Anangu Pitjantjatjara Yankunytjatjara Land Rights (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 26 July 2016.)

The Hon. J.A. DARLEY (12:50): The Anangu Pitjantjatjara Yankunytjatjara Land Rights (Miscellaneous) Amendment Bill seeks to change the APY Executive Board. The bill makes changes to the composition of the board, the way in which the board is elected, establishes new electorates and who is eligible to vote and be nominated for the board.

I understand these changes were brought about as a result of a targeted review which was headed by Dr Robyn Layton. I, along with my other colleagues, have been contacted by stakeholders who raised concerns that the bill which is presented before parliament today is quite different from the bill that was presented for consultation. The government has provided a response to these issues; however, I want to put on the record a number of matters which may still present a problem.

First, I am concerned about the electoral roll which will be kept by the Electoral Commissioner and the method of voting. I understand that the Anangu will need to be enrolled to be eligible to vote and that the voting system has changed from one which involved marbles and pictures of the candidates. In our briefing, the government explained that this would allow a greater number of people to vote, especially when they are absent from their electorate as Anangu will not have to physically be at the polling booth to cast a vote. However, I hold concerns that low literacy rates of Anangu may result in a smaller number of voters due to the failure to enrol or a lack of understanding of how to cast a vote correctly. If the minister has details of the campaign that will be undertaken to advise Anangu of the new requirements I would be happy to hear them.

Stakeholders have also raised issues with the expansion of offences which are defined as a serious offence as these now include drug, alcohol and gambling offences. The concern is that the inclusion of these offences may exclude a large number of people who, with the exception of making bad decisions in their past, would otherwise make great community leaders. I understand that the offences listed are not summary offences but a person must be found guilty of a serious offence and that these offences are consistent with the APY by-laws. I hold concerns that this list of offences are able to be changed by regulation at any stage and I am not supportive of this.

Whilst I am not putting into question the current minister's intentions, the sceptic in me could see a situation where a future minister could use this as a tool to deliberately exclude an individual or individuals from standing for the board. It is becoming more and more common for this government to say that they will put details into regulations. This is bad practice. It avoids parliamentary scrutiny and many matters are changed at the discretion of the minister or at the whim of the government.

Again, I am not specifically indicating that this will be the case for regulations relating to clause 4 of the bill but I am just putting on the record my objection to this practice of dealing with matters by regulation. With that, I support the second reading of the bill but reserve my position on the bill.

The Hon. T.T. NGO (12:53): I rise to speak on the Anangu Pitjantjatjara Yankunytjatjara Land Rights (Miscellaneous) Amendment Bill 2016. This bills seeks to amend the APY Land Rights Act which legislates for the overall governance and administration of the APY lands by the APY Executive. The act itself was enacted 30 years ago and established what is now referred to as the APY Executive, an elected body comprising and representing all Anangu.

In 2013, a limited review of the act was conducted, headed by a former Supreme Court judge, the Hon. Robyn Layton QC. It made a number of important recommendations. Most notably it recommended, first, that a gender balance was required on the APY Executive Board. Secondly, that the electoral process improve representation for all Anangu. Thirdly, as well as changes to candidate eligibility requirements for election to the board.

As the Chair of the Aboriginal Lands Parliamentary Committee, along with fellow members of that committee in this place—the Hon. Tammy Franks and the Hon. Terry Stephens—we have come to understand some of the difficulties that have existed in the administration and financial accountability of the APY Executive. I want to specifically acknowledge minister Maher's contribution to addressing these concerns. Since taking up the portfolio, minister Maher has implemented further conditions on the release of government funding to the APY Executive, including:

Implementing strict delegations for approving payments, with only the general manager having authority over approval.

Undertaking of an independent audit of financial accounts for the period July 2014 to December 2014.

Requiring specific documentation to be provided on the APY website, including minutes of the APY Executive Board meetings, monthly financial reports and annual reports.

