Expert warns against too much voice detail

The Albanese government could unwittingly ‘de-facto entrench’ a model if it presents a ­detailed proposal before the referendum.

The Albanese government could unwittingly “de-facto entrench” a model for the Indigenous voice if it presents Australians with a ­detailed proposal for its design before the referendum next year, a constitutional expert has warned.

Gabrielle Appleby of the faculty of law and justice at the University of NSW said there were risks associated with calls for granular detail about the Indigenous advisory body. This could be used later to argue the model could not be altered as needed.

“There’s a really important balance that needs to be struck here,” Professor Appleby said. “The Australian people are ­entitled to know what they are being asked to vote on in the constitutional amendment, otherwise they are not exercising informed choice in the referendum.

“So there is definitely a need for information about the nature and likely operation of the amendment, but there’s a lot of information on that already. Contrary to some political statements, the concept of the voice doesn’t exist in a vacuum. But this doesn’t equate to the release of a fully formed, or close to fully formed, proposed model before the ­referendum.”

In 2016-17, Professor Appleby worked as a pro-bono constitutional adviser to the Regional Dialogues and the First Nations Constitutional Convention that led to the Uluru Statement from the Heart. Her knowledge of constitutional law was available to help some 1200 Indigenous people who met around Australia to decide what constitutional recognition meant to them.

“Release of a fully formed, or close to fully formed, proposed model carries with it real constitutional dangers,” she said. “First is that the Australian people will be misled in what they are being asked to vote on, and thus the referendum will be distorted.

“The referendum is not about the detail of the body, but its existence and primary function, and then giving the power to parliament to determine the model, and to allow for it to evolve and change over time. Second, if a fully formed, or close to fully formed, model is ­released there’s a real risk that this will de-facto entrench, or ‘lock-in’, the model.

“This might operate at a legal level, with that detail possibly constraining the future interpretation of the voice.

“If not at a legal level, certainly at a political level a future parliament would be very cautious of amending a model that had been passed with the referendum.”

She said it was her opinion that it “could undermine the whole intention of the amendment, which was to allow for adaptation, evolution and improvement” of an ­Indigenous advisory body as needed over time.