Australians have had a look at Labor’s proposal to amend the Constitution to create an Indigenous ‘Voice to Parliament’, but many questions about the legal consequences remain.

Meanwhile, the recent partisan withdrawal of the Commonwealth’s High Court appeal in Montgomery deserves greater attention. It provides an insight into the way the courts could be used to radically reshape our system of government if the ‘Voice’ proposal succeeds.

Members of The Samuel Griffith Society may remember my warning in the wake of May’s federal election that Labor might withdraw Montgomery – the Morrison government’s appeal against the controversial ruling in Love and Thoms that the Commonwealth cannot deport certain foreign criminals, under any circumstance, due to their Aboriginal status.

Most Australians would be unaware of that 2020 decision which invented an unprecedented and highly contentious concept of nationality detached from birth or naturalisation and instead founded in ‘spiritual and metaphysical connections’ and the notion that ‘Indigenous people … possess certain rights’ that non-Indigenous people cannot.

The High Court has never been bound by its past decisions and should not be discouraged from reconsidering them when it deems appropriate.

The arguments for overturning Love are compelling and the facts in Montgomery would shock most people. Shayne Montgomery is a New Zealand citizen with no biological Aboriginal ancestry who has been convicted of non-violent aggravated burglary but allowed to remain in Australia because he was ‘adopted’ by the Mununjali clan. As acknowledged by even the ABC, for Love to stand effectively puts people like Montgomery ‘beyond the reach of [our] immigration laws, even if they were born overseas and [don’t] have Australian citizenship’.

Putting the merits of the appeal to one side, it’s even more outrageous that Labor would withdraw Montgomery given that the High Court determined to hear the appeal, that a hearing was held in April, and that the Court’s decision must have been imminent. That the Albanese government withdrew at the eleventh hour to prevent the High Court from overturning Love shows that it is all too willing to use the courts to achieve its own political objectives and to fundamentally rewrite our Constitution.

This brings me to the ‘Voice’. The Prime Minister told Insiders that he has no interest in going ‘down the cul-de-sac of getting into every detail’ about the proposed ‘Voice’ because ‘that is not a recipe for success’. The obvious question then is: What exactly about the details of the ‘Voice’ would harm its chances of success at a referendum if they became public?

The Prime Minister is also wrong in assuming that obscuring the details of the ‘Voice’ proposal is the best pathway to its adoption. Instead, it appears much more likely that any failure on the part of proponents of the ‘Voice’ to be fully open and transparent with the Australian people is the real recipe for failure.

It’s clear that ‘Voice’ advocates have been listening to the concerns that have already been expressed about the potential legal uncertainty that any change to our Constitution could create. It’s particularly telling that proponents have acknowledged the ‘legal quagmire’ that a constitutional requirement that the ‘Voice’ be consulted on proposed laws could create.

But there’s no guarantee that even the watered-down proposal floated by the Prime Minister at the Garma Festival would avoid this issue. Just look at what the High Court was able to read into the terse text of the ‘aliens power’ provision in the Love case. Simply omitting a consultation requirement from the text of any ‘Voice’ amendment would not guarantee that the same would not occur under an activist High Court in the future.

If you needed any more proof of the potential lawfare that could ensue in the wake of the adoption of Labor’s ‘Voice’ proposal, we also saw the ACT taken to court by Indigenous activists for ‘failing to recognise them as traditional owners’. As Melbourne Law School Professor Jeremy Gans has pointed out, although the Prime Minister’s latest proposed wording might avoid litigation about the meaning of the word ‘consult’, it could still create several different possible grounds for judicial review of ministerial decisions.

Clearly, further public discussion and debate could help further refine the current ‘Voice’ proposal by ventilating these (and other) potential legal issues and unintended consequences.

My challenge to the Prime Minister is this: don’t rush the debate, commit to properly funding both sides of the argument, and ensure that there’s a real opportunity for rigorous scrutiny of any proposal before it’s put to the people.

If Labor rushes the referendum process, it is almost certain that whatever proposal is put to a vote will face greater opposition and increased prospects of failure.