My four nearest neighbours in Double Decaf Latte Street, Inner Tealsville between them have six ‘Vote Yes’ signs affixed to their front fences. My neighbours are all fine people, but I reckon they’re wrong.

This might make for some awkward conversations on Saturday when they find me volunteering for the ‘No’ camp at our local Teal Central polling booth.

In preparation, I’m rehearsing my explanations. Here are just some of the reasons why I’m voting ‘No’.

1. Never mind the referendum question’s wording about “recognising the First Peoples of Australia” – this referendum is not really about ‘recognition’ of indigenous people at all. True, the Australian constitution doesn’t currently specifically recognise indigenous people. But it doesn’t specifically recognise non-indigenous people either. It doesn’t even expressly recognise the office of Prime Minister. So what? None of us doubts the existence of Australian prime ministers, indigenous Australians or non-indigenous Australians because none of these people are specifically referred to in our constitution. Most Australians have never read our constitution and never will. It is a worthy but dull set of assembly and operating instructions for history’s only self-governing continent. As ‘Yes’ supporter Professor Greg Craven recently observed, our constitution’s success is evidenced by our historical lack of military coups, judicial corruption, and arbitrary executions. And at least since 1967, our constitution hasn’t given indigenous and non-indigenous citizens different rights from each other. Changing the constitution now so that we have constitutional “recognition” of “First Peoples” would be innocuous symbolism in a widely unread document. It wouldn’t either help or harm anyone in any practical sense.  Let’s move on to the genuine controversy in this referendum – the Voice to Parliament and the executive.
2. The referendum proposes an institutional Voice to Parliament (and also the executive government) on “matters relating to Aboriginal and Torres Strait Islander peoples”. As of the last census, Australia has 812,000 indigenous people. But the proposal is to give them a single Voice. Indigenous Australia is not some single vast school of fish always moving silently and together in the same direction and readily capable of being adequately and fairly represented by a single Voice. Like Australians of every other demographic, Australians of indigenous heritage each have their own agency, opinions, needs, motivations, attitudes, and outlooks. Democracies should look to the opinions of their voters as separate individuals – not to the opinions of those who claim to speak for identity groups. Rather than giving indigenous Australians a single institutional Voice to Parliament, wouldn’t it be far better if we gave every indigenous Australian adult his or her own vote of equal value to their non-indigenous neighbours? Oops. We do precisely that already. And, contrary to what you keep reading elsewhere, we have been doing so since long before 1967. Every Australian adult – indigenous or otherwise – has an equal vote now. Every Australian adult is equally free to also join political lobby groups, political parties, street marches and the like now. These rights don’t currently change according to people’s ethnic identity. But when governments concern themselves with demographic groups, they necessarily overlook the individual people involved. To assume, for example, that a single indigenous Voice to Parliament can accurately and simultaneously represent, say, Jacinta Nampijinpa Price and Noel Pearson because both are Aboriginal is simply racial profiling. The essential logic underpinning the Voice can be summarised thus.  “Jacinta is black. So is Noel. They must therefore have shared experiences, needs and political outlooks, and the Voice can hence speak fairly on behalf of them both simultaneously and all other indigenous Australians as well.” Never mind the good intentions; that’s racial prejudice denying the legitimacy of two informed, articulate adults disagreeing with each other in a democracy. (It’s also wildly wrong as the competing arguments of Jacinta Nampijinpa Price and Noel Pearson on the referendum itself have so spectacularly illustrated in recent weeks.)
3. Parliament is already getting a cacophony of advice from people claiming to speak on behalf of indigenous Australians. For evidence of that, look no further than the very fact of this week’s referendum. As a nation, we are spending $450 million this week on a proposal to give enhanced political rights to approximately 3 per cent of the population. And we are doing so because some prominent indigenous leaders backed by some of Australia’s most powerful political parties, trade unions, academics, banks, mining companies, airlines and public intellectuals persuaded the government we should. In itself, that demonstrates the existing indigenous lobby groups already have ample power and influence in Canberra even without a formal Voice to Parliament.   
4. My four kids are now in their early twenties. In the usual course of things, I expect to become a grandparent in the fullness of time. Depending on my future children-in-law, some of my future grandkids might conceivably be able to claim indigenous heritage and some of my grandkids might not. Fine. But if the Voice succeeds, some of my future grandchildren will have political rights under the Australian constitution not available to their Australian-born cousins, also my grandkids. Not fine. (I picture myself riding a chairlift at Mt Buller with my future grandkids as one attempts to explain her indigenous disadvantage to her non-indigenous cousin and why the Voice is available to speak on behalf of one but not the other. Yuck.)
