As we have just indicated, one of the major criticisms of the Voice is that there is not enough detail available about how it would be structured or its specific powers. It is obvious that the detail will become very important if the Yes vote succeeds in the Referendum and parliament has to debate how to put it into effect. But what is the significance of calls for more detail now?
Calls for more detail in the pre-referendum stage, made both by the media and politicians, have appeared for the most part to be politically oriented. From one side they have been criticised by a variety of academics, politicians and journalists. Megan Davis, for example, asserts that these requests are not born out of genuine concern but are merely ‘performative’ and may result from a political opposition to the Voice. In these terms, according to Patrick Dodson, Special Envoy for Reconciliation and the Implementation of the Uluru Statement from the Heart, no matter what details or explanations are given, those calling for details won’t ever be satisfied.
The media’s extensive coverage of the debate around detail has also been criticised for diverting public attention from the benefits a Voice could bring to Indigenous communities and the efforts which went into the Uluru Statement from the Heart. Megan Davis notes that much of the current discussion in the media treats the Voice referendum in the same way as it did the republic referendum, which involved significant alterations to the Constitution. By contrast, she says, the Voice referendum would create no more than a ‘single enabling provision’ and the details being called for would not be written into the Constitution. The parliament would pass legislation on the details as it saw fit at a later date, and these laws would be subject to change should the Voice not function effectively.
As a number of commentators have noted, the politicians calling for more detail are precisely the same people who would be central to the process of debating the details in the future, so they should, in principle, be able to say now what details they themselves will argue for. From the other side, we could not find reflective defences of why the opponents of the Voice are calling for more detail in the pre-referendum stage.
According to legal expert, Anne Twomey, deferring decisions on the detail of the Voice to Parliament serves several positive purposes, none of which includes withholding information from the public. These include maintaining the flexibility of the body, allowing it to be adapted as the needs of Indigenous communities change, and allowing the Aboriginal and Torres Strait Islander population to further contribute to its design. The current focus on details in the media may distract from the substantive question put to the Australian people in the referendum: that is, whether there should or shouldn’t be a representative body to aid the Australian government in creating legislation impacting Indigenous communities.