous Advisory Body’ (n 38) 112.
[55] Dixon and Appleby (n 43) 370.
[56] Morris, ‘The Argument for a Constitutional Procedure’ (n 36) 169.
[57] Dawn Casey, ‘Refugees in Our Own Country’ in Megan Davis and Marcia Langton (eds), It’s Our Country (Melbourne University Press, 2016) 118, 125.
[58] Pearson, ‘There’s No Such Thing as Minimal Recognition’ (n 28) 174. See also Twomey (n 34); Cape York Institute, Supplementary Submission No 38.2 (n 35).
[59] Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (University of Chicago, 1993) 8.
[60] Rosalind Dixon, ‘The Core Case for Weak-Form Judicial Review’ (2017) 38(6) Cardozo Law Review 2193, 2214.
[61] Megan Davis and George Williams, Everything You Need to Know About the Referendum to Recognise Indigenous Australians (NewSouth Publishing, 2015) 108-109.
[62] Ibid 109.
[63] Roux (n 48) 24.
[64] Robert van Krieken, ‘From ‘Milirrpum’ to ‘Mabo’: The High Court, ‘Terra Nullius’ and Moral Entrepreneurship’ [2000] UNSWLawJl 3; (2000) 23(1) UNSW Law Journal 63, 76.
[65] Roux (n 48) 24.
[66] Rosalind Dixon, ‘An Australian (Partial) Bill of Rights’ (n 44) 98.
[67] Rosenberg (n 59) 11.
[68] Davis and Williams (n 61) 49-66. See, eg, Milirrpum v Nabalco (1971) 17 FLR 141 (note this case was in the Supreme Court of the Northern Territory: unsuccessful land rights claim); Coe v Commonwealth (No 2) [2002] HCA 58; (1993) 214 CLR 422 (rejected the notion of Aboriginal sovereign rights); The Wik Peoples v State of Queensland & Ors (1996) 187 CLR 1 (despite the High Court’s positive decision, this was supplanted by legislation diminishing Aboriginal rights); Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337 (see discussion in Part III).
[69] Dixon and Williams (n 31) 88.
[70] Ibid 83.
[71] Ibid.
[72] Ibid 84-88. See the article for detail of each proposed draft provision.
[73] Ibid 85.
[74] Ibid 86.
[75] Ibid.
[76] Ibid 88.
[77] Waldron, ‘The Core of the Case against Judicial Review’ (n 4) 1351.
[78] National Congress (n 36) 4.
[79] Reid (n 28) 157.
[80] Morris, ‘The Argument for a Constitutional Procedure’ (n 36) 191.
[81] Rosenberg (n 59) 15-16.
[82] George Williams and David Hume, People Power: The History and Future of the Referendum in Australia (University of New South Wales Press, 2010) 255; Davis and Williams (n 61) 126; Marcia Langton, ‘Finding a Resolution to Constitutional Recognition of Indigenous Australians’ in Megan Davis and Marcia Langton (eds), It’s Our Country (Melbourne University Press, 2016) 27, 32 (‘Finding a Resolution to Constitutional Recognition’); Rosalind Dixon, ‘An Australian (Partial) Bill of Rights’ (n 44) 80; George Williams, ‘How to Win the Referendum to Recognise Indigenous Peoples in the Australian Constitution’ [2011] IndigLawB 34; (2011) 7(25) Indigenous Law Bulletin 18, 18 (‘How to Win the Referendum’).
[83] See, eg, Langton, ‘Finding a Resolution’ (n 82) 39; Cape York Institute, Submission No 244 (n 34) 8-9; Pearson, ‘A Rightful Place’ (n 26); Eddie Cubillo, ‘The Opportunity and the Challenge of Constitutional Recognition’ in Megan Davis and Marcia Langton (eds), It’s Our Country (Melbourne University Press, 2016) 64, 68.
[84] Davis and Williams (n 61) 109-110.
[85] Victoria Laurie and Natasha Robinson, ‘Time to get a move on with recognition: Ken Wyatt’, The Australian (online, 10 July 2015) <https://www.theaustralian.com.au/nation/time-to-get-a-move-on-with-recognition-ken-wyatt/news-story/5af9387ecc0c3859374e9f2bd10a4963>.
