Answering a question on the Voice

I saw this question on UC Confessions about the Voice to Parliament and considered that it required a longer answer than the Facebook comment section makes readable.

Here are a couple of questions: If the referendum were to succeed, (a double majority in favour), we should expect the government to do the job and make the necessary changes to the constitution and make the body quickly and properly, right. If the government doesn’t in the timeline they propose, then what? Similarly, if the referendum were to fail, (a majority no vote amongst the Australian voting population, or in the states or both) what is the next step moving forward?

To answer your first question I have two points:

1. Since the alteration itself doesn’t provide a timeline for enactment, and leaves the details to parliament, legally there would be nothing to prevent Parliament from simply not enacting the requisite legislation. There are similar sections, like section 101, which say there “shall” be a body (in that case, the Inter-State Commission) which currently does not exist. You couldn’t go to court demanding the enactment of Voice legislation since there would not be a “‘matter” (in the Chapter III sense) to be tried. That said, it would be politically ridiculous for the government to win a rare constitutional mandate to enact the Voice only to do nothing with it.

2. It would be odd for the government not to draft bills or have drafting instructions ready for such a significant reform if it were to pass – especially since it was an election promise and the government has already endorsed some principles for the design of the Voice.

Regardless of whether they have bills ready or not, the government would seek to consult on an exposure draft of the bill introduced into parliament and the parliament itself would send it into a committee process where further consultation would take place. This would take several months, if not a year or two (noting the next election is due in May 2025).

To answer your second question, if the referendum does not succeed then nothing legally changes. The Constitution remains in the form it has been in since it was last amended in 1977. The political consequences could be devastating. The government would be left unable to enact an election promise. Even if the federal parliament could legally create a Voice without a constitutional amendment (such as via the race power, the incidental powers, or the national government power), the current government would have lost its political mandate to do so. If it decided to make one anyway, it would likely be accused of opposing the will of the electorate.

That said, recent polling has shown that, despite the Voice having become a political football between the two political blocs in parliament, support for the Voice is not tied to support for the government. The failure of the referendum would be a point for the conservative bloc to campaign on, but at the moment declining support for the Voice amendment appears to be having little impact on the vote for the progressive bloc.

Many states are working on voice-like bodies. Victoria and the ACT have somewhat mature elected advisory assemblies for local Indigenous populations, while South Australia recently enacted a Voice to its own parliament. Many states and territories are currently negotiating treaties of some description. The work on these projects likely would not end with a ‘No’ vote, but they would likely face a greater amount of scrutiny than they have to this point.