I seldom write purely political pieces. I'm averse to walking into the ring and picking a fight with anyone. And honestly I find not-particularly-political writing on other topics (such as history and tech) to be more fun. Nor do I consider myself to be all that passionate about indigenous affairs – at least, not compared with other progressive causes such as the environment or refugees (maybe because I'm a racist privileged white guy myself!). However, with only five days to go until Australia votes (and with the forecast for said vote looking quite dismal), I thought I'd share my two cents on what, in my humble opinion, the Voice is all about.

I don't know about my fellow Yes advocates, but – call me cynical if you will – personally I have zero expectations of the plight of indigenous Australians actually improving, should the Voice be established. This is not about closing the gap. There are massive issues affecting Aborigines and Torres Strait Islanders, those issues have festered for a long time, and there's no silver bullet – no establishing of yet another advisory body, no throwing around of yet more money – that will magically or instantly change that. I hope that the Voice does make an inkling of a difference on the ground, but I'd say it'll be an inkling at best.

So then, what is this referendum about? It's about recognising indigenous Australians in the Constitution for the first time ever! (First-ever not racist mention, at least.) It's about adding something to the Constitution that's more than a purely symbolic gesture. It's about doing what indigenous Australians have asked for (yes, read the facts, they have asked for it!). It's about not having yet another decade or three of absolutely no progress being made towards reconciliation. And it's about Australia not being an embarassment to the world (in yet another way).

I'm not going to bother to regurgitate all the assertions of the Yes campaign, nor to try to refute all the vitriol of the No campaign, in this here humble piece (including, among the countless other bits of misinformation, the ridiculous claim that "the Voice is racist"). I just have this simple argument to put to y'all.

A vote for No is a vote for nothing. The Voice is something. It's not something perfect, but it's something, and it's an appropriate something for Australia in 2023, and it's better than nothing. And rather than being afraid of that modest little something (and expressing your fear by way of hostility), the only thing you should actually be afraid of – sure as hell the only thing I'm afraid of – is the shame and disgrace of doing more nothing.

This article is my quick take, regarding the current status of the federal-ness of the EU. Just a simple layman's opinion, on what is of course quite a complex question. Perhaps not an expert analysis; but, hopefully, a simpler and more concise run-down than experts elsewhere have provided.

EU as a federation – yes or no?

(Image courtesy of Probert Encyclopaedia).

Yes:

• Free trade within the Union, no customs tariffs within the Union
• Unified representation in the WTO
• Unified environmental protection law (and enforcement of such law)

No:

• Single currency (currently only uniform within the Eurozone, of which several EU member states are not a part)
• Removal of border controls (some borders still exist, most notably between UK / Ireland and the rest of Europe)
• Central bank (the ECB only applies to the Eurozone, not the whole EU; the ECB is less powerful than other central banks around the world, as member states still maintain their own individual central banks)
• Integrated legislative system (European Union law still based largely on treaties rather than statutes / precedents; most EU law applies only indirectly on member states; almost no European Union criminal law)
• Federal constitution (came close, but was ultimately rejected; current closest entity is the Treaty of Lisbon)
• Federal law enforcement (Europol has no executive powers, and is not a federal police force; the police forces and other law-enforcement bodies of each member state still maintain full responsibility and full jurisdiction)
• Integrated judicial system (European Court of Justice only has jurisdiction over EU law, has neither direct nor appellate jurisdiction over the laws of member states; as such, the ECJ is not a federal supreme / high court)
• Single nationality (each member state still issues its own passports, albeit with "EU branding"; member state citizenships / nationalities haven't been replaced with single "European" citizenship / nationality)
• Unified immigration law (each member state still has jurisdiction over most forms of immigration, including the various permanent residency categories and also citizenship; EU has only unified immigration in specific cases, such as visa-free periods for eligible tourists, and the Blue Card for skilled work visas)
• Military (each member state maintains its own military, although the EU does co-ordinate defence policy between members; EU itself only has a peacekeeping force)
• Taxation (EU does not tax citizens directly, only charges a levy on the government of each member state)
• Unified health care system (still entirely separate systems for each member state)
• Unified education system (still entirely separate systems for each member state)
• Unified foreign relations (member state embassies worldwide haven't been replaced with "European" embassies; still numerous treaties and bilateral relations exist directly between member states and other nations worldwide)
• Unified representation in the UN (each member-state still has its own UN seat)
• Unified national symbols (the EU has a flag, an anthem, various headquarter buildings, a president, a capital city, official languages, and other symbols; but member states retain their own symbols in all of the above; and the symbols of individual member states are generally still of greater importance than the EU symbols)
• Sovereignty under international law (each member-state is still a sovereign power)

Verdict

The EU is still far from being a federated entity, in its present incarnation. It's also highly uncertain whether the EU will become more federated in the future; and it's generally accepted that at the moment, many Europeans have no desire for the EU to federate further.