[86] SBS News, ‘Abbott backs Constitution recommendation’ SBS News (online), 26 February 2015 <https://www.sbs.com.au/news/abbott-backs-constitution-recommendation>; Patricia Karvelas, ‘Historic Constitution vote over indigenous recognition facing hurdles’, The Australian (online, 19 January 2012) <https://www.theaustralian.com.au/subscribe/news/1/?sourceCode=TAWEB_WRE170_a&dest=https%3A%2F%2Fwww.theaustralian.com.au%2Fnational-affairs%2Findigenous%2Fhistoric-constitution-vote-over-indigenous-recognition-facing-hurdles%2Fnews-story%2F92c14ff592d43981049fdade4280ddbf&memtype=anonymous&mode=premium>.
[87] Expert Panel (n 17) 171.
[88] Davis and Williams (n 61) 110.
[89] Rosenberg (n 59) 31.
[90] Dixon and Williams (n 31) 84.
[91] Williams and Hume (n 82).
[92] Ibid 244.
[93] Morris, ‘The Argument for a Constitutional Procedure’ (n 36) 191; Dixon and Williams (n 31) 84.
[94] Williams and Hume (n 82) 255.
[95] Ibid 246, 253.
[96] Greg Sheridan, ‘Constitutional change will divide not unite the nation’, The Australian (online, 20 September 2014) <https://www.theaustralian.com.au/commentary/opinion/constitutional-change-will-divide-not-unite-the-nation/news-story/ed3fdd9de4d4b4fe0527993544f2f185>.
[97] Williams, ‘How to Win the Referendum’ (n 82) 19.
[98] See Expert Panel (n 17) 4.
[99] Expert Panel (n 17) 224-225.
[100] Victoria Laurie and Natasha Robinson, ‘Time to get a move on with recognition: Ken Wyatt’, The Australian (online, 10 July 2015) <https://www.theaustralian.com.au/nation/time-to-get-a-move-on-with-recognition-ken-wyatt/news-story/5af9387ecc0c3859374e9f2bd10a4963>.
[101] Marcia Langton, ‘A referendum without dog whistles ... is that possible?’, ABC News (online, 5 December 2011) <https://www.abc.net.au/news/2011-12-02/langton--/3709132>.
[102] Pearson, ‘There’s No Such Thing as Minimal Recognition’ (n 28) 168. See also Dodson, ‘Navigating a Path’ (n 28) 186; Megan Davis, ‘A Rightful Place: Correspondence’ (n 24) 80.
[103] See, eg, Referendum Council (n 32) 5; National Congress (n 36) 8; Megan Davis and Marcia Langton, ‘Introduction’ in Megan Davis and Marcia Langton (eds), It’s Our Country (Melbourne University Press, 2016) 8; Expert Panel (n 17) 167.
[104] Megan Davis, ‘A Rightful Place: Correspondence’ (n 24) 80.
[105] Morris, ‘The Argument for a Constitutional Procedure’ (n 36) 169; Cubillo (n 83) 67.
[106] Dodson, ‘Navigating a Path’ (n 28) 186.
[107] Pearson, ‘There’s No Such Thing as Minimal Recognition’ (n 28) 168.
[108] Megan Davis, ‘A Rightful Place: Correspondence’ (n 24) 78.
[109] Langton, ‘Finding a Resolution to Constitutional Recognition’ (n 82) 39; National Congress (n 36) 8.
[110] Jeremy Waldron, Law and Disagreement (Oxford University Press, 1999) 220.
[111] Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press, 1999) 58.
[112] Fergal Davis, Submission No 135 (n 34) 3.
[113] Ibid.
[114] Waldron, ‘The Core of the Case against Judicial Review’ (n 4) 1403.
[115] Fergal Davis, Submission No 135 (n 34) 3.
[116] Fergal Davis, ‘The Problem of Authority and the Proposal for an Indigenous Advisory Body’ [2015] IndigLawB 36; (2015) 8(19) Indigenous Law Bulletin 23, 24.
[117] Davis and Dixon (n 38) 259.
[118] Twomey (n 34) 7; Pearson, ‘A Rightful Place’ (n 26) 66; National Congress (n 36) 8.
[119] Universal Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007) arts 3, 4.
[120] Dylan Lino, ‘The Politics of Inclusion: The Right of Self-Determination, Statutory Bills of Rights and Indigenous Peoples’ [2010] MelbULawRw 29; (2010) 34(3) Melbourne University Law Review 839, 868.
