Lawmaking by a First Peoples’ Representative Body: Delegated Legislation or Incorporation by Reference?
3.6.2025
Introduction
Much of the political momentum surrounding Indigenous rights quickly dissipated following the defeat of the Voice referendum in October 2023. Newly elected governments in the Northern Territory and Queensland abandoned their long-running treaty processes, while the federal government has remained conspicuously silent about a path forward. This is not the whole story, however. In South Australia, the government has maintained its commitment to the State’s First Nations Voice, despite early challenges and an unsuccessful attempt to repeal the legislation and dismantle the institution.
Developments in Victoria have also continued apace. Since November 2024, the First Peoples’ Assembly of Victoria and the State government have engaged in negotiations aimed at reaching a Statewide Treaty. If concluded, it would mark the first formal treaty in Australian history: a watershed moment in the legal relationship between First Peoples and the state. As Patrick Dodson has observed, treaties that give effect to Indigenous self-determination and establish ‘mutually agreed terms for our relationship with the Australian government’, remain part of the nation’s ‘unfinished business’.
A treaty with First Peoples is an agreement between the state and an Indigenous community that seeks to resolve certain claims and provide the community with greater legal autonomy. By defining rights and obligations and addressing both historical and ongoing injustices, a treaty establishes a foundation for future engagement grounded in the principles of self-determination and respect. As the Supreme Court of Canada has observed, treaties between Indigenous peoples and the state are not ordinary contracts or international agreements. Rather, they are ‘fundamental agreements’ that ‘reflect a lasting commitment to maintaining a just relationship’ between First Peoples and the state.
In Victoria, treaty negotiations are expected to consider an expanded role for the First Peoples’ Assembly. This could potentially involve the Assembly evolving into a continuing representative body with authority to make decisions in relation to State programs and services. Drawing on the experience of modern Canadian treaties, the Assembly could also be invested with legislative power in areas central to First Peoples’s identities, such as cultural heritage, and family, health and welfare. Recognising a domain of lawmaking power is consistent with the Treaty Negotiation Framework, which governs the process of negotiations between the State and the Assembly. The Framework confirms that the negotiations and any treaty must ‘provide a recognition space for Aboriginal Law, Lore and Cultural Authority’.
Scholars have given only limited attention to how a First Peoples’ representative body might be invested with legislative authority and how such authority could be given legal effect. In this post, we consider two potential legal mechanisms: delegated legislation and incorporation by reference. While both approaches would require the Victorian Parliament to enact enabling legislation to facilitate the exercise of legislative power by a First Peoples’ representative body, we suggest that incorporation by reference may be the more appropriate model, as it more clearly recognises the distinctiveness of this form of lawmaking.
Constitutional Considerations
Constitutionally, a legislature may delegate its legislative power to an external body, so long as it does not relinquish its legislative authority. The overarching constitutional constraint is that the legislature must retain the power to amend or repeal the delegation. It cannot confer an irrevocable or exclusive power to legislate that would amount to an abdication of its constitutional role as the lawmaker-in-chief. Within this constraint, there is no legal impediment to the Victorian Parliament empowering a First Peoples’ representative body to make laws in specified areas.
Option 1: Delegated Legislation
As one of us has recently suggested, delegated legislation offers a viable and straightforward means of giving effect to laws made by a First Peoples’ representative body. This model benefits from a well-established legal framework, which in Victoria is set out in the Subordinate Legislation Act 1994 (Vic). The Act establishes the process for making both ‘legislative instruments’ and ‘statutory rules’, including requirements for tabling, publication, parliamentary scrutiny and potential disallowance. Victoria’s Parliament has delegated legislative authority to a range of bodies that make laws under this framework. For example, under section 52 of the Libraries Act 1988 (Vic), the Library Board of Victoria is empowered to make by-laws relating to library materials, buildings and land under its control, including the ability to prescribe penalties of up to two penalty units.
While delegated legislation is a practical and familiar model for facilitating the lawmaking function of a First Peoples’ representative body, it may be ill-suited to the nature of a treaty relationship between Indigenous communities and the state. Although such treaties are not international agreements, they recognise First Peoples’ inherent rights as pre-contact, self-governing communities, a status that is difficult to reconcile with a lawmaking framework principally designed for subordinate State agencies. Relying on a model of delegated legislation may therefore risk diminishing the status and significance of a First Peoples’ representative body’s legislative power.