5. I am owning up here to my middle-class privilege. There are indigenous people (such as, say, ‘Yes’ proponents professors Marcia Langton and Megan Davis) who enjoy that same middle-class privilege. I don’t need or deserve special constitutionally entrenched legal and political rights because of my ethnic composition. Neither do they.
6. Any constitutional reform that gives a special right to people of only one group (such as the right to representation via an indigenous Voice to Parliament) necessarily denies that same right to everyone outside that group. This takes Australia backwards. A more equal Australia cannot be promoted by constitutionally entrenching unequal rights between indigenous and non-indigenous Australians.
7. The proposed Voice “may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander Peoples”. What does this mean? Every mainstream political issue is arguably one “relating to” both indigenous and non-indigenous Australians. Nuclear-powered submarines, Commonwealth-funded cancer research, Australian Antarctic bases, foreign aid, interstate freeways. All of these things and more will affect indigenous and non-indigenous taxpayers, voters, welfare recipients and their children. Modern Australian society cannot be neatly segmented into indigenous issues (about which the Voice would be able to legitimately “make representations”) and non-indigenous issues (about which it would not). The Voice’s remit will have no logical limits. It will be litigated and relitigated in perpetuity according to the changing whims of the High Court. (Former High Court Chief Justice Robert French might disagree but – with respect – he is retired and his public musings on the subject today are likely to be of scant interest to his successors in the High Courts of tomorrow.)  
8. As lawyers, we like testing ideas with counter-factual questions (e.g. what would have happened if the defendant had stopped at the red traffic light instead of driving through it?) I cannot get past the obvious counterfactual staring us in the face here. It is this. Is there any worthwhile policy or law assisting indigenous Australians which Australia should have in place today but has missed out on because we do not already have an indigenous Voice to Parliament? This is a basic question to which the ‘Yes’ camp appears to have no answer.
9. Did all your ancestors migrate to this continent 65,000 years ago? Or some? Or none? Or perhaps a little more recently? Follow-up question: why is it relevant? I was born here. My parents were both born here. My grandparents were all born here. So were most of their parents. I am not an invader. I am not a tourist. Because I have no land beyond the seas to return home to, this is, was, and will always be my land too. But only the extremist fringes of the left and right would contend that my ancestry genuinely makes me more or less Australian than any of my compatriots. Entrenching gradations of Australian citizenship in the constitution by giving some of us extra rights over others depending on the accidents of our ancestry is fundamentally unfair.
10. Don’t be seduced by the argument that this referendum is somehow akin to the same sex marriage plebiscite in 2016. This is the very opposite. The same sex marriage vote was an opportunity to promote equality between Australians and reduce prejudice against a minority. The Voice referendum is a chance to constitutionally entrench prejudice (albeit racial this time) and inequality. The two votes share a common underlying question: are we for treating all Australians as individuals with equal legal rights or do we want governments to preserve and entrench old prejudices and divisions within our society? I voted ‘Yes’ to same sex marriage and will vote ‘No’ to the Voice because you can’t vote for equality for everyone in 2016 and then vote in 2023 for an extra dollop of equality in the form of a Voice to Parliament for the minority who identify as indigenous.
11. Australia’s traditional egalitarian aspirations often fall short, but they are worthy and should not be eroded accidentally. There’s nothing egalitarian about voting to treat indigenous people as constitutionally different to other Australians.
12. Singer Paul Kelly has long been a supporter of indigenous people. One of his many great songs on indigenous Australia is ‘Special Treatment’. It describes the inequity of Aboriginal people being treated differently simply for their indigeneity. Kelly is a prominent supporter of the Voice but at its heart the Voice is a proposal that Australia should formally and uniformly treat Aboriginal people differently from the rest of us simply for their indigeneity. ‘Special treatment’ for Australia’s indigenous people has not been a great success for almost 240 years now. Constitutionally embedding a new form of ‘special treatment’ for them is unlikely to have a happier outcome.
13. Democracies are meant to self-correcting. Australian history is full of happy examples. We legislated for compulsory voting in 1924. It worked. We kept it. We legislated for the Aboriginal and Torres Strait Island Commission in 1990. It quickly became a corrupt and ineffectual dog with fleas. The Liberals axed it in 2005 and no subsequent Liberal or Labour government ever tried to bring it back. If the Voice is a good idea, we can legislate for it tomorrow and then tweak any problems in the normal course of democratic government. If a legislated Voice works, its very success will politically ensure its long-term survival. If, instead, a legislated Voice turns out to be an ATSIC-style dud, we will not be burdened with it permanently. A Voice to Parliament entrenched into the constitution would very different. It would be effectively concreted into the Australian government forever – whether it worked or not.