[121] Waldron, Law and Disagreement (n 110) 249.
[122] Pearson, ‘A Rightful Place’ (n 26) 39.
[123] See, eg, Referendum Council (n 32) 14; Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, Parliament of Australia, Final Report (2018) 115-116; Sean Gordon, ‘Constitutional Recognition is Not a Feel-Good Exercise’ in Megan Davis and Marcia Langton (eds), It’s Our Country (Melbourne University Press, 2016) 138, 139-143; Pearson, ‘A Rightful Place’ (n 26) 50; Twomey (n 34) 9; Morris, ‘The Argument for a Constitutional Procedure’ (n 36) 191; National Congress (n 36) 3-4; Pearson, ‘There’s No Such Thing as Minimal Recognition’ (n 28) 174.
[124] Cape York Institute, Submission No 244 (n 34) 19.
[125] Sean Gordon (n 123) 141.
[126] Commonwealth of Australia, ‘National Human Rights Consultation Report’ (September 2009) 212 [9.2] (Patrick Dodson).
[127] Twomey (n 34) 9.
[128] Russel (n 1) 254, 269.
[129] Ibid 275.
[130] Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Clarendon Press, 1995) 52 (Kymlicka’s argument is in the context of minority rights in multicultural nations).
[131] Davis and Dixon (n 38) 256.
[132] Megan Davis, ‘A Rightful Place: Correspondence’ (n 24) 79.
[133] Paul Kildea and George Williams, ‘The Mason Court’ in Rosalind Dixon and George Williams (eds), The High Court, the Constitution and Australian Politics (Cambridge University Press, 2015) 244, 250 (for the national survey results following the key decisions, see 250-257).
[134] Commonwealth of Australia (n 126) 284-287. See, eg, submissions from John Howard, George Brandis SC, Malcom McLelland QC, John Hatzistergos MLC, Anne Twomey and Greg Donnelly MLC.
[135] This percentage was only marginally lower than the 86% figure for the government’s responsibility: Colmar Brunton Social Research, ‘National Human Rights Consultation – Community Research Phase’ (September 2009) 44 [2.4.3].
[136] Dodson, ‘Navigating a Path’ (n 28) 184.
[137] Russel (n 1) 258.
[138] Rosalind Dixon and Adrienne Stone, ‘The Invisible Constitution in Comparative Perspective’ in Rosalind Dixon and Adrienne Stone (eds), The Invisible Constitution in Comparative Perspective (Cambridge University Press, 2018) 3, 6-7.
[139] J.L. Birrell, ‘The Recognise Campaign and Constitutional Relationships between Indigenous Peoples and State’ (2016) 27(2) Public Law Review 124, 124, 142.
[140] Davis and Dixon (n 38) 260.
[141] Pearson, ‘A Rightful Place’ (n 26) 52; Cheryl Saunders, ‘Listening and Hearing: A Review of Two Books on Indigenous ‘Recognition’ In Australia’ (2016) 24(8) Indigenous Law Bulletin 25, 26; Langton, ‘Finding a Resolution to Constitutional Recognition’ (n 82) 31; Nyunggai Warren Mundine, ‘Unfinished Business’ in Megan Davis and Marcia Langton (eds), It’s Our Country (Melbourne University Press, 2016) 128, 133.
[142] Pearson, ‘A Rightful Place’ (n 26) 52.
[143] Davis and Langton (n 103) 5.
[144] ‘Australians grasp the logic of Indigenous parliamentary voice: Megan Davis’, PM (ABC Radio, 3 May 2019) (Megan Davis) <https://www.abc.net.au/radio/programs/pm/australians-grasp-logic-of-indigenous-parli-voice-megan-davis/11079080>.
[145] Roux (n 48) 17.
[146] Jon Elster, ‘On Majoritarianism and Rights’ (1992) 1 East European Constitutional Review 19, 23.
[147] Morris, ‘The Argument for a Constitutional Procedure’ (n 36) 188.
[148] Dylan Lino, ‘What is Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples?’ [2016] IndigLawB 16; (2016) 8(24) Indigenous Law Bulletin 3, 7.
[149] Megan Davis, ‘Ships that Pass in the Night’ in Megan Davis and Marcia Langton (eds), It’s Our Country (Melbourne University Press, 2016) 86, 87.
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