Proposed Voice to Parliament already more detailed than most of the constitution

14 August 2023
Clarifying misconceptions around the Voice
Professor Simon Rice from the Sydney Law School argues a perceived lack of detail in the Voice proposal is not a reason to vote 'no'.

The no-detail argument for a "no" vote on the Voice referendum is at best misconceived, and at worst dishonest. The simple position is that the Australian constitution is light on detail; that's how it works.

The constitution gives us an overall structure, and leaves much of the detail to the elected Parliament to decide. In fact, the Voice proposal is more detailed than much of the constitutional structures that we take for granted.
Professor Simon Rice, Sydney Law School

Parliament? The constitution establishes it, but it doesn't detail how the business and proceedings of Parliament will be managed, or how often it has to meet beyond once a year. All that is up to the Parliament to decide.

The constitution establishes a Senate, but it doesn't say how many senators there must be beyond a minimum of six per state. That's another detail that Parliament decides from time to time.

The constitution establishes a House of Representatives, but leaves it to Parliament to decide the divisions in each state and the number of members for each division.

How many ministers can there be? The constitution leaves it up to the Parliament to decide if there should be more than seven.

And departments? The constitution says only that the government of the day can establish and run them as it pleases.

While we're on ministers, the constitution make no mention of a cabinet, a prime minister, a treasurer, or a minister for anything. They all exist by convention, not from any detail in the constitution.

What about the High Court? The constitution establishes it, but allows the Parliament to decide if there should be more than three judges, and says nothing about how the judges will be appointed.

And where does the Federal Court come from? All that our constitution allows for is "such other federal courts as the Parliament creates".

There is nothing at all said about the courts or the judges.

How's that for detail?

Have you noticed how active the federal government is in relation to education? But it has no explicit "education" power under the constitution; the "absent" power has simply been accepted and not challenged.

In searching for detail in our constitution, it is significant that we inherited our "Westminster" system of government from the United Kingdon, which has no written constitution at all.

Our written constitution does just enough to set us up. It describes the big picture, the outlines of our democratic structure. The detail is filled in over time, as necessary, by our elected Parliament.

Many provisions in the constitution are qualified with the words "until the Parliament otherwise provides".

Leaving matters of detail to Parliament allows the flexibility necessary to adapt to changing times and circumstances, such as reducing the original age requirement for an MP from 21 to 18.

The proposed Voice to Parliament would join other institutions - such as the Parliament and the High Court - that are established under the constitution but with much of the "detail" being left to future parliaments to decide.

Understandably, most people don't know how our constitution works.

Those who do, such as senior politicians, know that it is not a document of detail.

It is disingenuous of those who know better to misrepresent our constitution, and to exploit people's lack of understanding.

Whatever the merits of a "no" argument for the Voice, they do not lie in the strawman argument of "no detail".


This opinion piece was originally published in The Canberra Times

Sally Quinn

Media Adviser

Related articles