Prime Minister Anthony Albanese has not ruled out legislating the Voice to Parliament should Australians vote to reject enshrining the body in the Constitution, prompting accusations from Opposition Leader Peter Dutton that he was being tricky with the public.

Albanese side-stepped questions on whether he intended to legislate the Voice if the referendum was lost, saying instead that he was not contemplating failure as he was pressed on the option in two interviews.

“Well, one of the things that I’m not doing is leading with a position that assumes a loss of a referendum,” Albanese told 2GB radio on Wednesday. He provided a similar response on Sky News on Tuesday evening.

Prime Minister Anthony Albanese has kept the door open to legislating a Voice to Parliament should the referendum fail.Credit:Nine News

But he rejected the assertion that he would be ignoring the will of voters if the government proceeded to legislate the body in the wake of a failed national vote, suggesting the two outcomes were separate, likening the scenario to “confusing rugby league and rugby union”.

“If Australians say no, then there will be no constitutional change,” Albanese said.

The Voice debate has deteriorated into an exchange of barbs between the prime minister and Dutton, as the government insists the referendum is a vote about the moral principle of giving Indigenous people a say over laws that affect them and recognising them in the Constitution, while accusing the Liberal leader of seeking to undermine this with demands for detail.

Dutton seized on the interview, calling it a “train wreck” and Albanese “tricky” as he repeated his call for the government to legislate the body first before seeking to enshrine it in the constitution.

“Is he saying to the Australian public, if you vote no in the referendum that he will legislate the next day to bring it in? If that’s the case, well, pass the legislation now and demonstrate to Australians how it can work,” Dutton said.

He accused the government of trying to give “moral cover” to the Voice proposal by linking it to constitutional recognition, describing it as a “pretty cheap political trick”.

This comes after Attorney General Mark Dreyfus called on Dutton to answer two questions of principle – whether he supported constitutional recognition, and whether accepted outcomes were better for Indigenous people when they were consulted about matters that affected them – arguing if he answered yes to both, he supported a constitutionally enshrined Voice.

Albanese also echoed Dreyfus in rejecting assertions, including by former High Court justice Ian Callinan, that by enshrining the body in the constitution it would unleash a flood of litigation.

He said the draft amendment, which limits the role of the body to making “representations” to the Parliament and the executive, made it clear the body would be advisory only.

He also pointed to a landmark 2021 report by Indigenous leaders Marcia Langton and Tom Calma, which sets out a 24-member model for how a Voice could operate, which he said made clear the intention was for the body to be non-justiciable.

“That is [people would not be] able to go to court to say, ‘We weren’t asked about x policy, we should have been’ – that will not be allowed. And that’s why you have legislation before the Parliament that will determine the nature of that detail,” Albanese said.

However, the government has not formally endorsed the Calma-Langton report or made clear that it intends to legislate the model the report sets out should the referendum be successful.

But the prime minister’s remarks about whether decisions could be contested in court contrast with the position of his Attorney-General, who has instead said it is likely people will attempt to litigate the Voice once it is inserted into the constitution but that this should not act as a deterrent to change.

“You could point to a whole range of provisions in our Constitution … that have been the subject of continued litigation [and] that hasn’t prevented us from continuing to govern our country in an orderly way,” Dreyfus told this masthead earlier this week.

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