Justiciability and the Voice

Public Law Review, Forthcoming

6 Pages Posted: 6 Feb 2023 Last revised: 13 Apr 2023

See all articles by Scott Stephenson

Scott Stephenson

University of Melbourne - Law School

Date Written: 2023


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

Suggested Citation

Stephenson, Scott, Justiciability and the Voice ( 2023). Public Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4347586 or http://dx.doi.org/10.2139/ssrn.4347586

Scott Stephenson (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010

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