Jack Waterford | Why the Voice 'yes' case should focus on Peter Dutton

That might be risky, in part for "going negative". It would, on the other hand, be focusing right on the core of the "yes" case problem, and the fundamental wickedness and mischievousness with which the "no" campaign is lying to voters and preying on popular anxieties. Dutton cannot distance himself from the way the "no" argument has been made, including by a few prominent Indigenous advocates and some of the more egregious non-Indigenous leaders of the "no" campaign.

To be fair to him, he hasn't tried much. He simply cannot avoid the logical consequences and must take responsibility for the way that many of the "no" arguments are code and dog whistles for unambiguously racist positions.

Some months ago, Dutton seemed to want to make the Voice a referendum on Anthony Albanese. Not on Albanese's Indigenous affairs policies, or his ideas about the Voice, but about his general record in government. This way, perhaps, he could sop up all the dissatisfaction against Labor in office, assuming that surely the Albanese honeymoon would be over by then.

The honeymoon may well be over, but it hasn't led to an outpouring of affection for the alternative, let alone for the alternative prime minister. It could also be a campaign against "wokeness" - at which red blooded Australians could express their distaste for all the touchy-feely stuff that all right-thinking policemen hold in complete horror.

It hasn't worked out like that, not for want of trying. The biggest obstacle to any sort of success on such lines has been that the Coalition is still rooted in negative tactics, with neither a plan nor a strategy for getting back into government nor for doing anything once it gets there. Dutton has not humanised his image. He has made no policy shifts focused on wooing back voters who deserted the Liberals for the Teals at the last election. Neither he nor the virtually unsellable Angus Taylor have projected any alternative economic programs, nor have they failed to capitalise much on popular discontent about interest rates and the cost of living.

They may have had a little more success this week on Labor's prevarication on Qantas. When Abbott devised his (successful) strategy of opposing everything that Julia Gillard did, he was able to claim it was in response to her lying election campaign, and, in effect, a loss of Labor's moral authority to govern. The same tactics in different circumstances do not seem to be working for Dutton.

But it is the Voice referendum that seems to show most starkly the simple negativism behind the Dutton style. The official "no" campaign scarcely contains a single valid argument that will stand up to analysis. Most of it turns on misrepresentation and assertion against the evidence. A lot of it involves dog-whistling about a host of negative perceptions about Indigenous Australians, and the belief that such "facts" as support these perceptions will get worse if we are to have a Voice.

The underlying "facts'' - judging by phrases Dutton himself has used in the campaign - are of squalor and family and community dysfunction in Indigenous communities, a law-and-order crisis calling for a firm hand rather than mollycoddling, and a crisis of Indigenous families failing to take charge of and failing to discipline feral children. It's the victims' fault, not least for being feckless and irresponsible, and failing to take charge of their own lives.

This is the black-and-white view of the unembarrassed ex-cop whose prejudices have never been re-examined or opened to new thinking. It is the perspective of the Joh Bjelke-Petersen era, or the simplistic solutions of the disastrous 2007 Intervention in the Northern Territory.

In one sense, one could excuse some of the ignorance by pointing to Dutton's lack of actual experience in the area, beyond simple absorption of the collective wisdom of generations of Queensland police. He had run-ins with Indigenous delinquency, but nothing he did or learned personally suggested the slightest acquisition of insight, sympathy or understanding. It's ever more the pity because in some jurisdictions some police are taking a lead in the community, including in dealing with long legacies of distrust, police lawlessness and angry and disaffected children, young adults and domestic violence.

Peter Dutton has the luck - if it is to be called that - to have a rich tapestry of official "no" advocates to amplify - and sometimes make explicit - the underlying messages of the "no" campaign. He has also permissioned thousands of Australians - typically older whites from the days of the Anglo-monoculture - to articulate continuing and deeply held hostilities towards Indigenous people.

There's nothing new about this animosity but it has been mostly submerged for the past 60 years, suppressed not only by anti-discrimination laws, but the open disapproval of younger, better educated Australians and by the impact on Australian culture and tolerance of large-scale immigration. It is now back out in the open - accentuating a good deal of community tension. Whether the referendum succeeds or not, hosing down an upsurge in racial hatred is a major task for years to come - the moral bill for which will lie at Dutton's door.

The contemptible thing about it is that while the feelings may have reflected Dutton's background and instincts, he probably did not intend to incite hatred of and indifference to the Indigenous situation. Putting down First Nations people has been just a consequence, albeit one that was predictable. The policy to have a Voice was, after all, originally Coalition policy. Dutton upended that for simple and crude political purposes - to make life harder for the Albanese government.

Dutton and other Liberals are aware of the significant international damage that will be done to Australia's reputation if he "triumphs" at the referendum by securing rejection of the proposal. The most significant damage will probably be in Asia and Oceania. But it will also be among the citizens of countries with which Australians like to compare ourselves, such as in Britain and western Europe.

And it will also be used with telling effect by countries such as China, who like to remind others, including people in African nations, that nations of the west are hardly exemplary in their tolerance and respect for national minorities. Awareness of this international reaction - as well as some concern about the impact among moderate liberal opinion in Australia at the crudity of the debate from the "no" camp - is why Dutton is now suggesting a further referendum containing only constitutional recognition without a Voice component. It is unlikely to fool anyone.

The case against Dutton is quite simple, though to avoid the deliberate misrepresentations and distractions inevitable in any political contest, it is important that one say what it is not. The referendum question is not a moral question. No one should be condemned simply because they are unconvinced by the case for "yes", or resolutely in favour of voting "no". Dutton, like any citizen, is entitled to vote "no". But he is the leader of a political party, as well as the author of its tactic to be negative, and, in effect, the leader of the "no" campaign.

