Misplaced optimism will kill voice

With the voice, the government and its supporters seem driven by symbolism, not success. Picture: Alistair Brightman

The Indigenous voice to parliament is at its most vulnerable. The next two months will seal its fate. I say this as a resolute supporter, now and from its inception.

The voice is undermined not by its enemies but by hyper-optimistic friends. It is beset by hope and hubris. Enthusiasm is understandable. The voice would be a mighty step forward for Indigenous people and Australia as a whole. But nothing can justify wilful blindness to referendum reality, politics and even – perhaps – propriety. The consequences for Indigenous people of a failed referendum are just too awful.

The most obvious ignorance of referendum reality is the dismissal of any requirement for bipartisan support. Instead, left-leaning proponents of the voice talk vaguely of “community consensus”.

Wrong. No one can remember a winning referendum without support by both major parties. Only an amnesiac could forget the partisan collapse of the republic in 1999.

But even tackling this misplaced enthusiasm directly, where is consensus without bipartisan endorsement? In the last election, the Coalition, One Nation and the United Australia Party garnered between them 45 per cent of the national vote. Given referendum proposals typically lose support as the campaign proceeds, this is a lethal base for a No vote.

Referendum blindness also afflicts inexperienced enthusiasts campaigning the referendum should be put without its components being fully public, as specifics might “clutter the vote”. This is constitutional suicide.

Why would any sane person vote for a proposal whose exact details they were not allowed to see? It would be like buying a house without the price, the address or the number of rooms.

Mercifully, Senator Pat Dodson, special envoy to the Uluru Statement from the Heart, seems to have flicked the switch to sanity. He has promised an exposure document containing key elements, hopefully before Christmas.

Perhaps even more significantly, Anthony Albanese will address the Garma Festival, Australia’s largest Indigenous cultural gathering, at the end of this week. It is expected – and devoutly hoped – he will give further shape to the voice. But he should be quite clear about the sort of detail ultimately required. Australia needs a blueprint, not a newspaper ad.

How is the voice chosen? Elected or appointed? Who is eligible to serve? What legislation is scrutinised? Is executive action examined? What are the grounds of scrutiny? What are its powers? How is it funded? How is it resourced?

These are reasonable questions, demanding reasonable, honest, detailed answers. Preferably draft legislation, but at least a politically irreversible undertaking. Otherwise, Australians will smell a constitutional rat and vote accordingly.

Determined referendum ignorance also reflects a wildly optimistic view of what actually happens in referendum campaigns. Some voice supporters anticipate a cerebral discussion towards an inevitable positive outcome.

Wrong again. Referendums are defeated not by clinical counterargument but by dirty tricks and misleading propositions. Supporters of the voice have no idea what they will encounter. Consider these furphies.

How can we have an Indigenous voice when we cannot determine who is Indigenous? Anyone can claim that status, for fashion or benefits. Even Indigenous leaders worry over the number of people identifying as Indigenous.

What about the flag? Once we have constitutional recognition and some sort of Indigenous sovereignty, the existing flag will be replaced by the Indigenous flag. As any pollster will tell you, touch the flag and you are burned.

Won’t constitutional recognition reignite sweeping native titles claims? Will your backyard be safe?

The voice will be accompanied by a “truth-telling exercise”. Surely the only truth will be Indigenous truth. Australian society, past and present, will be on trial. It will be a blackfellas’ Nuremberg.

None of these arguments are reasonable. But all will be deployed with real potential to harm and destroy. Voice supporters simply cannot shrug them away.

Think of the winning monarchist argument that an Australian republic would be expelled from the Commonwealth (untrue) and from the Commonwealth Games, where we routinely beat penniless nations without the worry of the US and China (ridiculous, but deeply alarming).

Then there is referendum timing. The only established rule is to put a referendum when it has the best chance of winning, which also involves allowing enough time to develop the proposal.

But with the voice, the government and its supporters seem driven by symbolism, not success. Their ideal date seems to be May 27 next year, the 56th anniversary of the 1967 referendum including Aboriginal people in the census and allowing the national parliament to legislate for them.

But this date is entirely arbitrary. Barely 10 months away, it provides an impossibly short time for the drafting of the referendum question, the formulation of the constitutional amendment, the development of a detailed proposal, consultation on all these things, preparation of a Yes and No case, and the actual conduct of the referendum campaigns.

Then there is constitutional propriety. This certainly would be challenged by putting a referendum question without its legislative guts, but there are darker murmurings.

One is that the government could provide funding for the Yes campaign but leave the No campaign skint. Even more sinister is the idea that the current referendum legislation could be amended so there would not be even a formal No case authorised by members of parliament opposed to the voice.

In fairness to the Albanese government, these are only hopeful noises from some very unthoughtful supporters of the voice. But let us be quite clear about the whole proposition.

A referendum where one side is funded by the government of the day, let alone a referendum without a No case at all, is a Tammany Hall referendum. It would pave the way for future governments to buy desired referendum results on any favoured proposal.

It also would doom any chance of bipartisan support.

There is only one way forward for the voice. It must seek bipartisanship; be accompanied by an honest and detailed proposal; accept that it must argue its case against all opposition, fair and unfair; be timed for success; and be ethically put to the Australian people.

Each of these requirements currently are up for discussion. Failure to meet them spells catastrophe.

Emeritus professor Greg Craven is a constitutional lawyer and past vice-chancellor of the Australian Catholic University.