Bills

Anangu Pitjantjatjara Yankunytjatjara Land Rights (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 7 July 2016.)

The Hon. T.J. STEPHENS (15:36): On behalf of the opposition I rise to speak to the Anangu Pitjantjatjara Yankunytjatjara Land Rights (Miscellaneous) Amendment Bill currently before the council. This bill seeks to make significant changes to the governance of the Anangu Pitjantjatjara Yankunytjatjara, known as the APY.

The freehold to lands in the north-west corner of the state have been invested in the Anangu body corporate, which is governed by the APY Executive Board. Many of us in this place, especially those who have been members of the Aboriginal Lands Parliamentary Standing Committee, would acknowledge that many problems have beset the APY Executive Board over recent years. Some of these problems have been personality related and some of them have been procedure related but most have an element of both, so I am not entirely convinced that the problems will be solved in their entirety by this bill.

We know that there are problems with APY governance; in fact, the Mullighan inquiry found that 'poor governance and corruption frequently inhibited the proper reporting of child sexual abuse.' As result, the report recommended that, 'any change to governance of communities on the lands be implemented promptly so as to reduce the extent of dysfunction and possible corruption in the communities'. Clearly this recommendation has been ignored by the government, and the urgency of the situation realised only recently, almost eight years later—hence our scepticism.

Throughout this contribution I will pose some questions to the minister that I would like answers to before we move any further in this debate. I expect that the minister will be able to adequately address these concerns in his summing up remarks.

A lot of changes being sought by this bill are variations to provisions which were introduced in 2004 under similar circumstances. The question I have—and I have made this point previously in this place—is that if the problems are so systemic as to warrant wholesale reform of the land rights act, then why has an administrator not been appointed, especially given that we rushed legislation through this parliament granting the minister the power to do so at the end of 2014?

These are big changes, yet the government wants them rushed through this place this week. The minister knows full well that it is in this place where the bill will face the most scrutiny; therefore, we should be allowed as much time as possible to give that appropriate scrutiny. We have seen the effect of rushing legislation through the parliament, and the December 2014 amendment was a classic example. In fact, my understanding is that the Hon. Ms Franks has amendments which address deficiencies in the 2014 legislation that I refer to.

One of the more fundamental questions I have is: why is there such urgency surrounding this bill, and why is the minister so desperate to see fresh elections conducted under the new rules, given that there are three years remaining on the term of the current executive board?

This bill is the result of a review commissioned in 2013, yet the minister has stated that the APY has made significant progress in improving its administration and financial accountability. My question to the minister is: if that progress is being made, then why are these changes needed so suddenly? Again, if the situation is so desperate, appoint an administrator. Bizarrely, the government listed this recommendation of the Mullighan inquiry as fully implemented on 27 November 2013, yet we are only seeing changes put before this place in 2016.

This review was conducted by the Hon. Dr Robyn Layton AO QC, and the recommendations were to create gender balance on the APY Executive Board, to change the electoral process to improve representation, and to change eligibility requirements for election to the board. This bill seeks to make 12 key changes, which I will endeavour to address now. The first one, as outlined by the minister, is to provide gender balance on the APY board. As this is one of the recommendations of the Layton review, it is hard to argue against, but I do want to know whether this is a reform that is broadly sought by Anangu and not just an ideological pursuit for the minister, his office and his department.

Ultimately, governance of the APY should be driven by the grassroots APY and it should not be imposed on Anangu by a government minister in Adelaide. I seek a detailed answer on the consultation the minister himself made and the conversations he had with Anangu on not only this particular recommendation but this current version of the bill. Ultimately, the governance structure should be reflecting Anangu cultural values rather than the values of the government of South Australia, or indeed the minister of the day. Furthermore, it is my understanding that the bill currently before the council is substantially different from the draft which was consulted upon. As a result, it is doubtful whether there is broad community support for all the changes proposed.

The proposed gender balanced board increases representation to 14 members, seven male and seven female. The bill establishes seven electorates which, according to the minister, will compose a more even population spread. No-one can doubt that the existing electorate boundaries are farcical in some cases, with Watarru only having a population of 42 according to ABS data, and the Amuruna/Railway Bore/Witjintitja/Wallatinna homelands electorate only having a resident population of 14, whilst Pukatja and Amata have populations of well over 400. I am not certain as to how many of these are eligible voters but it certainly gives an insight into the disproportionality of the electorate sizes.