Whilst I am supportive of this bill and the nature in which it has come about, I note that Sue Tilly and Paper Tracker have raised a number of concerns, and I thank the minister for responding to all of those. One of the key recommendations of the Layton review was that the number of APY Executive members should be constituted by 50 per cent women and 50 per cent men. This is certainly another desirable outcome.

I am supportive of this bill on the basis that it will result in improved outcomes for the Anangu people, with improved parameters to facilitate the election of future APY executives.

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (12:56): I wish to thank all members who have made a contribution to this bill and certainly other members from another place and more generally who have also spent extensive time discussing this bill. I note that there are matters that are not always easy to wrestle with in terms of governance of the APY lands. It is a culture that survived tens of thousands of years, whose institutions and traditions do not always easily mesh with what we have in terms of government structures.

I know in my dealings with APY, on and off for about a decade and a half, I have come to very well appreciate that we try with the best of intentions, but we regularly need to refine what we do in terms of how we relate to APY. Certainly, I do not think it would be wise to ever say any changes to the APY act are a finished product and that is all that we need to do. This bill has been subject to a significant amount of consultation. Those consultations, along with the recommendations from the Layton review, have informed the development of the bill that is in front of us at the moment.

The consultation was started by the former minister in 2013 through the commissioning of an independent limited review of the APY act. This review looked at improvements to the election process and the make-up of the board. The independent review panel consulted extensively on the APY lands throughout 2013. The panel visited the APY lands eight times for 24 separate meetings. In April 2014, the panel submitted a final report; it was provided to the APY board.

The recommendations from the Layton review were a core part of the development of the draft 2015 bill for consultation. From December 2015 until May 2016, consultation on the 2015 bill was undertaken by departmental staff, who conducted 22 feedback sessions with key APY leadership groups on the APY lands and in Alice Springs, including the APY Executive, members of the Law and Culture Committee and chairs of community councils. Consultation also occurred with government and non-government stakeholders in Adelaide and Port Augusta and also with a range of other groups.

I want to now address some of the specific matters that have been raised by members in their second reading contributions in this place. I might just list through the issues and give a response to each. An issue raised by the Hon. Tammy Franks was in relation to section 130 of the APY act, that is, the suspension of the executive board and appointment of an administrator.

The view that there should be a 12-month sunset clause I think has previously been agitated, and removed perhaps altogether as part of deliberations, and I understand the opinion of the honourable member and, as I said earlier, it is not always easy, and reasonable people will have different views on how to achieve the best outcomes. The Hon. Tammy Franks' view is not one that I or the government shares and we do not intend to water down the provision in relation to the administrator in the act.

The manner of conciliators being appointed was raised by the Hon. Tammy Franks and certainly there have been discussions over the last month with the opposition in relation to this, and I will foreshadow government amendments that we intend to lodge this week. In relation to the appointment of conciliators, those amendments will have the effect of appointing conciliators who have qualifications and experience in law or mediation to ensure the appointment of conciliators of a high standard, who have relevant professional qualifications and a practical understanding, and on receiving application for conciliation the minister must refer the matter to a member of the panel for conciliators for them to determine whether the matter has merit. This ensures that the merits of any application for conciliation will always be determined by an independent and impartial professional.

If the matter has merit, then the minister must appoint a conciliator from the panel, but not being the conciliator who made that initial determination. This will ensure that the conciliator appointed to hear the matter comes to it with fresh eyes, without being influenced by previous inquiries into the merits of the matter. I believe these amendments will strike the right balance between taking the decision to decide whether a matter is frivolous or has merit out of the minister's hands and putting it into the hands of a relevant professional.

The minister's power to remove a conciliator is necessary in circumstances where, for example, a conflict of interest arises during the course of conciliation or the conciliation is failing to find a workable solution. Having the flexibility to appropriately respond assists in more timely and satisfactory conciliation processes.

