A new year has seen political debate over an Indigenous Voice to parliament ramp up, with the federal government confirming a referendum will be held by December.
The federal opposition has been persistently calling for the government to release more detail, including what the Voice would be, who would work on it, and how much federal funding it would receive.
However, constitutional law expert Anne Twomey says it would be inappropriate for the government to release draft legislation ahead of the vote.
"It goes completely against the entire point of the referendum," Professor Twomey said.
"If you start putting out a detail with the bill, et cetera, people will think that that's what they're voting on in the referendum."
Labor has been consistent in saying those details would be covered by legislation if the Voice passes a referendum, repeatedly referring to the Calma-Langton report on the Voice as one of the documents that will inform eventual legislation.
Legislation leaves 'flexibility' for the Voice
Professor Twomey — who is one of the experts advising the government on the constitutional change ahead of the referendum — said there was confusion about what the referendum would actually achieve.
"The voting in the referendum is on the words and the change that you put into the constitution," Professor Twomey said.
"So it's the words that say — there shall be this body, it has the function of making representations to parliament and we have to leave parliament to decide the rest."
"There would be real problems if you did it in advance and gave them the bill and said: 'This is what's going to happen' and that people would think that that is what they're voting on.
"In fact, the process involves getting parliament to decide those things in the future and change them from time to time where needed."
There are precedents for exposure drafts of legislation being released before a referendum, but Professor Twomey said it was better to view this referendum through a similar lens as the 1946 and 1967 votes.
"With the 1967 referendum, it did give the Commonwealth parliament power to make laws with respect to Indigenous Australians.
"No-one was saying then, 'Well, you have to tell me every single law that's going to be made using that power in the future.' I mean, that's just not possible."
There may be reasons to change some of those structural elements of the Voice down the track, which was why Professor Twomey said a simple constitutional amendment followed by more detailed legislation made sense.
"We don't want things frozen into the constitution that might be hard to change in the future. We want to have flexibility," she said.
"So, if the Voice isn't working well, if there are problems in it, say corruption or some sort of other issue, then you can legislate to resolve that."
