High Court to control the Indigenous voice

Chris Merritt              2 June 2022

Published in the Australian Newspaper

When the time comes to decide on whether to entrench an Indigenous voice to parliament within the Constitution, the conduct of the High Court cannot be ­ignored.

The reason is simple: if the nation goes down this path, the ultimate fate of the new institution – like all other parts of the Constitution – would become the responsibility of the seven High Court judges, not parliament.

The meaning of a new constitutional provision on the voice would be determined by the court.

The clearest example is section 92 which, thanks to judicial interpretation, no longer comes within a bull’s roar of meaning what it says.

This provision, which was fundamental to federation, is supposed to guarantee that “trade, commerce and intercourse among the states … shall be absolutely free”.

Instead, it now means the High Court will only strike down barriers erected by states if the court believes they do not pass a test, created by the court, known as “structured proportionality”.

There is no longer anything absolute about the freedom to move around this nation.

So if we are asked to give the High Court control over the fate of the voice, it would be unwise to ignore what the court has done to the document that was approved by the people at the time of ­Federation.

The intention of those who argue for constitutional entrenchment is that the voice, as proposed, will be a benign addition to the nation’s founding document that will unite rather than divide this country.

But nobody should forget that the proponents of federation also had good intentions for freedom of movement.

The debate also needs to take account of what has happened since the court unilaterally “constitutionalised” and thereby took control of an aspect of Indigenous affairs that had previously been the responsibility of parliament.

In February, 2020, the court subjected parliament’s constitutional power to expel foreign criminals to a previously unknown race-based restriction.

In a decision known as Love and Thoms, it ruled that foreigners who can claim Aboriginal antecedents are no longer aliens, regardless of whether they hold foreign citizenship or are born in other countries.

That decision means parliament’s constitutional power to make laws for the deportation of aliens no longer extends to people with Aboriginal ancestry – even if they have been convicted of crimes that would lead to the deportation of others.

None of that is written in the Constitution and, according to the powerful dissent by Chief Justice Susan Kiefel, is beyond the proper role of the High Court.

But the Constitution means what the High Court says it means. Love and Thoms is a precedent and the thing about precedents is they are usually the beginning of a line of authority that can lead to destinations that nobody foresaw.

That is not the case with statutory institutions.

Consider this possibility: if foreign criminals with Aboriginal antecedents cannot be deported, what about foreign criminals who adopt Aboriginal culture? Are they also beyond parliament’s power to make laws concerning aliens? That example is not hypothetical. Right now, the High Court is considering whether to build on the Love and Thoms precedent by preventing the deportation of a New Zealander with Maori ancestry who adopted Aboriginal culture and has gone through an initiation ceremony, is recognised as a Mununjali man and is registered with Centrelink as an Aborigine.

But the court is also considering whether to overturn Love and Thoms – in line with an argument from the former federal government that has been before the court since January.

It was presented at a hearing last month by Stephen Donaghue, the Commonwealth Solicitor-General, just before Scott Morrison called the election.

This case, known as Minister for Immigration v Shayne Paul Montgomery, is the perfect example of how public policy can take a surprising turn when it becomes the responsibility of the court, rather than parliament.

The decision in Montgomery’s case, whatever it might be, will form the context for the debate over whether to give the court responsibility for the voice.

Because two of the four judges in the Love and Thoms majority have retired, there is a chance that the arguments of the former federal government might prevail.

Ranged against that is the doctrine that a change of personnel is not sufficient reason for the court to overturn one of its own recent decisions.

This is a last roll of the dice for Montgomery. If his adopted Aboriginality does not prevail, the normal character test in migration matters is unlikely to be of much help.

Since arriving in Australia, he has been very busy. A Federal Court judgment shows that between 1997 and 1999 he was found guilty without conviction in Queensland’s Children’s Court and District Court for a variety of offences for which he received community service orders, bonds and probation.

Between 2003 and 2015 he served periods of imprisonment of up to two years. His record includes convictions for break and enter, unlawful use of motor vehicle, stealing, attempted stealing, fraud, wilful damage, unlawful possession of suspected stolen property, possessing dangerous drugs, obstructing police, failure to appear, contravening directions and breaching order.

In 2019, after he served another 14 months in prison for aggravated burglary and commit offence in dwelling, he was placed in immigration detention and his visa was cancelled. When he was freed by the Federal Court, the High Court agreed to hear the government’s appeal.