Option 2: Incorporation by Reference
A second option is ‘incorporation by reference’, a long-standing drafting technique. Incorporation by reference is used to give legal effect to content found in an instrument or document that does not otherwise carry the force of law, typically originating from a different jurisdiction or external body. Rather than reproducing the content verbatim, the legislature may enact a provision that incorporates it by naming the instrument or document and giving its content the force of law as if it had been included word-for-word. In Australia, provisions incorporating content by reference typically appear in schedules to Acts or in delegated legislation, enabling references to external instruments and documents to be updated relatively easily.
At the Commonwealth level, section 14 of the Legislation Act 2003 (Cth) sets out default rules for incorporating content by reference in legislative instruments. For example, section 3.5 of the Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2024 (Cth) defines an ‘appropriate exposure standard’ as being ‘an airborne concentration for a substance as set out in the Workplace exposure standards for airborne contaminants published by Safe Work Australia on 18 January 2024, as in force from time to time’. The effect of this provision is that Safe Work standards form part of federal law. Similarly, in Victoria, various Acts and statutory rules have been drafted to incorporate content by reference. For example, section 76 of the Essential Services Commission Act 2001 (Vic) incorporates codes of practice issued by the Essential Services Commission, including any subsequent amendments.
There are, however, important rule of law considerations associated with the use of incorporation by reference. These primarily concern the clarity and public accessibility of the content intended to be incorporated. At the federal level, the Senate Standing Committee for the Scrutiny of Delegated Legislation applies scrutiny principles to legislative instruments, including accessibility of the law under Senate Standing Order 23(3)(f). In its guidelines, the Committee adopts a broad view of incorporated content, including documents ‘necessary to interpret, apply or otherwise use that instrument’. The guidelines set out the Committee’s expectations for legislative instruments that incorporate content, including clear identification of the incorporated document, whether the content is freely available to the public and whether it is incorporated at a fixed point in time or as amended from time-to-time. Academics have raised similar concerns with the technique. John Mark Keyes, for instance, acknowledges the benefits of incorporation but highlights the risks of legal fragmentation and reduced accessibility.
Notably, Andrew Edgar has observed that incorporation by reference is the Commonwealth’s preferred approach to adopting international laws or standards made by international organisations. This approach may therefore offer a better conceptual fit in a First Peoples treaty context, where the lawmaking authority resides outside traditional domestic sources of legislation. Incorporating laws made by a First Peoples’ representative body by reference may provide a more respectful means of giving them legal effect. It would also reinforce the distinctiveness of lawmaking by the representative body and affirm its unique status within the State’s legal system.
Lessons from the Canadian Experience
Incorporation by reference is a well-established legislative technique in Canada. Similar to section 14 of the Legislation Act 2003 (Cth), section 18.1 of the Statutory Instruments Act (Canada) sets out default rules for incorporating content into federal regulations. However, the Canadian provisions go further than their Australian federal counterparts by requiring that incorporated content be ‘accessible’. Notably, the Act provides that a person cannot be convicted of an offence or subjected to an administrative sanction for breaching incorporated content that was not accessible at the relevant time.
The meaning of ‘accessible’ has been questioned by Canada’s Standing Joint Committee for the Scrutiny of Regulations in relation to official language compliance, the cost of access and the absence of a central repository for tracking amendments. Notably, some Canadian regulators, such as the Canadian Food Inspection Agency, Health Canada and the Treasury Board, have adopted policies to guide their use of incorporation by reference. These policies set out good lawmaking practices to support the clarity and public accessibility of incorporated content.
One of the most significant uses of incorporation by reference in Canada appears in section 88 of the Indian Act (Canada). Because the Canadian Constitution grants exclusive legislative authority over ‘Indians, and Lands Reserved for the Indians’ to the federal Parliament, section 88 provides that ‘all laws of general application from time to time in force’ in a province apply to status Indians (persons having Indigenous ancestry who are registered under the Indian Act), subject to specified limitations and exceptions. The Supreme Court of Canada has held that the purpose of s 88 is to give effect to provincial laws that would otherwise be constitutionally inapplicable to status Indians by applying them as federal laws through incorporation.
