Ten questions on the voice the ‘No’ side must answer

The real argument is shaping up over constitutional visions: enshrined recognition v a Constitution free of Indigenous emphasis.

The fondest hopes of both sides have evaporated. On the Yes side – my side – the notion there would not be an organised No case, that it would all be a romp in the park, has collapsed.

Referendums are much like marriages. Sooner or later, romance is confronted by reality.

In the lead-up to a referendum campaign, both sides revel in their own rhetoric, the wickedness of their opponents and the certainty of victory. Then the grinding slog of the campaign begins.

We have now fully entered the campaign phase over an Indigenous voice. Certainties and courtesies are stretched. Battle lines are fully drawn.

The fondest hopes of both sides have evaporated. On the Yes side – my side – the notion there would not be an organised No case, that it would all be a romp in the park, has collapsed. This will be as much a fight as any other referendum.

On the No side, the idea this referendum might be strangled before birth, that it could be argued away before even being put, is over. There really will be a titanic clash of constitutional wills.

Being positive, this clash could at least be civilised. There will be good people on both sides. Debate certainly can be sharp but it should not be jagged.

More challenging, this is a debate that matters profoundly, not a tiff about my symbolic republic. Particularly for Indigenous Australians, someone could get seriously hurt by both campaign and outcome.

Oddly, few people realise there is not really a No side in any referendum. Rather, there are two Yes sides for different constitutional visions. In this case, one is for constitutional recognition, the other for a Constitution free of Indigenous emphasis.

Critically, each group bears the same onus of proof in demonstrating their proposal is cogent, compelling and will not harm the Australian polity. There is no such thing as “Just vote No”. You vote Yes to one or the other.

So, it is entirely reasonable for each side to ask genuine questions of the other.

This is not insult but engagement. Until now, it has been those against constitutional amendment doing the interrogating.

But here are 10 fair questions for these opponents.

1  Most basic, why do you think the subject of a voice is not important enough to be in the Constitution? What is your principled criterion for any inclusion? If it is indeed one of basic importance – like the founding fathers – how does the position of Indigenous people not pass the test? If you are worried about repealing the voice, that is always open to the Australian people through further referendum.

2 Why is it always wrong to have provisions about race in a constitution? Our own Constitution has always had race provisions. Why have you not demanded their repeal? How do you explain away race aspects of other constitutional settlements, including those of great functioning democracies such as the UK, the US and Canada?

3 Is the definition of “Indigenous person” really such a problem? Why will it matter? The voice amendment would confer no new rights of benefits. If you really are worried, why not have a suitable definition in the supporting legislation?

4  Indeed, why are we talking only about the constitutional amendment but not the surrounding legislation? The legislation will be completely under the control of parliament, and this is where multiple guarantees and failsafes could be placed. These could cover composition of the body, its powers, procedures and priorities, just as examples.

5  How could the voice ever actually be a third chamber of parliament? It cannot initiate, amend, reject or pass laws. It may well be influential, but that is a different thing. We would want that. Many bodies are influential: lobby groups, parliamentary committees, business, unions and so forth. None dictates.

6 Why does the election of Indigenous members of parliament invalidate the need for a voice? Those members do not compose an internal Indigenous voice because they are not elected to represent only Indigenous people. On the contrary, they must represent all their constituents. Anything else would be a basic breach of representative democracy.

7  Why would the High Court run amok with an Indigenous voice? The constitutional provisions would be mechanical, not thematic. They would be very like the 1967 referendum insertions, which in 50 years have never excited the court. What would be dangerous in the Constitution are broad, sweeping values. This is where amending the preamble is dangerous. How can this be advanced as an alternative to recognition?

8 Why must every Aboriginal body end up as a repetition of the Aboriginal and Torres Strait Islander Commission? We have absorbed ATSIC’s painful lessons. This is where legislation can deal comprehensively with qualification, membership, terms, accountability and removal. Let’s talk.

9  Why are we so sure that a voice would make no difference “on the ground”? On the face of it, a body specially centred on Indigenous issues should at least focus attention. But again, what about the legislation? This is where practical inquiries, processes and outcomes can be mandated for the voice. This is a better debate than a battle of cliches.

10 Finally, what will be the  consequences if the referendum fails? This really is a question for each of the two Yes cases. The bottom line is that Indigenous souls would be broken. This is not an argument to pass a bad proposal. But those putting up a plan bear a huge responsibility in bringing it to a referendum. Those opposing it carry an at least equal responsibility in seeking to defeat it.

The bottom line is that opponents of the voice face as many – or more – pointed questions as those favouring constitutional recognition. It would be good if we could engage around some convincing answers.

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