What is the "Voice" referendum about?

 As I said late last year I am going to try and give at least some readers who (if only occasionally) read this blog some idea about what the "Voice" referendum is about, the context, the process, the possible implications and more. My (very minimal) qualifications for doing so are an LLB(Hons) from our national university where it was compulsory to study two units of "constitutional" law.

First. I am not trying to tell anyone else how to vote in this referendum. Voting is your private affair. All I am going to try and do is give you some information so that you can, if  you have not already done so, make an informed decision about how you intend to vote.

Second. I do not normally ask people for comments but I would ask if you  have questions you put them in the comments and I will endeavour to answer them. If something is not clear please tell me. I do not want people saying, "But Cat said..." when I have said something different. If you think I am talking down to you then I apologise. I know this blog is read by a great variety of people. Some of you ceased to go to school at age twelve, others of you have doctorates. There are many differences in education between all of us.

Let's first try and answer the question of what "the Constitution" is in this context and how it can be changed. We are talking about the Federal Constitution or the Constitution which concerns the entire country. There are other Constitutions which cover the capacity of states and territories to make laws. If there is any inconsistency or clash between state and territory laws and federal laws then the federal laws automatically override the state and territory laws. (It is important to remember this because it means that federal laws have the capacity to influence the entire country even if they go against the policies of an elected state government.)

The Constitution is the document which gives the government of the day the power to make laws about matters mentioned in the Constitution and thereby run the country. The government cannot make laws about matters which are not mentioned in the Constitution. There have been a great many legal gymnastics performed in order to get around some of the restrictions imposed by the Constitution.  Perhaps one of the most famous of these is what is often referred to as "the Tas dams case" or, more properly,  Commonwealth v Tasmania (1983) 158 CLR 1.  This is almost certainly still the most influential environmental/conservation case to have gone to the High Court. (In it the Commonwealth government took a state government on over building a dam to provide hydro-electric power in an area of great environmental value. It was narrow win (4-3) in the High Court.) What is interesting here however is that the Commonwealth used an unlikely power it had in arguing the case. It used the "external affairs" power. While it is usually seen as a win for the conservationists it was actually a much bigger win for the Federal government because it unexpectedly and dramatically increased the potential for them to make other laws by using that power. The outcome of that case is also important here because it shows that any constitutional power given to the government can have unintended consequences.

Although the founding fathers who wrote the Constitution could not have foreseen the way in which the external affairs powers would later be used they did realise there was a need for precautions. Thus we come to the power to hold a referendum. 

Sec 128 of the Constitution gives parliament the right to hold a referendum. A Bill is first put before parliament and then, between two and six months later, the matter has to be put to voters.  It then has to obtain the approval of a majority of voters AND a majority of states. This is a very high hurdle and only eight out of forty-four referendums have succeeded since 1901. There has been more than one suggestion that the process for change is too difficult. Given the capacity of legal minds to challenge legislation, as seen in the case of the dams in Tasmania, others say Sec 128 works just as intended.

So now the present government is saying they are going to put a Bill before parliament to ask the people to vote on a change to the Constitution.  It is likely that this will get through parliament in the early part of this year. 

What are we likely to be voting on? I'll try and start answering that tomorrow.