As such, he is accountable for the decisions he has made, and the arguments he has put forward. Incidentally, no moral question usually arises when politicians use specious arguments, ignore cogent matters argued by others, or lie or make representations of fact that are doubtful. That's just politics. But those who go in this direction must accept that voters are not stupid, and that some will punish lying, exaggeration and distortion. It's not, usually, any type of moral or secular sin.

But many people would agree that there are exceptions to this principle. One is using, or suffering to be used, racist arguments. It's been a no-no, here or abroad for at least 50 years. Arguments which diminish, demean, insult or dispute the citizenship, or natural rights of people of any other group, ought to be completely out of the ring in Australian political contests. We are past that. We are better than that. And we have ample enough experience, both from here and abroad, of the damage that is done to others, and to ourselves, by allowing the use of discriminatory and false generalisations about others.

It has been at the root of serious injustice to groups and to individuals, including children. At times some racist attitudes and practices have been official policy, endorsed and adopted by the political (and, sometimes, the religious) establishment. But as Australia has matured as a nation, and as it has witnessed the development of human rights law elsewhere, we have adopted laws and customs, and rules of engagement, which flatly reject the legitimacy of using insult and abuse, or arguments undermining the equal citizenship of all.

Supporters of the "yes" vote deny that adopting the amendment will change the legal or constitutional status of Indigenous Australians or give them any rights not enjoyed by all other citizens. The purpose of the proposal, they say, is to recognise that the Australian nation was formed on the lands of people who had been settled here for more than 60,000 years.

It also asserts that the voice of the original Australians should be heard in making decisions affecting the nation, most particularly decisions affecting Indigenous people themselves. But the "right" that conveys - the right to be heard by government and Parliament - is not a right that Indigenous Australians will have while other Australians do not have it. All Australians have a constitutional right to make representations to government and the parliament.

Committed "yes" voters complain that "no" advocates have been able to make vague suggestions that somehow all non-Indigenous Australians will suffer some diminishment of their citizenship and their rights if the amendment is to succeed. But they have been unable to point to any practical or theoretical examples of that happening.

They also say that the business of every agency of the executive government - even the Reserve Bank - will be disrupted by a new legal requirement to consult Indigenous interests on every matter in their agency's purview. "No" advocates have also predicted that a "yes" vote will be the cause of much litigation because it will confer "rights" on Indigenous Australians that will inevitably be litigated, and that it will be responsible for the creation of vast armies of bureaucrats established at great fresh expense to give effect to demands emanating from the Voice mechanism.

Most constitutional lawyers, including former High Court justices and chief justices, dispute that the amendment will give rise to any justiciable rights at all. And advocates for the "yes" vote point out that neither Parliament nor the government is to be obliged to follow advice coming from the Voice mechanism: at the very most, it may have a duty to listen.

In this the Voice mechanism will have no more rights and powers than any citizen making representations to government. Or, perhaps more significantly, no more rights and powers than the massive armies of lobbyists, businesses, vocational bodies and pressure groups that have long had the special ear of government.

Some might question what the point is of having an expensive referendum that grants no fresh rights and operates more in symbolism than with any practical effect. The answer, from both First Nations groups and the government (indeed, at one time the Coalition as well), is the acknowledgement that many of the policies and programs affecting Indigenous Australians have failed to sufficiently consult those supposed to benefit from them. Or there have been notional consultation and engagement processes, only to see government pull the rug from under Indigenous organisations and programs.

On some occasions, moreover, government has used the "race power" of the Constitution not to benefit Indigenous Australians, but to strip them of rights they already had. Adoption of the Voice, in part, represents a commitment from the community, from politicians and from government that it will consult more effectively and more respectfully those intended to be helped by policies and programs.

The rhetoric of the debate also involves a rededication of government at all levels to Closing the Gap programs. These are not yet successful in addressing the marked disadvantage that many Indigenous Australians suffer in health, education, participation in the economy, lifespans and access to services. Far from being privileged citizens with extra rights, Indigenous people have always been last in the queue.

MORE WATERFORD:

The significance of the repeated reference to Closing the Gap programs, and a poor record of government consultation and effectiveness in programs directed into Indigenous communities serves to underline the disadvantage many First Nations people suffer compared with other Australians.

Whether in Australian cities (where most Indigenous Australians live), in rural and regional towns, or in more traditional and remote communities and settlements, Indigenous Australians are the most obviously disadvantaged people in the nation.

By almost any statistic - of health status, educational achievement, employment status, income, or ready access to government or community services - Indigenous Australians have always been at the bottom of the pile. For some, the situation is improving, and there is now an established Indigenous middle class (which incidentally includes most of the prominent "no" campaigners with Indigenous backgrounds). Likewise, there are Indigenous senators and members of Parliament, in the professions and in industry. Their success is welcome but does not make up for those who are still left behind.

Albanese should be taking the battle to the enemy. The enemy is Dutton. It is not Nyunggai Warren Mundine or Jacinta Nampijinpa Price, Tony Abbott, Gary Johns or even Lidia Thorpe, all of whom can be taken on by others engaged in the debate.

As between Albanese and Dutton, it should be a battle without quarter, one focused particularly on fixing Dutton with the responsibility and the accountability for both the strategy with which he entered the battleground, and the tactics he and his side are using. Whether the referendum is won or lost, a Dutton standing afterwards on the battlefield must be counted a signal defeat for Albanese and the Labor Party.