Parliament, not the devil, should control the detail on the Voice

The devil is in the detail – so it is said. But how much detail do you need before you vote on a constitutional amendment?

What you need to know is the nature of the amendment to the Constitution. What words are being changed? What will it permit or prohibit? This is important because once a change is entrenched in the Constitution, it can only be changed by another referendum.

The Aboriginal flag flies near Parliament House in Canberra.Credit: Alex Ellinghausen

But if that constitutional change empowers parliament to make certain types of laws in the future, you only need to know the scope of the power – not every law that will be made under that exercise of power. This is for two reasons.

First, it is a matter for each democratically elected parliament to decide what laws it makes, within the scope of its power. It will depend on who is in government, who has the balance of power in the Senate, how influential public pressure is, what negotiations occur and what compromises are made. Different laws will be made to suit the community expectations of the time.

Second, the laws parliament makes are not entrenched in the same way as constitutional changes. They can be changed relatively easily if they turn out to be ineffective or have unintended consequences. If the people don’t like the laws, they can influence their local MP or vote them out at the next election. The ordinary democratic process ensures parliament is responsible to the people for the laws it makes.

When it comes to the proposed constitutional amendment for an Indigenous Voice to parliament and the government, the people are being asked to approve what is in the amendment. That involves the establishment of a body, to be called the Aboriginal and Torres Strait Islander Voice, which may make representations to parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander Peoples. The purpose behind it is to allow parliament and the government to be better informed when making decisions affecting Indigenous Australians.

Prime Minister Anthony Albanese and Indigenous Australians Minister Linda Burney have faced criticism over a lack of detail on the Voice.Credit: Alex Ellinghausen

The proposed amendment will then give parliament the power to make laws about the composition, functions, powers and procedures of the Voice. The detail that people are currently agitating for is not something that falls within the proposed amendment itself, but is something that parliament will enact in the future. Matters such as how many members the Voice might have, how they are chosen and how the Voice operates, are left for parliament to decide. The politicians currently demanding this detail are the ones who will vote on it in the future. This amendment will make them the decision-makers.

This is a sensible approach. Constitutions are not places where you want to freeze details. It is appropriate to leave it to parliament as this gives greater flexibility to adjust for future needs. If the Voice is not working well, its composition or procedures can be changed to improve it. If people don’t like what parliament has done, they can impose pressure to get change or exercise their rights at the ballot box. Ultimately, it is left to the democratic process and the will of the people.

Does this mean that voters will be “voting blind” in a referendum if they cannot know every way that parliament might exercise its powers in the future? No. Voters in a referendum will be voting on the basic principle – giving Indigenous Australians a collective Voice to seek to influence and inform the parliament and government by making representations to them. The power that they give to parliament will be confined to listed matters – the composition, functions, powers and procedures of the Voice. The people will vote, with eyes wide open, to let parliament decide these matters in the future.

In 1967, the people approved a constitutional amendment giving parliament power to make special laws for Aboriginal people. They did not demand first to know the content of all the laws that parliament would make using this power. They left it to parliament.

In 1946, the people approved a constitutional amendment giving parliament power to provide social security benefits, such as unemployment benefits, medical and dental services and family allowances. They did so without knowing how much would be spent on the benefits and who would receive them. They left it to parliament.

When a referendum campaign descends to fights about detail, it is almost invariably lost. It needs to focus on the principle and purpose of the amendment. Detail is rightly left to parliament to decide and for the democratic process to control. It puts democracy, not the devil, in charge of the detail.

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