Constitutional referendums in Australia are painful and frustrating affairs. Partly because the threshold for a successful referendum is so hard to reach, and partly because the same old tropes get trotted out every time to propel a No vote.

Constitutional law is an area of professional expertise for me. I have taught Constitutional Law in universities in Australia and the South Pacific, where I needed to keep abreast of the constitutional structures of twelve different Pacific nations, including Vanuatu where I was living for some years. Our Pacific neighbours have been through their own long journeys from colonisation to independence and have much to teach Australia.

Before we get into the merits of the current proposal for change, let’s first look back over the history of referendums in Australia. Of forty-four proposed changes since 1901 only eight have succeeded. The reason for this low success rate is partly because of the need for a double majority, meaning an overall majority of voters voting YES nationally in addition to a requirement that a majority of voters also vote YES in a majority of states. This means that it only requires the three smallest states to vote No for a proposal to fail.

So it’s always an uphill battle from the start.

The next reason why so many fail, is more frustrating. Regardless of the merits of any proposal, negativity is easier to popularise, and has much more room to manoeuvre and manipulate arguments than the YES case, which inevitably is constrained by the need to advocate entirely on point.

Over my life I have watched many constitutional referendums fail. It has been frustrating to watch, because every time the same tropes get trotted out to keep our boring old colonial constitution in its outdated and racist 19th century form.

The tropes that get used every time are to tell you to vote No for the following reasons:

1. I don’t understand law and the constitution (there is information available)
2. There is not enough detail (this is primarily a question about values)
3. I don’t trust politicians (neither do I which is why an Indigenous Voice is a good idea)
4. The proposal is not perfect (but it is a positive step in a very long journey)
5. I can think of a better idea (we might all think that, but this is a referendum based on years of consultation)
6. The proposal might have some unseen magical future effect that can’t be predicted (that’s exactly how the universe works)
7. It’s a conspiracy and is designed to do something secret and evil (even though it’s an exhaustively transparent process)
8. I feel like a radical and an individual when I vote no (it is actually more radical to vote YES)
9. I’m actually a right wing conservative who at least has an honest desire to resist change and maintain privilege so I will vote no (at least you admit it).

I respect that there is a range of opinions on the current referendum (especially the broad range of opinions being expressed by First Nations people) but the actual question that you need to answer responsibly as a voter when the time comes cannot be genuinely addressed by any of the first 8 tropes above. If number 9 is for you, well, at least you are admitting it.

The only real question you are being faced with is whether you would prefer to keep our outdated and racist nineteenth century constitution in its current form, or whether you would prefer to see an Indigenous voice to parliament permanently enshrined. Because make no mistake, if the referendum fails, the only outcome is that the constitution remains unchanged.

We can try to improve on what we have or we can not do so, it’s really that simple.

Also beware of the false dichotomy argument. It’s not a choice of voice vs sovereignty, or of voice vs treaty, these are false dichotomies. The unresolved arguments at international law about the very real flaws in Australia’s colonial project will remain unaffected by the outcome of this referendum, and the process of treaty, similarly is one that is envisaged by the Statement from the Heart as part of the core work of a Voice to parliament.

Several of our Pacific nations neighbours, who have more modern constitutions than Australia already feature a version of the Voice to parliament, that is intended to enshrine a custom voice in the constitution. Vanuatu, Fiji and the Cook Islands for example already each have a council of custom chiefs that has an advisory constitutional role.

Another ploy by the No campaign is to complain of a lack of detail. Constitutions are meant to be low on detail and big on values, so your choice is a values choice about whether you want to see an indigenous voice to parliament…. Or simply not at all.

You may well feel that the proposal does not go far enough, you may well feel that it will be little more than token, but neither of these arguments of limitation in themselves are reasons to keep our constitution unchanged. It can’t be helped that proposals for change need to be fairly moderate to have a chance of succeeding. The rhetorical allure of popularised negativity experienced in each and every constitutional referendum shows us how hard it is to succeed, so by necessity, proposals for change need to be as modest as possible (although I personally think the voice to parliament is quite fundamentally significant).

Cast your mind back to the republic referendum. We went into that one with a clear majority preferring to have an Australian rather than monarchical head of state, but the corrosive popularisation of negativity ultimately defeated the proposal and what we have as a result is King Charlie still as our head of state. We disnt get a better republic as a result, we got nothing at all. If the no vote succeeds, nothing changes, and that’s just how the conservative white racists in this country want it to be.

I know Australia’s constitution well. It is a very limited document, basically a compact of federation written up by the colonial equivalent of the current state premiers prior to 1901. It was written in an age of very overt racism particularly against our indigenous peoples as well as against Chinese settlers at the time. Australia does not even have a Bill of Rights partly because these old white politicians in the nineteenth century were worried that it might have impacted their ability to enact laws to discriminate.

A voice to parliament may not be perfect, it certainly won’t magically fix the major problems faced by First Nations Peoples here, but it can provide a platform for progressing First Nations’ views in the nation’s capital that is protected by the Constitution from being dissolved at the whim of future politicians.

It can put Australia in better company with our Pacific nations neighbours, who will be watching very closely how we vote, and along with the rest of the world forming a picture of whether Australia has the will to move forward on resolving its colonial legacy or whether we want to remain stuck in the nineteenth century forever.

First Nations people will have their own range of views and that’s to be expected of any diverse group and respected. But the task facing people with a settler heritage is to really ask ourselves, do we want to see the beginning of national reconciliation or do we want to keep our constitution frozen just the way those white racist men in the nineteenth century designed it. Your call.