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The panel included Aboriginal leaders Patrick Dodson, Noel Pearson, Marcia Langton and Megan Davis. In 2012, they agreed on four principles to guide their assessment of proposals for constitutional recognition, namely that each proposal must: contribute to a more unified and reconciled nation; be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples; be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums; and be technically and legally sound.

From left: Noel Pearson, Marcia Langton, Patrick Dodson and Mark Leibler meet to discuss the issue in 2011. Rebecca Hallas

Dodson, Pearson and Davis later served on the 2017 Referendum Council which adopted these same four principles.

Back in 2012, they recommended: The referendum should only proceed when it is likely to be supported by all major political parties.

This time with the election of the Albanese government in 2022, things changed. The Aboriginal leaders and government decided to go it alone, leaving the Coalition outside the tent. Why? In part, no doubt because three consecutive Liberal prime ministers Abbott, Turnbull and Morrison rejected out of hand the idea of an Indigenous Voice to parliament, the idea first proposed by Noel Pearson in 2014. Peter Dutton was a cabinet minister to all three.

Soon after his election, Prime Minister Anthony Albanese attended the Garma Festival and announced a formula of words as a possible amendment to the Constitution. He said he was open to considering any changes to the proposed wording. The government set up a series of panels including the referendum working group of 21 Indigenous leaders and an eight-member panel of constitutional experts.

The government has released highly-anticipated legal advice on its proposal for an Indigenous Voice to parliament referendum.

The Coalition did not have a seat at the table until this past month when the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum was established. But by then, both the Liberal and National Parties had announced their opposition to the governments proposed amendment.

The prime minister still says he is open to any revised wording. But the referendum working group is not much interested. The government is unlikely to move unless given the go-ahead by the group. The leadership and majority of the Coalition parties are not for changing their No stance. By promoting Jacinta Nampijinpa Price and escalating his own media profile on the troubled streets of Alice Springs, Dutton has placed himself and his party at the front of the No campaign. Whichever way it goes, this referendum is unlikely in the short term to contribute to a more unified and reconciled nation any time soon.

This one and only parliamentary opportunity to bring at least some of the Coalition on board should not be squandered.

Is there a formula of words sufficiently technically and legally sound that key Liberals like Julian Leeser, Simon Birmingham and Andrew Bragg could support? These three, unlike their leader, have shown sympathy for the Voice but have expressed concerns about the clogging up of the workings of government and the risk of ongoing litigation were the Voice to have the capacity to make representations to individual public servants and to agencies like the Reserve Bank.

The government points to the evidence from assuring them that the High Court would never draw an inference that the Voice would be entitled to prior notice and information about proposed decisions of the public service. They give the added assurance that the parliament will have complete control of the Voice, guaranteeing that there would be no clogging of the workings of government.

Another retired High Court judge, Ian Callinan, is not so sanguine. Even the best of lawyers often disagree.

Constitutional scholar , who worked with Noel Pearson on early formulations of the Voice, has told the parliamentary committee that: the only obligation that was ever intended to be imposed was an obligation on the parliament to consider the advice during the passage of certain laws; this obligation on the Parliament was always intended to be non-justiciable; no obligation was intended to be imposed upon the executive government; it was regarded as essential to include machinery provisions that would ensure parliament would not be delayed or impeded in its enactment of laws.

Twomey has told the committee that parliament can say that you make your representation to the executive government by sending all your representations to a particular email address or a particular officer or by giving them to ministers.

Neither the government nor these lawyers want the Voice getting down into the weeds with individual public servants making routine administrative decisions even if those decisions relate to Aboriginal and Torres Strait Islander citizens. The Voice should be dealing primarily with parliament, ministers and heads of government departments.

We might look at the key functions of the much-lauded South Australian Voice which will deliver in person an annual report to parliament, address parliament on any relevant legislation, meet twice a year with the cabinet, and then twice a year with the chief executives of each administrative unit of the public service. There is no need to provide a constitutional entitlement to make representations to individual public servants.

If the assurances of French and Hayne about the present wording are not enough to satisfy Leeser, Bragg and Birmingham, can this Liberal trio come up with a tweaking of the present formula that would satisfy them? And would the referendum working group be prepared to accept the change?

Constitution-making is always about compromise, or at least it has been until now. Labor has tried to amend the Constitution 25 times and has failed 24 times. Having a few Liberals on board could only help in getting the country across the line.

Fr Frank Brennan is rector of Newman College, University of Melbourne, and the author of An Indigenous Voice to Parliament: Considering a Constitutional Bridge, Garratt Publishing, 2023.

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Labor may need to compromise on Voice to win key Liberals support - Sydney Morning Herald