There was an issue raised about the number of people currently on the APY lands rights electoral roll compared to the state electoral roll. This was also a matter raised by the Hon. Terry Stephens in his contribution. An APY land rights electoral roll does not exist. There is no such thing, and that was certainly one of the central criticisms arising from the Chief Justice's judgement in the recent case of Richards v Paddy, which the current amendments seek to address.

I can inform the chamber that I am advised that there are 1,459 electors enrolled on the state electoral roll for a locality on the APY lands. I must caveat that by saying that the state electoral roll does not identify if an elector is Anangu, so included in that 1,459 would be a very small figure of non-Anangu people living on the lands: schoolteachers and other such service providers. In the 2014 state election, 619 electors voted at polling places on the APY lands. I will talk later about the electoral roll and using the state roll.

There were concerns raised about the wording of the three-month residential requirements and how they will operate. Using the state electoral roll as the base, it will be the same as it is for state elections. In state elections, being able to vote in a particular electorate is evidenced by being on the electoral roll in that electorate, and that is what we will apply for APY elections. There have been discussions with the Electoral Commissioner, who, I have to say in my experience, has been very professional and diligent in running elections on the APY Lands, and they will run an election campaign in the lead-up to the first APY election which, for the first time, will use—

The Hon. T.A. Franks: Educational campaign.

The Hon. K.J. MAHER: —an electoral roll. An education campaign, indeed. There were a number of questions raised by the Hon. Terry Stephens. Taking them in order: why has an administrator not been appointed, especially when the power was given by this chamber some time ago to do so? I will reiterate, as I think I have said a number of times in this place, a number of times to APY and a number of times to the media, when I have been asked, that there is no doubt that improvements in government's accountability and transparency are being made by APY and the administration, but I still consider the appointment of an administrator an option should those improvements stall or not continue. I am not opposed to an administrator being appointed, but while there have been improvements and those improvements continue, there is not a necessity. But I do not have any opposition to appointing an administrator, should it be necessary.

The Hon. Terry Stephens then asked why there is urgency in this bill and why we are keen to have fresh elections conducted under these new rules, given that there are three years remaining of the current term of the executive board. I do not agree with the proposition that the changes are being made suddenly. I think this bill is the culmination, as I outlined at the start, of a number of years of consultation, and a lot of consultation in relation to these changes. I do agree that proper processes should be adhered to, but I do not think that these changes should be unnecessarily delayed.

Certainly, I think it was made very clear before the last APY elections that once those recommendations from the Layton review were implemented there would be fresh elections. I think everyone who was elected last time would be aware that as soon as these changes were implemented, the intention was to go to fresh elections. Ideally, I would like to see changes implemented and fresh elections held this calendar year. Given the nature of the remoteness and the necessity for education campaigns, I can see that if we do not have this through by the winter break that will not happen. If that does not happen, I am keen to have elections held as early next year as it is practicably and culturally possible to do so.

The Hon. Terry Stephens asked for a detailed answer on what consultations the minister himself had had with Anangu, not only on the recommendation about equal gender balance but also on this version of the bill. Over the last 18 months, I have spent a great deal of time in the APY lands. I think I have made about half a dozen visits, ranging from short stays of only a couple of nights to longer stays of nearly two weeks, staying in communities across the APY lands. I have had a range of meetings over the last 18 months in all the major communities: Indulkana, Mimili, Pukatja, Kaltjiti, Murputja, Kanypi, Nyapari, Pipalyatjara, Kalka and a whole lot of smaller communities and homelands in between Indulkana and Pipalyatjara and all other points. I have also had a lot of meetings in Adelaide with Anangu and representatives of Anangu.

It is fair to say that in the many meetings I have had these proposed changes to the APY act have been raised with me quite a number of times. There are a few messages that have been pretty consistent with everything that has been raised with me, firstly, on the issue of gender balance, which was the first part of the question. The overwhelming views that have been expressed to me and that I have sought out when talking to people about this are of very strong support. Of the dozens of times that the issue has been discussed with me directly, I could count on one hand the number of times any objection has been raised to the issue of providing gender balance. I have actually been surprised at some of the meetings I have had that the elders who I thought might have been opposed to it have come out strongly and supported it.

