TY - JOUR
T1 - Love in the High Court
T2 - implications for Indigenous constitutional recognition
AU - Morris, Shireen
N1 - Accepted author version archived for non-commercial and non-derivative use with the permission of the author/s and according to publisher conditions. For further rights please contact the publisher.
PY - 2021/9
Y1 - 2021/9
N2 - This article considers implications of the recent Love decision in the High Court for the debate about Indigenous constitutional recognition and a First Nations constitutional voice. Conceptually, it considers how the differing judgments reconcile the sui generis position of Indigenous peoples under Australian law with the theoretical ideal of equality—concepts which are in tension both in the judicial reasoning and in constitutional recognition debates. It also discusses the judgments’ limited findings on Indigenous sovereignty, demonstrating the extent to which this is predominantly a political question that cannot be adequately resolved by courts. Surviving First Nations sovereignty can best be recognised and peacefully reconciled with Australian state sovereignty through constitutional reform authorised by Parliament and the people. The article then discusses political ramifications. It argues that allegations of judicial activism enlivened by this case, rather than demonstrating the risks of a First Nations voice, in fact illustrate the foresight of the proposal: a First Nations voice was specifically designed to be non-justiciable and therefore intended to address such concerns. Similarly, objections that this case introduced a new, race-based distinction into the Constitution are misplaced. Such race-based distinctions already exist in the Constitution’s text and operation. The article then briefly offers high-level policy suggestions addressing two practical issues arising from Love. With respect to the three-part test of Indigenous identity, it suggests a First Nations voice should avoid the unjustly onerous burdens of proof that are perpetuated in some of the reasoning in Love. It also proposes policy incentives to encourage Indigenous non-citizens resident in Australia to seek Australian citizenship, helping to prevent threats of deportation like those faced by Love and Thoms.
AB - This article considers implications of the recent Love decision in the High Court for the debate about Indigenous constitutional recognition and a First Nations constitutional voice. Conceptually, it considers how the differing judgments reconcile the sui generis position of Indigenous peoples under Australian law with the theoretical ideal of equality—concepts which are in tension both in the judicial reasoning and in constitutional recognition debates. It also discusses the judgments’ limited findings on Indigenous sovereignty, demonstrating the extent to which this is predominantly a political question that cannot be adequately resolved by courts. Surviving First Nations sovereignty can best be recognised and peacefully reconciled with Australian state sovereignty through constitutional reform authorised by Parliament and the people. The article then discusses political ramifications. It argues that allegations of judicial activism enlivened by this case, rather than demonstrating the risks of a First Nations voice, in fact illustrate the foresight of the proposal: a First Nations voice was specifically designed to be non-justiciable and therefore intended to address such concerns. Similarly, objections that this case introduced a new, race-based distinction into the Constitution are misplaced. Such race-based distinctions already exist in the Constitution’s text and operation. The article then briefly offers high-level policy suggestions addressing two practical issues arising from Love. With respect to the three-part test of Indigenous identity, it suggests a First Nations voice should avoid the unjustly onerous burdens of proof that are perpetuated in some of the reasoning in Love. It also proposes policy incentives to encourage Indigenous non-citizens resident in Australia to seek Australian citizenship, helping to prevent threats of deportation like those faced by Love and Thoms.
UR - http://www.scopus.com/inward/record.url?scp=85106423829&partnerID=8YFLogxK
U2 - 10.1177/0067205X211016584
DO - 10.1177/0067205X211016584
M3 - Article
SN - 0067-205X
VL - 49
SP - 410
EP - 437
JO - Federal Law Review
JF - Federal Law Review
IS - 3
ER -