Why don't we have more detail on the Voice to Parliament?

Opposition leader Peter Dutton recently went so far as to tell reporters that Prime Minister Anthony Albanese is "deliberately withholding the detail".

So why don't we have more details about the Voice to Parliament?

According to University of NSW law professor Gabrielle Appleby, "there is no "deliberate withholding of detail'".

We spoke to Professor Appleby, and Melbourne University associate law professor William Partlett, who both said that there are a number of constitutional reasons why we aren't voting on a more detailed proposal for the Voice at the referendum.

At the referendum, we will be asked to vote on whether an Indigenous Voice to Parliament should exist in our constitution.

Should the "yes" vote win, the federal parliament would then work to draft legislation to design and set up the Voice.

The Prime Minister said that he would move to set up a joint parliamentary committee co-chaired by Labor and Coalition politicians, which would "oversee the development of legislation for the Voice advisory group".

Perhaps the biggest reason is that this isn't how our constitution works.

Prof. Partlett said that while the constitution outlines our federal system of governance, a lot of detail is purposefully left out for parliament to determine later through legislation.

"The Constitution is a very broad brush," he said.

"You put in institutions, and then institutions themselves develop through legislation".

Prof. Partlett pointed to the High Court as an example, noting that while the Constitution establishes the existence of the High Court, it allows Parliament to decide how many judges should serve (we've gone from three in 1903, to seven today).

Prof. Partlett said that voting to enshrine a more detailed model for the Voice in the constitution wouldn't allow the body change over time as needed.

READ MORE:

"What we're doing is voting on an idea... it's kind of a moral question: to what extent do we want to empower and give voice and allow representations to be made by Indigenous Australians through some sort of institution called the Voice?" Prof. Partlett said.

"... I expect, it will change, it will be refined, it will improve and we can solve problems with it. But if we had the detail now, and the detail was problematic, it would be kind of set in stone."

"So the detail will emerge through legislation after the Australian people decide yes or no whether they want to create this institution in the first place and enshrine it in the Constitutions and allow it to make representations".

Prof. Appleby said that if the government put together the legislation for the Voice ahead of the referendum, this would probably confuse a lot of people about what exactly they are voting for.

"It might mislead voters, who might think they are voting on the detailed model, which might change as it passes through the parliament, and of course, might change into the future," Professor Appleby said.

Yes - in July 2021, Professor Marcia Langton and Tom Calma also delivered the Indigenous Voice co-design report, which made several recommendations on how the advisory body should be designed.

The report recommended the Voice be comprised of 24 members, including two members from each state, territory and the Torres Strait Islands; five representing remote communities; an extra representative for mainland Torres Strait Islander people, and two optional members jointly appointed by the Voice and government.

Gender balance would be guaranteed and the body would be co-Chaired by members of the opposite gender.

The report recommended members serve four year terms, staggered so half are chosen every two years. Under this model, members wouldn't be able to serve more than two terms consecutively.

Whichever way you choose to vote in the upcoming Voice referendum, we are here to answer your questions and cut through the spin.

Let us know what claims you would like our team to fact-check next in the comments below.