Dorante-Day & Anor, In the matter of an application for leave to issue or file

[2023] HCATrans 133

[2023] HCATrans 133

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B53 of 2023

In the matter of -

an application by SIMON CHARLES DORANTE‑DAY & ANOR for leave to issue or file

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 OCTOBER 2023, AT 1.30 PM

Copyright in the High Court of Australia

HER HONOUR:   Pursuant to rules 6.07.3 and 13.03.1 of the High Court Rules 2004 (Cth), I refuse the application filed on 10 October 2023 for leave to issue or file an application for a constitutional or other writ. I publish my reasons, and direct that those reasons be incorporated into the transcript. The order of the Court is:

The ex parte application filed on 10 October 2023 for leave to issue or file an application for a constitutional or other writ be refused.

I publish that order.

On 6 October 2023 the applicants sought to file a document in which orders in the nature of constitutional writs and injunctions were sought. On that day Gageler J directed, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), that the Registrar refuse to issue or file the document without the leave of a Justice first had and obtained. On 10 October 2023 the applicants filed the present application for leave.

The applicants state that they are First Nations persons resident in Queensland.  They seek an order invalidating the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 (Cth) Bill (“the Bill”) as unconstitutional.  They also seek an urgent injunction to prevent the Referendum, to be held on 14 October 2023, from proceeding.

The Bill was passed by both Houses of Parliament on 19 June 2023. Its long title is “A Bill for an Act to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice”. The referendum to be held seeks the answer of the electors to the question of whether a provision to that effect should be added to the Constitution.

The affidavit in support of the application contains references to the background to the Bill, those who put it forward, and discusses what “The Voice” might mean and the effect it might have.  It is evident from the affidavit and the application that the applicants complain, amongst other things, that those indigenous persons who sought this form of constitutional change were not representative of all indigenous persons including the applicants, whose consent was not sought.  They also complain about the prospect that a majority of non‑indigenous persons might decide the outcome of the referendum.

There are three bases in law put for the relief sought. The first is that the Bill, the ensuing legislation and the proposed addition of s 129 to the Constitution breaches the applicants’ and Queensland’s First Nations people’s human rights, most particularly by breaching s 28(3) of the Human Rights Act 2019 (Qld) (“the HRA”). Section 28(3) provides that Aboriginal and Torres Strait Islander peoples have the right not to be subjected to forced assimilation or destruction of their culture.

The second contention is that the Bill and the ensuing legislation exceed the legislative power of the Commonwealth by overriding the power of the State vested in s 107 of the Constitution. Section 107 is a saving provision, which continues the powers of a Parliament of a Colony when it becomes a State unless a power is otherwise dealt with by the Constitution.

The third is that the Bill and the ensuing legislation diminish the rights of First Nations peoples in Queensland and is therefore inconsistent with s 10(1) of the Racial Discrimination Act 1975 (Cth) (“the RDA”). Section 10(1) provides that all persons are to enjoy the same rights and to the same extent as others regardless of their race, colour or national or ethnic origin.

It is difficult to see how any legislation which might follow an affirmative answer to the question put in the Referendum could have the effect of forcing assimilation or adversely affecting the rights of persons in the sense referred to in s 10(1) of the RDA or s 28(3) of the HRA. Reliance on s 107 is misplaced, as is the more general notion of the ensuing legislation having an effect on any Queensland law, including the HRA.

In any event whether any legislation is authorised and what form it might take is a matter of conjecture.  The Bill is the only extant legislation.  It raises the question of constitutional alteration.  It does not itself have any of the legal effects for which the applicants contend.

No basis in law for the orders sought being shown, the document the subject of the application for leave to issue or file would amount to an abuse of process within the meaning of r 6.07.01 of the High Court Rules.

There will be an order that the ex parte application filed on 10 October 2023 for leave to issue or file an application for a constitutional or other writ be refused.

AT 1.30 PM THE MATTER WAS CONCLUDED