Justiciability and the Voice

Abstract

In 2017, Aboriginal and Torres Strait Islander peoples delivered the Uluru Statement from the Heart, calling for ‘substantive constitutional change and structural reform … to empower our people and take a rightful place in our own country’. Chief among its proposals was ‘the establishment of a First Nations Voice enshrined in the Constitution’. Justiciability has been a key issue in the debate over and design of the Voice. To ensure the Voice would not be a ‘third chamber’, the common view has been that the Voice should not be justiciable. This article makes three arguments. First, justiciability of the Voice is more complex than is sometimes assumed, because justiciability itself is not a monolithic concept, implicating multiple constitutional relationships. Second, due to this complexity, there are risks with attempting to ‘overengineer’ the constitutional text by including express non-justiciability language. Third, despite this complexity, it is possible to establish the Voice in a way that responds to the justiciability-related concerns.

Keywords: Constitutional Law, Australia, The Voice, Justiciability