In my book The Indigenous Voice to Parliament – the No Case, I argue that a fundamental requirement of the referendum question would be the inclusion of a specific caveat that advice from the Voice is not binding on government, since that is the repeated claim of all Voice proponents.

That caveat has been omitted.

Voice supporters, such as journalist Chris Kenny, insist that the Voice will be benign because it will only be able to give advice. But that is not what the proposal says. It says the Voice may make representations. But it does not define what ‘representations’ are. To me they seem rather more compelling than simply ‘advice’. Is there a legal distinction between ‘representations’ and ‘advice’?

The fact that the Voice, comprising elected and appointed members from a particular group, derives from the Uluru Statement that demands recognition of some form of Aboriginal sovereignty, makes it, incontrovertibly, a political entity. The constitution recognises the Commonwealth and the states, of which there are currently six. It does not recognise any other political entity, such as the territories or local councils, other than the fact that they may exist. ‘Enshrinement’ of the Voice, in a separate chapter within the constitution will establish an eighth political entity. Or, to be more precise, a third constitutional entity, alongside the Commonwealth and the states.

Voters must ask themselves if they are happy to accept, in our constitution, a new political entity, on equal standing with the states. In fact, Kenny, who was also a member of the senior advisory group of the Voice co-design process, himself made this point, saying that. ‘Former prime minister Tony Abbott – a leading opponent of the Voice, to be sure – neatly argues that recognition of indigenous Australians would not alter the constitution so much as complete it. This is true because the constitution brought together six groups  – the peoples of six colonies  – and the people it overlooked as partners or participants were the original inhabitants.’

Kenny’s justification for supporting Tony Abbott’s statement i.e., that indigenous Australians should have been an eighth partner in the federation, is startling in its naivety – and its potential for mischief. To begin with, the basic premise of Kenny’s contention is wrong. It implies that before 1901 Aborigines constituted their own distinct entity within the Australian polity. That is not so. Aborigines, like the colonists, were British subjects under the Crown in the colony in which they resided. They were not overlooked.

Which brings me to my main point. The claim by all proponents of the Voice is that it would give advice only and that there would be no compulsion upon the government of the day to accept that advice, is naive in the extreme. That limitation would, I believe, be essential for a majority of Australians to support the concept of the Voice, whether it be legislated or constitutionally ‘enshrined’.

But there is a way even that limitation could be compromised.

The Declaration on the Rights of Indigenous Peoples is a resolution passed by the United Nations in 2007. The Australian government, under John Howard, refused to sign this declaration but, in 2009, the Rudd government formally endorsed it. That endorsement stands to this day, which suggests that there is now bipartisan support for the Declaration. It therefore now, arguably, forms part of our common law.

Article 19 of the Declaration (much of which was drafted by Aboriginal activists Mick Dodson and Megan Davis) declares:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

‘Free, prior and informed consent’. I do not believe a majority of Australians would support such a radical proposal, if specifically asked to do so. But a Voice whose advice is not binding falls a long way short of this demand. It is not what the Aboriginal activists ultimately want. As long as the Voice exists in legislation only, it would be possible to avoid implementing Article 19. But if the Voice ever made it into the Constitution, the matter would be taken out of the hands of the government and placed in the hands of unelected and tenure-secure High Court judges.

Activists could appeal a law they considered was not based on ‘free, prior and informed consent’, on the basis that ‘enshrinement’ of the Voice had given constitutional effect to Article 19 of the Declaration, in that it established a genuine ‘representative institution’. They could argue that our obligations under Article 19 over-ride a caveat (which at the moment is not even contemplated), inserted into the constitution after the adoption of the Declaration, that advice be non-binding. It is quite possible that the High Court – which gave us Love and Thoms – could buy such an argument and rule that, notwithstanding any caveat in the constitution, government was bound by its own common law to obtain ‘consent’ for any law that affected Aboriginal people. The absence of any such caveat makes this even more likely.

It is the policy of the Australian Greens, who now hold unprecedented power in our parliament, to legislate this Declaration into statute law. No one, least of all Drs Marcia Langton and Megan Davis, is talking about Article 19 at the moment – that would not fit the narrative. But it is my belief is that once the Voice is in the constitution, demands to legislate the UN Declaration on the Rights of Indigenous Peoples into statute law would follow in a heartbeat. If Labor were prepared to endorse the Declaration, would they hesitate to legislate it if pressed hard enough by the Greens?

With Article 19 at its disposal, a constitutionally entrenched Voice would be a very powerful force – not for good. For always.