In the shadow of the National Library, inside the Parliamentary Triangle, the Yes23 organisers could scarcely believe their eyes as the crowd built for Canberra’s version of the Walk for Yes rally and march.

The mood was upbeat as Aunty Violet Sheridan, a Ngunnawal Elder, welcomed the estimated 5000 supporters, four times more than registered, and thanked them for accepting the Uluru Statement from the Heart’s invitation “to walk with us in a movement of the Australian people for a better future”.

The crowd cheered and walked 10 abreast up the hill to Parliament House. Similar scenes were replicated around the country’s capital cities and towns. For some commentators this represented a magnificent last hurrah for the referendum, as the polls suggested its chances for success were sliding. That’s not the way the campaign sees it, nor one of the campaign’s pollsters. They hope it is the beginning of a comeback.

Researcher Peter Lewis, of Essential, says even though his latest poll has “No” with a slim majority (51 per cent) for the first time, this is not a prediction of the outcome in four weeks’ time. The trend is against “Yes” in his poll, at 41 per cent with 9 per cent undecided, but digging deeper shows the results are within the poll’s margin of error, at plus or minus 3 per cent, and the data suggests 29 per cent of voters are still persuadable.

Lewis says unlike in a federal election, where a party perceived to be struggling pulls back to “save the furniture”, in a referendum “there is no furniture to save”. It is all or nothing and the campaign is determined to “try and smash through the wall”.

Canberra residents are generally thought to overwhelmingly favour this ambition, but voters in the territories suffer an anti-democratic bias making them second-class citizens when it comes to referendums. Their votes are excluded from the double-barrelled majorities needed for a referendum to succeed. This discrimination against more than 700,000 Australians is no longer tolerable and points out the anachronistic machinery put in place just over 122 years ago.

The Fraser government, with the support of the Whitlam opposition, went some way to address this with a successful referendum in 1977. It recognised the right of territorian Australians to participate in the popular vote but did nothing to end the absurdity of also needing a majority of votes in four of the six states for a constitutional change to succeed.

It is especially galling in the current plebiscite because of the way it disadvantages the Northern Territory. The territory has the highest proportion of Indigenous Australians, at 30 per cent, of any jurisdiction. These citizens will be given only half a say in the status of their heritage.

This vestige of the struggle to get the six original colonies to federate is no longer in line with contemporary democratic thinking. Ironically, it is the very sentiment the “No” campaign is trying to plug into by claiming a constitutionally enshrined Voice to Parliament sets up two classes of Australians.

The Constitution already does that – perhaps unwittingly, given that in 1901 the Northern Territory was still part of South Australia and a capital territory was still only an ambition. Now that both territories are thriving realities, however, we urgently need a national conversation to address not only this unacceptable anomaly but also the double majority requirement.

Although the trend in all the polls so far is against “Yes”, it is entirely possible even on these results that the referendum could be a close-run thing. In the 1951 Menzies anti-communism referendum, the states were tied at three-all and, even if the popular vote went with one side or the other, the referendum was lost with no provision to break the deadlock. As it turned out, “No” just scraped over the line, with 50.56 per cent of the vote.

The legacy of this flawed arrangement is the enduring advantage it gives opponents to change, even when their arguments are contradictory and incoherent. Supporters of “No” in the federal parliamentary Liberal Party were scratching their heads over the performance of one of their leading campaigners, Nyunggai Warren Mundine, at the weekend. He broke ranks on treaties and Australia Day, wanting it moved.

“Just dumb,” was the reaction of one frustrated “No”-voting Liberal MP to Mundine’s appearance on the ABC’s Insiders. There Mundine claimed treaties, which he’s always supported, were more likely if the referendum failed. When pushed, he reiterated: “Yeah, because then, on 15 October, if it is a ‘No’ vote, that’s when the real work starts.” How an opposition would do this work was left unspecified.

Three days earlier the Coalition’s other leading “No” figure, Senator Jacinta Nampijinpa Price, rejected the whole idea “because you can’t have a treaty with your own citizens”. No, but you can have an agreement referred to in the Uluru statement as a “Makarrata”, which is “a coming together after a struggle”. Surely this is the very nub of reconciliation after the documented struggle First Peoples have endured since 1788.

The demonisation of “treaties” is a key weapon in the “No” arsenal. It implies Indigenous Australians would unilaterally impose them with demands for compensation. This is a “stupid” argument, as Marcia Langton rightly categorised it, but one designed to trigger prejudice and resentment.

Peter Dutton was quick to pull Mundine into line. He ruled out ever entering into treaty negotiations if he became prime minister because he didn’t want to spend “billions of dollars … on treaties”.

Dutton said he would prefer to see the money spent on practical outcomes for children in remote areas. It’s a pity that in the nine years the Coalition was in government, and with Mundine as a key adviser, it ripped $500 million out of Aboriginal programs. Many of those programs, according to Warren Snowdon, the former long-time member for the NT seat of Lingiari, were achieving real results in remote areas.

It took only a day for Mundine to sort of walk back his treaty views – sort of, because he is still talking about “Native Title and land rights”. He also appears to now want to keep Australia Day on January 26.

Mundine’s shapeshifting and backtracking were matched by Dutton’s flailing commitment to a second “Voiceless” referendum if this one fails. It took a couple of weeks but he appears to think it’s not a good idea anymore. What this does for his credibility is a complete mystery.

Historian Frank Bongiorno says the “No” side is following the path of negative campaigns as described by the late John Hirst. “One grasps for any argument that might work with voters. Coherence or consistency play no part at all,” he says. “Mundine today is a textbook case.”

For her part, Price is consistently offensive. She punches down on her own people and, as Tony Wright wrote in The Age, “she is a weaponised conservative woman who can say things out loud that white conservatives haven’t dared to say since the early 1960s”.

She shamelessly applies racial stereotypes denying colonisation had any part in ongoing trauma or disadvantage. This flies in the face of serious inquiries and royal commissions over the past couple of decades.

The fact her Nationals colleagues and some Liberals cheer her on in all of this, while at the same time calling for respect in the campaign, is brazen hypocrisy. It is probably no coincidence that the heirs of the murderous squattocracy inevitably lead the charge whenever the justice of Indigenous Australians’ claims is recognised, as it was with the Mabo and Wik judgements.

Price’s often repeated argument against constitutional recognition via the Voice is that it would be a form of apartheid – separating the Aboriginal race from everyone else and giving them special privileges. Apart from the now discredited anthropology of intrinsic racial differences, with white superiority at the top of the evolutionary tree, this ignores the way our society already works. Multiculturalism is an Australian success story. Sixteen years ago John Howard himself saw that First Peoples could have a “special (though not separate) place within a reconciled, indivisible nation”.

It also ignores that it is not race that makes First Peoples special but their prior history on the continent and their bloody dispossession of it. Price’s colleague, Barnaby Joyce, bemoaned the “Yes” case this week for making other Australians “feel dirty”. Apparently the presence of overt racists on stage at events and in key positions in the “No” campaign, and the defence of them in the name of “free speech”, is not tearing at the fabric of our country and posing serious harm for First Nations people.

Midweek, after some “Yes” protesters hurled abuse at people turning up to an Adelaide rally, Price and Peter Dutton blamed the prime minister. Dutton said Anthony Albanese had “created a dynamic in Australia … pitching one Australian against the other”.

This is breathtaking, especially as Dutton has advanced nothing practical to progress reconciliation nor how he would give a say to Indigenous Australians on matters that affect them. Instead he has led the charge against the proposed recognition, giving a wink and a nod to ugly prejudice along the way.

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