Peter Dutton’s push for draft bill before voice referendum risks confusing voters, experts warn | Indigenous voice to parliament

Constitutional experts advising the government on the Indigenous voice to parliament say Peter Dutton’s calls to release a draft bill before the referendum would lead to more voter confusion and potentially undermine the body in the future.

But while members of the legal expert group say the government could publish more broad information about how the voice would work, they claim it is “not reasonable” for critics to demand an exhaustive list of the consultation body’s operations, noting it could be changed at any time by future parliaments.

The opposition leader has amped up his criticism of the voice this year, reiterating questions about specific details of the body. Last week he challenged the government to either legislate the voice or release a draft bill before the referendum.

The prime minister, Anthony Albanese, ruled out legislating the voice before the referendum, saying Indigenous Australians and the Uluru statement from the heart had asked for constitutional recognition.

The attorney general, Mark Dreyfus, claimed Dutton was asking “a lot of questions he knows the answer to”. In an interview with Guardian Australia this week, Dreyfus backed Albanese’s rationale for not legislating the voice before the referendum, but promised more detail on how it would work.

The government has pointed to broad principles of the voice outlined in co-design reports, but also said it cannot specify exactly how the voice would work in perpetuity as its operations would be subject to the government of the day.

Anne Twomey, a professor of constitutional law at the University of Sydney, is on the government’s constitutional expert group giving legal advice on the referendum proposal, alongside Prof Megan Davis, Noel Pearson, Prof George Williams and Kenneth Hayne.

Twomey said some previous referendums had featured draft bills, but many others had been solely based on the principle rather than specific details.

“There have been many constitutional proposals where they proposed giving parliament power to do something, and nobody can say what parliament will do with it,” she told Guardian Australia.

“In 1967, giving power for laws with respect to Aboriginal and Torres Strait Islander people, nobody was saying, as far as I know, ‘you have to tell us every law to be enacted in future before we vote for it’.”

Twomey also pointed to the 1946 referendum giving the federal government power to make social services laws. She noted this power had been used many different ways in the years since, with details of government payments varying widely.

“Doubt is still obviously a relevant thing, but it’s not reasonable in most cases to ask in advance what a parliament will do in future,” Twomey said.

“[The current government] don’t control the future parliament. All you can do at most is say what your intention as a government is now, and how you’ll use that power.”

She also noted the political reality that following a successful referendum, the Albanese government would need to negotiate legislation through parliament to establish the voice, meaning a draft bill was subject to amendment.

“People would think [the draft] is what they’re voting on at the referendum, when they’re actually voting on the words to go into the constitution,” Twomey said.

“Even if you put qualifications on that it can be changed in future and they have to negotiate amendments, people will still believe they’re voting on that particular model. That would be problematic, because people would say they voted for it on this basis.”

Cheryl Saunders is a professor of constitutional law at the University of Melbourne and another member of the government’s legal expert group. She said there was “no hard and fast rule” about how much detail was shared before a referendum, but concurred that a draft may increase public confusion.

“The legislation will vary from time to time. You wouldn’t want people not to understand that,” she said.

“If you were doing a draft bill, you’d need to have a lot of caveats around it, saying this isn’t necessarily it. You’d have people saying ‘what are you doing it for?’

“You could say ‘this is likely to be it but it may need to be tweaked’, but that would be a complicated message to get across.”

Saunders also questioned whether the federal government would even have the constitutional power to legislate the voice ahead of a referendum.

Saunders and Twomey stressed the legal expert group was not privy to government political discussions around the referendum or campaign. However, both noted a need for more information to be shared to inform the public vote.

“We need to give some proper thought to what the people need for the purposes of this referendum,” Saunders said.

Twomey suggested reforming the traditional information pamphlet distributed to voters, which the government has proposed scrapping. Instead of having the pamphlet include essays written by politicians for and against the change, she proposed having each case summarised in neutral and objective language by public servants.

“The yes and no case usually doesn’t emerge until after the referendum bill, and the government hasn’t even got a settled bill yet. It is early days in this type of information campaign.”

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