Europe has achieved a great deal in its efforts towards political and economic unity. Unfortunately, however, a number of the European nations have been dragged kicking and screaming every step of the way. On account of this, there have been far too many compromises made, mainly in the form of agreeing to exceptions and exclusions. There are numerous binding treaties, but there is no constitution. There is a quasi-supreme court, but it has no supreme jurisdiction. There is a single currency and a border-free zone, apart from where there isn't. In fact, there is even a European Union, apart from where there isn't (with Switzerland and Norway being the most conspicuously absent parties).

Federalism just doesn't work like that. In all the truly federated unions in the world, all of the above issues have been resolved unequivocally – no exceptions, no special agreements. Whichever way you look at it – by comparison with international standards; by reference to formal definitions; or simply by logical reasoning and with a bit of common sense – the European Union is an oxymoron at best, and the United States of Europe remains an improbable dream.

I'm now going to dive straight into a comparison of statutory language and programming code, by picking out a few examples of concepts that exist in both domains with differing names and differing forms, but with equivalent underlying purposes. I'm primarily using concept names from the programming domain, because that's the domain that I'm more familiar with. Hopefully, if legal jargon is more your thing, you'll still be able to follow along reasonably well.

Boolean operators

In the world of programming, almost everything that computers can do is founded on three simple Boolean operations: AND, OR, and NOT. The main use of these operators is to create a compound condition — i.e. a condition that can only be satisfied by meeting a combination of criteria. In legislation, Boolean operators are used just as extensively as they are in programming, and they also form the foundation of pretty much any statement in a unit of law. They even use exactly the same three English words.

In law:

FREEDOM OF INFORMATION ACT 1989 (NSW)

Transfer of applications

Section 20: Transfer of applications

1. An agency to which an application has been made may transfer the application to another agency:
   
   1. if the document to which it relates:
      
      1. is not held by the firstmentioned agency but is, to the knowledge of the firstmentioned agency, held by the other agency, or
      2. is held by the firstmentioned agency but is more closely related to the functions of the other agency, and

   2. if consent to the application being transferred is given by or on behalf of the other agency.

(from AustLII: NSW Consolidated Acts)

In code:

<?php
if (
    (
      ($document->owner != $first_agency->name && $document->owner == $other_agency->name)
      ||
      ($document->owner == $first_agency->name && $document->functions == $other_agency->functions)
    )
    &&
    (
      ($consent_giver->name == $other_agency->name)
      ||
      ($consent_giver->name == $representing_agency->name)
    )
  ) {
  /* ... */
}
?>

Defined types

Every unit of data (i.e. every variable, constant, etc) in a computer program has a type. The way in which a type is assigned to a variable varies between programming languages: sometimes it's done explicitly (e.g. in C), where the programmer declares each variable to be "of type x"; and sometimes it's done implicitly (e.g. in Python), where the computer decides at run-time (or at compile-time) what the type of each variable is, based on the data that it's given. Regardless of this issue, however, in all programming languages the types themselves are clearly and explicitly defined. Almost all languages also have primitive and structured data types. Primitive types usually include "integer", "float", "boolean" and "character" (and often "string" as well). Structured types consist of attributes, and each attribute is either of a primitive type, or of another structured type.

Legislation follows a similar pattern of clearly specifying the "data types" for its "variables", and of including definitions for each type. Variables can be of a number of different types in legislation, however "person" (and sub-types) is easily the most common. Most Acts contain a section entitled "definitions", and it's not called that for nothing.

In law:

SALES TAX ASSESSMENT ACT 1992 (Cth) No. 114

Section 5: General definitions

In this Act, unless the contrary intention appears:

...

• "eligible Australian traveller" means a person defined to be an eligible Australian traveller by regulations made for the purposes of this definition;

...

