Fraud: intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. 

There is intentional deception to make people believe that the Voice referendum is for a modification to the Commonwealth of Australia Constitution Act – when it is not. But the term “fraud” has a very narrow meaning in Treaty law, so despite this being fraud in a general sense – this fraud will be legally valid.

The “Voice” referendum is no normal referendum. It may not involve the Australian Constitution Act at all.

The first recommendation from the Final Report;

That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament.

Referendum Council Final Report

I going to break down some points to show why this referendum is not normal.

Point 1: There are two different possible meanings of the term “Australian Constitution”

a) “Australian Constitution” can refer to the Commonwealth of Australia Constitution Act. The written constitution (the document). Prominently written on the title page of this document is “AN ACT to constitute the Commonwealth of Australia”.

b) “Australian Constitution” can also refer to the constitution/components of Australia – the sum of laws and institutions that make up that entity. Australia at it’s most basic, is a constituency of colonies/States. It is that which the Constitution Act (document) has enacted. This context of the word is the same as in “the Constitution of New Zealand” – because New Zealand does not have a written codified constitution.

Which of these two possible meanings is meant by the Referendum Council? Most would assume it is the first meaning, but I think it is the second meaning. In the next points I will show some reasons why it is ambiguous.

Point 2: The term “Referendum” is not set in stone.

The Referendum Council recommends that a referendum be held. A referendum is commonly understood to mean a nation-wide vote to make a modification to the text of the Constitution Act.

But the term referendum can, and has been used for a nation-wide vote that does not modify the constitution act. The conscription referendums of 1916 and 1917 were called referendums – but did not involve proposals to change the constitution. So just because it is called a referendum does not automatically mean that the vote is to change the Commonwealth of Australia Constitution Act.

In section 128 of the Constitution Act (full text at end of this post), it says for the Constitution Act to be changed a vote must be put to the electors – but the word referendum is not used. The term referendum is legislated and defined in the Referendum (Machinery Provisions) Act 1984. As the term referendum is legislated – it can be changed, re-interpreted, expanded or shrunk by the two-party colonial elite and their courts.

Point 3: Application of The Referendum (Machinery Provisions) Act 1984 is not exclusive to Section 128 referendums

The Referendum (Machinery Provisions) Act 1984 (Referendum Machinery Act) was used in the same-sex marriage plebiscite. The plebiscite question was not a ‘constitutional amendment’ (by either of the meanings in point 1 of this blog), nor was it ever referred to as a referendum – yet it utilised the Referendum Machinery Act nevertheless.

The Bill is unusual in that it is not a stand-alone piece of legislation but, rather, incorporates a number of provisions from other legislation. In particular the Bill would apply provisions from the Referendum (Machinery Provisions) Act 1984. The effect of this is that the legal framework for a referendum would apply to the plebiscite, including: the ‘one vote per person’ rule; formality rules for ballot-papers; provision for the appointment of scrutineers; and compulsory voting. This would mean that the plebiscite would be conducted in much the same way as a referendum.

https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1617a/17bd022

Timeline:

• Same-sex marriage bill introduced to Parliament – 14 September 2016
• Uluru Statement convention: 26 May 2017
• Same-sex marriage plebiscite mail vote – 12 September and 7 November 2017

Plebiscites are rare, the last one was in 1977. It is not often that the political elite ask the people directly – they did not even bother polling the people about the Australia Acts in 1986. Note how the timing of the Uluru Statement convention was sandwiched time-wise with this rare plebiscite.

An important observation here – at the time of the First Nations National Constitutional Convention at Yulara- the delegates at the convention and their advisors would have been fully aware of the same-sex marriage plebiscite. They should have also been aware that just because a national vote utilises the Referendum Machinery Act, does not mean that the vote is also utilising section 128 of the Constitution Act.

I suspect the same-sex marriage plebiscite was a “dry run” to test using the Referendum Machinery Act on a non-section 128 constitutional amendment, to iron-out any wrinkles and smooth the way forward. Like the same-sex marriage plebiscite, the Voice referendum will also not be a constitutional amendment under section 128. (The Voice referendum will be a constitutional reenactment partly using section 52(xxxviii).)

