The Voice, The Constitution and The Referendum.

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On the 14th of October 2023, the Australian people will head to their local public schools, community halls and voting places, grab a sausage sizzle or a baked good and write “yes” or “no” to a key question. 

The ‘Voice’ has been front page news for the last 12 months and the topic of many BBQ conversations. I have noticed that there are many opinions flying around but there is also a lot of confusion as to what a constitution is, what a referendum is, what the Voice referendum will actually do and why we need it. 

The purpose of this piece is to explain the process without the legalese, opinion or bias. Wish me luck! 

What is the Constitution?

The Constitution is a document that sets out the basic rules for the Australian Government and is the fundamental law of Australia. Think about it as the birth certificate of the Australian nation. 

It came into effect on 1 January 1901 and binds everyone in Australia including the Federal Government and the State Governments. No law or rule in Australia can be contrary to the Constitution and any change to the Constitution cannot be made without the approval of the Australian people. 

The Constitution does some key things: 

  1. Establishes a government structure.  
  2. Separates the key powers of Parliament (the people we vote in), the Executive (public servants) and the Judiciary (Judges). 
  3. Details the rules around finance and trade. 
  4. Outlines the States’ rights and the creation of new states (looking at you New Zealand); and 
  5. Explains how to change it. 

At its heart, the Constitution is a simple document consisting of 128 rules. It is actually fairly easy to read and worth a read when you have some downtime (or can’t sleep).

The key aspect is that the Constitution is “for the Australian people”. Any changes to the Constitution must be approved by the Australian people. So this begs the question, how do we do this? Enter a referendum. 

What is a Referendum?

A Referendum is when every Australian is able to vote and is asked to answer a question or a series of questions. 

It’s like putting a poll up in the family whatsapp chat group about where to go for holidays. Everyone has a chance to vote and everyone will be bound by the majority decision whether you voted for Bali or Mt Isa. 

The key for a referendum is that they are tricky! The Constitution details how the votes in a referendum will work. Simply put: 

  1. Both Houses of Parliament must pass the proposed law. If they don’t, the Governor General can step in. 
  2. The vote is then put to the people eligible to vote. The people’s vote! 

A vote is successful if a majority of people in a majority of states and territories vote in favour of the proposal. 

Eg. 51% or more of all Australians eligible to vote need to vote for the change AND 51% of all states and territories need to vote in favour of the change. 

The quirk is that it’s a double majority vote: people and states. This is because Australia is a federation which is a collection of States so any changes need people and state approval. 

Interestingly if you are in prison on a full time term which is more than 3 years you are not eligible to vote. So no prison sausage sizzles. 

What is the Voice? 

“The Voice” is the shorthand for the Aboriginal and Torres Strait Islander Voice. 

The Voice to Parliament will be a permanent body to make representations to the Parliament and the Executive Government on legislation and policy of significance to Aboriginal and Torres Strait Islander peoples.

The concept of the Voice originated from the Uluru Statement in 2017. The Uluru Statement was a collective statement agreed upon as a result of a number of Regional Dialogues involving more than 1200 Aboriginal and Torres Strait Islander people from across the country.

You can find a copy of the Uluru Statement Here.

The upcoming referendum will ask the Australian people whether the Voice should be in the Constitution. The exact question that will be asked is: 

“A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.

Do you approve this proposed alteration?”

So what is the proposed alteration?

In order to vote yes or no, you really need to know what the alteration is that you are being asked to approve. 

The alteration is to add another chapter and clause to the constitution at 129. The chapter and clause would be: 

“Chapter IX Recognition of Aboriginal and Torres Strait Islander Peoples

129 Aboriginal and Torres Strait Islander Voice

In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:

  • there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
  • the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;
  • the Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.”

There are a couple of key things to note. 

  1. A body is created and called the Voice. 
  2. The Voice may make representations. 
  3. The representations will be to the Parliament and to the Executive. 
  4. The representations will be on matters relating to Aboriginal and Torres Strait Islander issues. 
  5. The Parliament will have powers to make laws with respect to the Voice including the Voice’s composition, functions, powers and procedures. 
  6. The Voice will come under the Parliament’s rule and authority. 
  7. The Voice does not have veto power. 

Simply put, the amendment to the Constitution will create a body of Aboriginal and Torres Strait Islander people which will be called “The Voice”. This will be recognised within the Australian Constitution. This Voice will make suggestions to the government. The government may or may not listen to their suggestions. The government will have powers to make laws with respect to the Voice. 

 

The Constitutional Expert Group put together an advice. It is a simple advice but really interesting. It can be found here

Summary 

On 14 October 2023 the Australian people will be asked whether they want to alter the constitution: yes or no.

The alteration creates a Body of Aboriginal and Torres Strait Islander people called the Voice. This Voice will make suggestions to the Government. The Government may or may not listen to their suggestions but is not bound by it. The Voice will be recognised in the Australian Constitution and the Government will have powers to make laws in relation to the Voice. 

My Thoughts 

Irrespective of whether you vote yes or no, it is critical that we do not forget about the privilege it is to freely vote in a democratic election. There are many people and nations around the world that would literally die to have this right. Let alone do it in thongs, sausage sizzle in hand and a dog by your side. 

Voting is a right that we should cherish and protect. It is a beautiful thing and something I am proud of. 

Lastly, no matter the outcome, let’s respect each other. We don’t need to agree with people’s views but we must respect their right to have them. Many a life has been lost for our right to vote and respectfully disagree.  

Below is an extract from “The Landing” by George Street written between 1914 and 1919. A timely reminder.

 

Source link: https://www.franklaw.com.au/blog/tldr-the-voice-the-constitution-and-the-referendum by jfrank@franklegal.com.au (James Frank) at www.franklaw.com.au