Most relevant to the current Victorian treaty context is An Act respecting First Nations, Inuit and Métis Children, Youth and Families (Canada), enacted in 2019. The Act establishes national standards for child and family services in Indigenous communities and recognises the ‘inherent right of self-government’ of First Peoples, including their legislative authority in relation to these services. Where an Indigenous group seeks to exercise this authority, it must give notice to the federal minister and relevant provincial governments. Laws made by an ‘Indigenous governing body’ are incorporated by reference and given ‘the force of law as federal law’. The Act further provides that such laws take precedence over conflicting federal laws – except for certain provisions of the Act itself and the Canadian Human Rights Act – and that they prevail over provincial laws. The Act also includes publication requirements for laws made by Indigenous governing bodies.
Last year, the Supreme Court of Canada unanimously upheld the constitutionality of the Act. The Court described it as ‘innovative legislation’ intended to give Indigenous communities ‘effective control over their children’s welfare’. Drawing on the work of Naiomi Metallic, the Court characterised the Act as a form of ‘legislative reconciliation’ premised on the inherent rights of First Peoples. It emphasised that the Act ‘does not purport to be the source of the rights in question’ but instead affirms them as part of a ‘renewed nation-to-nation relationship’. In doing so, it ‘represents one more step toward reconciliation’. While the Court acknowledged that questions may arise regarding the jurisdictional scope of Indigenous communities or the legal recognition of governing bodies, such uncertainties did not undermine the constitutionality of the Act as a whole.
The Court also confirmed the validity of what it called ‘anticipatory incorporation by reference’ – that is, the Act’s incorporation of laws, including future amendments made by an Indigenous governing body. The Court held that there was ‘no doubt about the constitutionality of the drafting technique of incorporation by reference’ and that it ‘may also be anticipatory’. Incorporation by reference was not, however, without limits. The Court explained that Parliament could not abdicate its legislative role by allowing another body ‘to enact general, or generally laws’ on its behalf. Parliament must also have the necessary legislative jurisdiction to referentially incorporate the relevant laws. In the Australian context, for instance, this means that a Victorian treaty could not referentially incorporate laws relating to customs and excise, as this is exclusively a Commonwealth responsibility.
Potential Application in Victoria
Several issues will need to be considered if incorporation by reference is adopted as part of a Statewide Treaty. The first is whether a static or anticipatory model should be adopted. We suggest there are strong justifications in favour of an anticipatory approach. A Statewide Treaty is intended to recognise the lawmaking authority of First Peoples in defined areas. These laws are likely to be iterative and evolve over time in response to changing needs and circumstances. The First Peoples’ representative body will therefore need to update its laws from time-to-time, and those laws should be given legal effect as they are made. By contrast, a static model would freeze the body’s lawmaking power at a fixed point in time.
There are other advantages to adopting an anticipatory model of incorporation. A static approach would be comparatively cumbersome, requiring the Victorian Parliament or the Executive Government to frequently amend legislation or legislative instruments to incorporate new laws made by the First Peoples’ representative body. The anticipatory model avoids the need for this continual updating. It also respects First Peoples’ agency and autonomy, supporting the development of relationships grounded in mutual trust and respect – the very principles on which a treaty relationship is based.
The second issue concerns potential rule of law challenges. In a series of decisions beginning with the Australian Communist Party Case, and including more recent judgments such as Plaintiff S157/2002 v Commonwealth of Australia and MZAPC v Minister for Immigration and Border Protection, the High Court has affirmed that the Australian Constitution ‘is framed upon the assumption of the rule of law’. While scholars and jurists have articulated various conceptions of the rule of law, it is widely accepted that laws must be known and accessible. A model of anticipatory incorporation could challenge these principles as it involves giving legal effect to content that may not be widely known or readily accessible at the time it becomes law.
The accessibility challenge can be effectively managed within a model of anticipatory incorporation. Enabling legislation providing for the First Peoples’ representative body’s lawmaking powers could require that its laws be laid before each House of Parliament and published in a freely accessible online repository, such as the Victorian Legislation website. Existing safeguards under Victoria’s lawmaking framework could be adapted to promote accessibility. For example, section 32 of the Interpretation of Legislation Act 1984 (Vic) imposes accessibility requirements for content incorporated by reference in delegated legislation. Further, like the Canadian example, section 20 of the Subordinate Legislation Act 1994 (Vic) provides that a person cannot be convicted, prejudicially affected or made subject to liability by a statutory rule that was not accessible at the relevant time. As noted earlier, the Act also imposes accessibility requirements for delegated legislation. Drawing on these provisions, a mechanism should be included in the enabling legislation for the First Peoples’ representative body to ensure that all Victorians can freely access its laws and to safeguard against the enforcement of any law that is not accessible.