The timing of this “dry run” – running concurrent with the Referendum Council work allowed a two-way feedback. i.e.- it allowed time for both the Referendum Council process and the same-sex marriage plebiscite process to come to a consistent position, and allows adjustments on either side. If they ran the same-sex marriage plebiscite to completion before the Referendum Council started their work – that would limit flexibility on the same-sex marriage plebiscite side.

Fact is – since both the historical conscription referendums and the same-sex marriage plebiscite – neither the use of the term ‘referendum’, nor the utilisation of the Referendum Machinery Act are exclusive to a section 128 change to the Constitution Act. The technical advisors at the Uluru dialogues should have been aware of these facts and taken them into consideration when drawing up the proposal.

Point 4 – The current definition of a ‘referendum’ in Australian law has room for interpretation

Referendum is defined in The Referendum (Machinery Provisions) Act 1984 –

referendum means the submission to the electors of a proposed law for the alteration of the Constitution

Note – this is about alteration of the Constitution. It does not say – alteration of the ‘Commonwealth of Australian Constitution Act’ , nor does the act itself make any reference to section 128 or to Commonwealth of Australia Constitution Act.

Going back to point 1 in this blog post – there are two possible meaning for this word constitution. If the meaning in the Referendum Machinery Act is interpreted (expanded) to include both of these possible meanings, then the Referendum Machinery Act should also apply to changes to the ‘make-up’/composition of Australia – even if the changes do not involve a modification under section 128 of the Commonwealth of Australia Constitution Act.

If the Voice is an amendment to the Australian Constitution (the composition of Australia, but not the document) – under an expanded interpretation the Voice referendum should use the Referendum Machinery Act in full. The consequence of this is it will look identical to a section 128 referendum, even if though is not. Most people will probably falsely believe that it is a s128 referendum because they will watch it go through all the usual expected motions of a s128 referendum (writs, ballot box rules, scrutineers etc.).

It is the perfect masquerade – a constitutional reenactment dressed up as a section 128 referendum.

Point 5 – The Referendum Council Final Report DOES NOT request an amendment to the Commonwealth of Australia Constitution Act

Lawyers are attention-to-detail types. It’s hard to fathom that teams of technical advisors and expert lawyers would have carelessly missed this crucial point. The Referendum Council Final Report requests a provision in the “Australian Constitution”. It does not request an amendment to the Commonwealth of Australia Constitution Act, nor make it unambiguous that this is the intention.

In previous iterations of constitutional recognition – it was always clear that the Constitution Act was meant – either by referring to specific parts of the Act, referring to numbered sections of the Act, or spelling out the name of the Act. This is not the case for the Uluru Statement proposal. If you don’t believe me – read the Referendum Council Final Report carefully – there is nothing there that makes it clear that a modification to the Constitution Act is intended. I’m happy to be proven wrong – leave a comment if you find something.

Constitutional lawyer Megan Davis sat on the Referendum Council. Previous processes she worked on had offered suggested draft wording and section numbering for constitutional amendments. She is a constitutional lawyer – qualified and capable. But this time around there has been no draft amendment wording provided. Why not?

Where is the draft wording?

There can’t be draft wording when it is not a proposed amendment to the Constitution Act. This is why there is no Referendum Council recommendation along the lines of “insert a new section x in the constitution”. They are not asking for modification to the Constitution Act. They are asking for a modification to the constitution – the make-up of Australia via the federalism of a new non-territorial Aboriginal State.

Appendix: Australian Constitution Act 1901 – section 128.

128 Mode of altering the Constitution

This Constitution shall not be altered except in the following manner:

The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.
But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives.

When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails.

And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen‘s assent.

No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.
In this section, Territory means any territory referred to in section one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives.

Commonwealth of Australia Constitution Act

Title image by Gerd Altmann from Pixabay