• "person" means any of the following:
  
  1. a company;
  2. a partnership;
  3. a person in a particular capacity of trustee;
  4. a body politic;
  5. any other person;

(from AustLII: Commonwealth Numbered Acts)

In code:

<?php
class Person {
  protected PersonType personType;

  /* ... */
}

class EligibleAustralianTraveller extends Person {
  private RegulationSet regulationSet;

  /* ... */
}
?>

Also related to defined types is the concept of graphs. In programming, it's very common to think of a set of variables as nodes, which are connected to each other with lines (or "edges"). The connections between nodes often makes up a significant part of the definition of a structured data type. In legislation, the equivalent of nodes is people, and the equivalent of connecting lines is relationships. In accordance with the programming world, a significant part of most definitions in legislation are concerned with the relationship that one person has to another. For example, various government officers are defined as being "responsible for" those below them, and family members are defined as being "related to" each other by means such as marriage and blood.

Exception handling

Many modern programming languages support the concept of "exceptions". In order for a program to run correctly, various conditions need to be met; if one of those conditions should fail, then the program is unable to function as intended, and it needs to have instructions for how to deal with the situation. Legislation is structured in a similar way. In order for the law to be adhered to, various conditions need to be met; if one of those conditions should fail, then the law has been "broken", and consequences should follow.

Legislation is generally designed to "assume the worst". Law-makers assume that every requirement they dictate will fail to be met; that every prohibition they publish will be violated; and that every loophole they leave unfilled will be exploited. This is why, to many people, legislation seems to spend 90% of its time focused on "exception handling". Only a small part of the law is concerned with what you should do. The rest of it is concerned with what you should do when you don't do what you should do. Programming and legislation could certainly learn a lot from each other in this area — finding loopholes through legal grey areas is the equivalent of hackers finding backdoors into insecure systems, and legislation is as full of loopholes as programs are full of security vulnerabilities. Exception handling is also something that's not implemented particularly cleanly or maintainably in either domain.

In law:

HUMAN TISSUE ACT 1982 (Vic)

Section 24: Blood transfusions to children without consent

1. Where the consent of a parent of a child or of a person having authority to consent to the administration of a blood transfusion to a child is refused or not obtained and a blood transfusion is administered to the child by a registered medical practitioner, the registered medical practitioner, or any person acting in aid of the registered medical practitioner and under his supervision in administering the transfusion shall not incur any criminal liability by reason only that the consent of a parent of the child or a person having authority to consent to the administration of the transfusion was refused or not obtained if-
   
   1. in the opinion of the registered medical practitioner a blood transfusion was-
      
      1. a reasonable and proper treatment for the condition from which the child was suffering; and

...

(from AustLII: Victoria Consolidated Acts)

In code:

<?php
class Transfusion {
  public static void main() {
    try {
      this.giveBloodTransfusion();
    }
    catch (ConsentNotGivenException e) {
      this.isDoctorLiable = e.isReasonableJustification;
    }
  }

  private void giveBloodTransfusion() {
    this.performTransfusion();

    if (!this.consentGiven) {
      throw new ConsentNotGivenException();
    }
  }
}
?>

Final thoughts

The only formal academic research that I've found in this area is the paper entitled "Legislation As Logic Programs", written in 1992 by the British computer scientist Robert Kowalski. This was a fascinating project: it seems that Kowalski and his colleages were actually sponsored, by the British government, to develop a prototype reasoning engine capable of assisting people such as judges with the task of legal reasoning. Kowalski has one conclusion that I can't help but agree with wholeheartedly:

(Kowalski 1992, part 7)

Legislation and computer programs are two resources that are both founded on the same underlying structures of formal logic. They both attempt to represent real-life, complex human rules and problems, in a form that can be executed to yield a Boolean outcome. And they both suffer chronically with the issue of maintenance: how to avoid bloat; how to keep things neat and modular; how to re-use and share components wherever possible; how to maintain a stable and secure library; and how to keep the library completely up-to-date and on par with changes in the "real world" that it's trying to reflect. It makes sense, therefore, that law-makers and programmers (traditionally not the most chummy of friends) really should engage in collaborative efforts, and that doing so would benefit both groups tremendously.

There is, of course, one very important thing that almost every law contains, and that judges must evaluate almost every day. One thing that no computer program contains, and that no CPU in the world is capable of evaluating. That thing is a single word. A word called "reasonable". People's fate as murderers or as innocents hinges on whether or not there's "reasonable doubt" on the facts of the case. Police are required to maintain a "resonable level" of law and order. Doctors are required to exercise "reasonable care" in the treatment of their patients. The entire legal systems of all the civilised world depend on what is possibly the most ambiguous and ill-defined word in the entire English language: "reasonable". And to determine reasonableness requires reasoning — the outcome is Boolean, but the process itself (of "reasoning") is far from a simple yes or no affair. And that's why I don't expect to see a beige-coloured rectangular box sitting in the judge's chair of my local court any time soon.