14. Let’s suppose for a moment that my egalitarian and anti-racist instincts are wrong. Let’s suppose that only indigenous politicians can truly understand and represent indigenous people because non-indigenous politicians exclusively represent non-indigenous people and non-indigenous views. Even in that sad and ridiculous world, indigenous Australians have ample federal parliamentary influence already. Canberra currently has 11 parliamentarians who identify as indigenous (senators Kerrynne Liddle (Lib), Jacinta Nampijinpa Price (Country Liberal), Dorinda Cox (Greens), Patrick Dodson (Labor), Malarndirri McCarthy (Labor) Jana Stewart (Labor), Jacqui Lambie (Independent) and Lidia Thorpe (Independent) and House of Representatives members Linda Burney, Gordon Reid and Marion Scrymgour (all Labor) and 215 who don’t. Statistically speaking, this suggests that indigenous people (who represent 3.8 per cent of Australia’s population) comprise 4.8 per cent of our federal parliamentarians are accordingly currently over-represented in parliament. True, these percentages will fluctuate with each election, but the point remains valid for two quite independent reasons. First, it illustrates that being indigenous is no obstacle to being elected to federal parliament in contemporary Australia. Second, if the present parliament cannot or will not listen to the 11 indigenous voices currently in its very midst, there is no sensible chance that any formalised external indigenous voice is going to get a better hearing or any better practical outcomes than are available through the current system. In which case, a Voice to Parliament would be worthless anyway.
15. Racism is either a good thing or it is not. “Good racism” is not a third alternative. Dr Martin Luther King Jnr looked “to a day when people will not be judged by the color of their skin, but by the content of their character.” This was right when he said it. Nothing has changed since. A Voice to Parliament would be premised upon the racial character of the people it purported to represent. That is racism.
16. Constitutionally entrenching the Voice would make it effectively permanent. This would necessarily imply that indigenous disadvantage is also permanent. Prejudging 812,000 indigenous people as being permanently incapable of sustaining themselves politically in a multi-cultural democracy without the political sheltered workshop of a Voice to Parliament is both pessimistic and patronising.
17. We have enough politicians already. The Voice proposal we are being asked to vote on is silent on who its members will be and how they will be elected or appointed. But it seems inevitable that anyone landing a gig on the Voice will become a politician upon appointment whatever their prior vocation. It seems unlikely that indigenous Australia’s problems today are attributable to any lack of politicians and bureaucrats in Canberra. (Indeed, there is a school of thought that the abundance of Canberra politicians and bureaucrats we already have involved in indigenous policy is a cause of some of indigenous Australia’s current problems rather than a solution to them.)
18. Is the Voice advisory only? Prime Minister Anthony Albanese is anxious to assure us that the Voice to Parliament will be only an advisory committee to the parliament and not an actual arm of the parliament. It won’t make laws. Are the Yes supporters even hearing this? Whatever else indigenous Australia lacks today, it is surely not Canberra-based committees and their bureaucracies churning out advisory reports. If committees delivering reports to politicians in Canberra was a solution to indigenous Australia’s problems, indigenous Australia would have reached political and economic Nirvana long ago.
19. I’d vote Yes if I believed all Aboriginal people are uniformly underprivileged today while every non-indigenous Australian enjoys my privilege. But absolutely everyone’s experience of real life is more complex than that. This is a good country that can be improved a lot by attempting to help the people who need it. But we need to help people – not ethnic groupings.
20. My main (but not only) personal involvement with Aboriginal Australia was many years ago as a temporary inhouse native title lawyer at an Aboriginal land council in Queensland. My short career there was illuminating but discouraging. Our taxpayer-funded organisation was chaired by Ray “Sugar” Robinson (whose career famously included a term as a Deputy Chairperson of the Aboriginal and Torres Strait Islander Commission and a jail term for fraud against the Commonwealth). My indigenous colleagues were lovely people but a confronting proportion of them were also Sugar’s friends and relations. Our key focus often felt like internal politicking. Anecdotally, it seems that my insider’s experience of Aboriginal bureaucracy is not unusual. Constitutionally entrenching a Voice to Parliament now – together with the brand-new indigenous bureaucracy which would inevitably be required to support it – would be a triumph of hope over national experience.

Conclusion

Believe it or not, my list of reasons goes on. But if you’ve read this far without being persuaded to vote ‘No’ at this Saturday’s referendum I’m wasting your time and mine persevering.

But let me conclude on a positive note. For all the public handwringing about this ostensibly divisive debate and reciprocal media accusations of bad faith and disinformation, my personal experience in recent weeks has been quite the opposite. I’ve vigorously disagreed with many family members and friends on this issue, but I’ve not yet heard an angry word spoken. Yes, inevitably, there are some distasteful fringe dwellers on both sides but the ‘Yes’ and ‘No’ camps both seem to me to be driven by mainstream Australia’s enormous and very sincere goodwill to indigenous Australians and the need to improve their lot.

I don’t think that popular goodwill will change. Whatever the outcome of this referendum, from next Monday the dust will settle and Australia will start looking at some very old problems with fresh eyes.  And that’s a good thing.