If the government's intention is to create a more even population spread, why then is there almost a 4:1 differential on the value of a vote between Watarru and Pukatja. It may be an improvement but it is far from one vote, one value, which surely should be the aim here.

I acknowledge the remoteness of many of the homelands, and it is important that all Anangu are represented. It is also important to note that many elders live away from communities, on homelands, and their voices are very important when it comes to Anangu governance. So, in order to achieve one vote, one value as close as practicably possible, I ask the minister why it is that he is seeking to remove the requirement to review the electorate boundaries.

Further to the boundary changes, my understanding of the current act is that the minister can make changes to any provision of schedule 3 via regulation, which includes rules for elections conducted under section 9. If this is possible, then why not use the mechanism as outlined in schedule 3, paragraph 30 of the current act? The sad reality is that his department has failed to adequately address the problem of unequal representation since 2005, when the APY Land Rights Act was amended to empower the minister to review the electorate boundaries. It is curious that his department found no need to amend the existing boundaries in three subsequent reviews between 2005 and 2015, yet all of a sudden the minister is arguing that the electorates are unequal and require drastic change.

The difference this time is that the Electoral Commission of South Australia (ECSA) was consulted and it recommended the changes. Surely then it would make sense to keep the requirement of a review but empower the ECSA to conduct it. I would like the minister to address this point, otherwise I will be seeking to move amendments based around this oversight.

The establishment of minimum eligibility requirements to improve the respect and leadership of the board, whilst a noble pursuit, may actually exacerbate some existing problems. The introduction of a category of serious offences which preclude Anangu convicted of such offences from standing for election makes sense and is common with many elected public offices throughout the state; however, the broad nature of the offences drawn will preclude many on the lands from standing.

One offence in particular, that of gambling on the lands, affects many, as does the offence of drinking or supplying liquor on the lands. Problem gambling is chronic on the lands. I am certain that many who do gamble or drink have not yet been convicted and may not be, but if this is to be a precluded offence then the risk is there. I ask the minister to answer the following questions to alleviate our concerns. How many Anangu will this bill render ineligible to stand for the executive board? Will these new provisions prevent any current member of the executive board from standing for re-election? Does the minister have any concerns that these provisions may be used maliciously to prevent certain Anangu from being elected to the board?

The bill provides greater certainty for election dates, with an election to be held between 1 May and 31 August every three years. It will also establish a panel of conciliators to deal with disputes, a power formerly held by the executive board; however, the minister will have the power to refuse conciliation on the grounds that it is a frivolous or vexatious matter. This seems to defeat the entire purpose of an independent conciliator. How can the minister ensure that all disputes are adequately heard and dealt with in a procedurally fair manner? Is the minister satisfied that this provision will not lead to a conflict of interest in some cases? Has the minister considered allowing appeals of decisions made by APY or the minister to the South Australian Civil and Administrative Tribunal (the SACAT).

This bill seeks to provide consistency of eligibility criteria between statutory officers and executive board members and ensure board members live in their electorates for the majority of their terms in office. This later provision will have an effect on Anangu who require long-term medical treatment off the lands. How will the minister alleviate this concern? Residency requirements for voter eligibility are similarly affected by medical problems that many Anangu face, a classic example being dialysis treatment. Regular dialysis, in the vast majority of cases, requires Anangu to live off the lands and in large regional centres, such as Alice Springs, Port Augusta and Adelaide.

The recommendation of the Layton Review to enable absentee voting was largely to address this problem; however, the provisions in this bill establishing an electoral roll require current residency on the lands. There are many Anangu who have lived off the lands for months and years and will not therefore be put on the electoral roll, locking them out from lodging absentee votes. I ask the minister why the electoral roll provisions do not address this recommendation of the Layton Review? I will say that I live in eternal hope that dialysis treatment on the lands is certainly closer than it is further away.

The bill also removes the practice of voting by marbles. Staff at the ministerial briefing indicated that electronic voting may be used to enable illiterate Anangu the ability to vote under the new provisions. I would like the minister to confirm that this will be the case and provide specific details on the proposed voting system. The bill will also provide transitional provisions to ensure a timely election following its assent.

There is no doubt the APY requires good governance, but the opposition's concerns and scepticism with this bill arise from whether these changes will actually provide good governance, as the flaw with any system of government lies not in its rules but in the humans being elected under them. As I indicated earlier, the opposition gives conditional support to this bill on the proviso that our questions are adequately addressed by the minister at his summing up. We look forward to receiving his comprehensive answers.

Debate adjourned on motion of Hon. T.T. Ngo.