The Constitutional and Legal Implications of the No Vote
10.04.25
At one level the answer to the question of what are the constitutional and legal implications of the no vote is short and direct. It simply means as a matter of law that the particular referendum proposal to amend the Constitution in that way was rejected by the Australian voters at that specific time in Australian history. That amendment will not become part of Australian constitutional law.
Legally, there is nothing in our constitutional system that prevents another proposal for constitutional recognition for Aboriginal and Torres Strait Islander people, or even the same proposal for constitutional recognition through the Voice, being put via the amendment process in section 128 of the Constitution.
Indeed, we know from our own as well as other constitutional systems that sometimes it takes more than one attempt at constitutional reform to achieve change, particularly where there is a public referendum involved and the exigencies of political debate and public votes.
It might mean – and here I am straying from the strictly legal – that the next attempt is approached differently, whether that be from the development of the proposal involving a citizens assembly, or greater regulation and independent fact checking of public debate.
But returning to the legal, I want to also note one further point. Which is to note that there is a complex, and subtle, relationship, between constitutional amendment and constitutional interpretation.
One of the more technical dimensions of the referendum debate was that the Voice proposal and the particular constitutional provision was constitutional risky, or constitutionally uncertain, in that it was not known how the High Court would approach its interpretation, particularly with respect to whether the Court would require government officers to seek the views of the Voice, or take the views of the Voice into consideration, before making decisions that affected Aboriginal and Torres Strait Islander people. Now I’m not going to rehash the strength and plausibility of these arguments, although I would note again, as I did frequently through the campaign, that these concerns were expressed by a minority within the legal profession, the vast majority of legal opinion and some of the most respected legal experts in the country indicated that this was a highly unlikely interpretation.
Here, though, I want to pause and think about what the NO vote means for constitutional interpretation. It was widely assumed it would not have any effect. But is that right?
There is now a well-traversed debate in Australian constitutional law circles about the correct approach to constitutional interpretation by High Court judges. There are different methods that are sometimes presented as polar extremes – legalism v activism, for instance. Historically, the Australian High Court has been committed to what is known as legalism, or formalism, which prioritises the legal text, legal method and precedent, in interpreting the Constitution. Within traditional forms of legalism, there is little acknowledgment of the role that a judge’s value judgments might play in determining constitutional questions, and creates what is now largely regarded as a fiction that the Court does not engage in law-making. Hiding behind the cloak of legalism is said to protect the High Court and its judges from political attack; however, of course, legalism provides only a veneer, because the Court is often in constitutional issues confronted with questions for which there is no clear answer provided by the text or precedent or other traditional legal methods.
Legalism was challenged in Australia from the 1970s, and this challenge was really brought into focus in the 1900s, under the leadership of Chief Justices Sir Anthony Mason and Sir Gerard Brennan. Conservative commentators from the legal and political sphere accused these judges, in cases such as the common law recognition of native title in Mabo or the finding of the implied freedom of political communication – of ‘activism’, that is, unrestrained law making in a way that accorded with their policy preferences and values. But that’s largely political hyperbole, pejorative, rather than engaging with what these judges are offering.
So, if we look more closely at what Sir Anthony said he was doing, what we see is a judge very much accepting the strictures of the traditional legal method, but also acknowledging that this runs out, and that value judgments play a role in the judicial development of the law, and to be more transparent about that. This is not revelatory: anyone who has read a High Court judgment and seen how judges can disagree can see that there is often more than one way to resolve a legal issue even if you are an avowed legalist. Something is at work here, and Sir Anthony’s contribution was to advocate for more transparent articulation of why judges made the decisions they do, rather than cloaking them in the technicality of formalism, and masking the true drivers of many decisions. This wasn’t activism in the pejorative sense of unrestrained judicial discretion, this was transparency about the existence and exercise of discretion that had always existed.
Now, Sir Anthony also saw the courts as playing a role in our constitutional system which needed to be aware of the role of the parliament, and the role of the public in constitutional change. So, he argued that constitutional reform, and the need for constitutional amendment, will necessarily be affected by the way the courts approach constitutional interpretation. That is, ‘if courts apply static rather than dynamic principles of interpretation, the case for reform will be so much the stronger.’ On the flip side, in systems such as Australia, where constitutional amendment is now so difficult to achieve, we have not done it successfully since 1977, we have now had 9 of 45 attempts fail, is there a greater role for the Court to approach constitutional interpretation in a way that is more dynamic, to ensure that the Constitution is fit for purpose for a modern society.
That’s of course not to say that the Court should, or would, take unrestrained steps to ‘recognise’ Aboriginal and Torres Strait Islander people in the Constitution, in light of the failed Voice referendum. Although keen High court watchers would note that there has been some, incremental constitutional development in this area both before and after the referendum.
Many of you will remember in 2020, in the Love and Thoms v Commonwealth decision, a majority of the High Court found that Aboriginal and Torres Strait Islander people had a connection and belonging to the land such that could not be constitutionally considered to be ‘aliens’, and therefore subject to deportation under that power. More recently, this year in the Yunupingu case, the High Court accepted that native title rights as recognised in Mabo were capable of attracting the just terms guarantee in the Constitution, giving a level of equal recognition to native title as property.
In summary, I’m not saying that the No vote will result or even should result in the High Court adopting a different, a more dynamic, or a less dynamic, approach to constitutional interpretation. If I was going to predict, I would say that different judges are likely to view the implications of the outcome differently, and we will watch that play in the coming years and decades. Because what I am saying is that these things are all connected. Because the judges on the High Court understand that they exist and exercise their power and decide disputes in the context of the wider constitutional system, where different institutions have a role, they must respect each other’s roles, but they are also aware of their collective role in serving and adapting to Australian society.
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Gabrielle Appleby is the Professorial Research Fellow at the Pro Vice Chanceller (Society) UNSW Law & Justice. She researches and teaches in public law, with her areas of expertise including the role, powers and accountability of the Executive; parliamentary law and practice; the role of government lawyers; and the integrity of the judicial branch.
