High Court of Australia did not rule Indigenous rights referendum 'unconstitutional'

"High Court victory!! The 2023 Referendum is unconstitutional," says a post on September 5 by William Bay -- who goes by Billy Bay on Facebook -- a prominent anti-vaccine protester whose medical licence was suspended for reported misconduct.

In one comment, he claims: "Once the constitutionality of the law underpinning the Referendum is/was challenged it needed to be affirmed: by the High Court declining to rule we win by default."

In another comment he shares a link to a website purportedly containing his case and the court ruling.

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A screenshot of the misleading claim, captured on September 19.

Australia will hold a historic Indigenous rights referendum on October 14, setting up a defining moment for the nation's relationship with Aboriginal minorities.

If passed, Indigenous Australians -- whose ancestors have lived on the continent for at least 60,000 years -- would be recognised in the constitution for the first time.

They would also gain a constitutionally enshrined right to be consulted on laws that impact their communities, the so-called "Voice to Parliament".

But anti-Voice campaigners have spread misinformation about the vote, including baseless claims it will allow Indigenous groups to forcibly seize private property and strip landowners of their rights.

'Valid' referendum

Bay repeated his claim in an online show called Cafe Locked Out on September 6. Facebook posts sharing his false assertion have also been posted here, here and here.

However, a spokesperson for the High Court of Australia told AFP on September 18: "It is not correct that the High Court has made any ruling on the constitutional validity or otherwise of the forthcoming referendum."

A keyword search found the actual High Court decision on Bay's case here on the Australasian Legal Information Institute database (archived link).

The document says Bay sought to challenge the constitutionality of the vote, citing purported flaws in the wording on ballot papers.

But the court refused his filing. Its decision reads: "Leave to issue or file should be refused where the document would amount to an abuse of process. The latter term encompasses proceedings which are foredoomed to fail, as the proposed proceedings are."

This is a "standard court procedure" for cases considered to be completely without merit, Scott Stephenson, University of Melbourne law professor told AFP on September 20.

Regarding Bay's assertion that the court ruling means the referendum is unconstitutional, Stephenson said: "A law is presumed to be constitutionally valid unless it is declared by a court to be invalid."

"In other words, as no court has declared the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 to be constitutionally invalid, we proceed on the assumption that it is valid."