The third issue centres on democratic concerns. Incorporation by reference may be seen as controversial because it can give the appearance that Parliament has abdicated its legislative responsibility by automatically adopting, without public debate, laws made by another body. In the context of a First Peoples’ representative body, however, this concern is misplaced. To incorporate the laws of the representative body, enabling legislation would need to be enacted by the Victorian Parliament through the ordinary legislative process, which involves parliamentary scrutiny and public debate. That legislation would delineate the lawmaking powers of the First Peoples’ representative body by limiting them to specified subject matters and defining their territorial scope. Such laws would be subject to judicial review to ensure they remain within these defined parameters. Further, Parliament would retain its constitutional authority to amend or repeal the enabling legislation, thereby preserving democratic oversight and mitigating concerns about any perceived abdication of its legislative function.
Other measures to promote democratic oversight should also be considered. In Australia, various forms of scrutiny and potential disallowance apply to delegated legislation. Such laws are typically scrutinised by parliamentary committees and may be disallowed by a resolution of a single House of Parliament. However, in some cases, oversight mechanisms are tailored to the unique nature of the lawmaking body. For example, in Victoria, the Local Government Act 2020 (Vic) authorises local councils to make ‘local laws’ that relate to their functions or powers. While these laws are not subject to systematic parliamentary scrutiny by Victoria’s Scrutiny of Acts and Regulations Committee, as is generally the case for other delegated laws, councils are required to comply with a bespoke lawmaking process that includes community engagement. In addition, the Governor in Council, acting on the recommendation of the Minister for Local Government, may revoke a local law in whole or in part.
The lawmaking process for local councils, as elected bodies representing their communities, may offer a useful starting point for considering the scrutiny and potential disallowance of laws made by a First Peoples’ representative body. Nevertheless, important distinctions should be recognised. A treaty relationship reflects the political authority of a community that has cared for Country for tens of thousands of years. While neither a treaty nor local government is constitutionally protected, the unique status of a treaty relationship suggests that the threshold for disallowance of laws made by the First Peoples’ representative body should be high. Any such powers should be exercised with restraint. It may be appropriate, for example, to require the relevant Minister to table reasons in Parliament and to first observe a period of notice and consultation with the First Peoples’ representative body. These procedures would create space for the treaty partners to engage, resolve concerns, and maintain a constructive relationship, rather than allowing one party to act unilaterally and without warning – an approach that risks undermining the integrity of the treaty relationship.
Conclusion
It has been reported that the defeat of the Voice referendum led many Indigenous Australians to question whether reconciliation is now out of reach. A Statewide Treaty that establishes a First Peoples’ representative body with lawmaking authority may serve to alleviate these concerns. As expressed in the words of the Uluru Statement from the Heart, such a development would demonstrate the willingness of non-Indigenous Australians to ‘walk with’ First Peoples ‘in a movement of the Australian people for a better future’.
Two important limitations, however, must be acknowledged. First, while we have argued that the model of incorporation by reference may better respect the inherent rights, agency and autonomy of First Peoples, it remains a form of legislative delegation. Second, in the absence of constitutional reform, any incorporation of First Peoples’ laws into Victorian law would remain vulnerable to repeal through the ordinary legislative process. Even so, if a Statewide Treaty garners broad public support and is seen as a foundation for a relationship based on mutual trust and respect, it may prove more durable than its formal legal status alone might suggest, serving as a powerful new form of legislative reconciliation in Australia.
Harry Hobbs is an Associate Professor at the UNSW Faculty of Law and Justice. This post was written as part of an Australian Research Council grant entitled ‘A Made in Australia Model for Indigenous-State Treaty-Making’ (DE240100454).
Lorne Neudorf is Professor and Dean at La Trobe Law School.
Suggested citation: Harry Hobbs and Lorne Neudorf, ‘Lawmaking by a First Peoples’ Representative Body: Delegated Legislation or Incorporation by Reference?’ (3 June 2025) <https://www.auspublaw.org/blog/2025/6/lawmaking-by-a-first-peoples-representative-body-delegated-legislation-or-incorporation-by-reference>