One of the other clear messages is a very strong desire for there to be that prequalification, that is, the recommendations in the Layton review and what is in the bill in terms of criminal history checks for people to be qualified to be a member of the APY Executive. The third thing that has been most strongly related to me is very strong feedback for some form of electoral roll, for some way for APY not to be treated differently from most other groups when they vote in these sorts of things, whether it be local council, state or federal elections.

As I said, there was very broad support for equal representation of men and women as outlined in this bill. The version of the bill that is currently before the house reflects the outcomes of not just my consultations but the original consultations with the Layton review that the department has done and also consultations with service providers and people like the Electoral Commission to come to the version of the bill.

I said it when I introduced the bill, but I think it is fair to say that Anangu now expect us to implement this bill. Some of the comments on the last round of consultations have been to the effect of, 'We've told you what we think. Why won't you do what we say now?' It is always about striking a balance between enough consultation involving Anangu in the decisions that affect them but also striking that balance between not going back and not keeping faith with what you have been told and implementing it.

The Hon. Terry Stephens asked about gender balance on the APY board. I will just reiterate, as I said earlier that, in all my discussions and in discussions that others have had, that has been overwhelmingly supported. The Hon. Terry Stephens also raised an issue about one vote and one value and differences of populations across the APY lands. Under the proposed bill, the establishment of the seven electorates and their community composition was recommended by the APY Executive, taking into account cultural considerations about groupings of communities and homelands.

The proposed electorate populations are now much more closely spread than they have been in the past. The population of the previous 10 communities or electorates ranged from very small electorates, with 14 in the smallest—and, of course, not all of those 14 voted—to large electorates like Amata of close to 500. Four of the 10 of the communities or electorates as it currently stands had less than 120 people in them.

With the creation of seven electorates, the population is now much more evenly spread, with the smallest community of Kanypi, Nyapari and Watarru being 151 people, but I acknowledge that there will always be some variance. The nature of communities—where certain communities go and where you draw a line, particularly with homelands and smaller communities—will always present some difficulties. Having the exact numbers in each electorate would be an extraordinarily difficult task but I am pleased with what is proposed. It makes those seven electorates much more even in their populations.

The PRESIDENT: May I just say, Hon. Mr Maher, we are getting on a bit.

The Hon. K.J. MAHER: I will wind up very quickly, Mr President. The Hon. Terry Stephens also asked about the requirement to review electoral boundaries. It is the intention of the bill to smooth the process of electoral boundaries, ensuring the boundaries reflect the make-up at any time. I can inform the honourable member that, among the amendments that we have foreshadowed this week, we will lodge an amendment to make sure that that happens prior to every election to make sure that we reflect the current make-up at any given time.

The Hon. Terry Stephens also asked about the offences of drinking or supplying liquor or gambling on the lands. There were very strong views from Anangu in consultations particularly on breaching the by-laws or to exclude people. They made it very clear that members of the APY Executive ought to be persons who would abide by the law and, particularly, be role models in the community.

The original intention was that the scheme would operate so that once someone was elected, there would be a police check. One of the things that Anangu pointed out was that it would be much better if that was a qualification for nomination, not election, so that you would not have a situation where someone is elected and then the second most popular person got in or someone was embarrassed because they might not have realised they were not going to pass. That is something we have changed as a result of consultation.

The Hon. Terry Stephens also asked: might that lead to people maliciously preventing people being elected to the board? That is not the case. These are objective things that are set down. It is not that someone can use a certain conviction against someone else. There will be a police check and you either do or do not satisfy that. The honourable member asked about conciliators. As I foreshadowed, we will have an amendment, so there will be a panel appointed. The minister must refer something to a conciliator in the first instance to see if it has merit and it must be investigated if it has merit.

There was talk about the electoral roll for the APY lands, which the Hon. John Darley mentioned as one of his two concerns. The basis for the electoral roll being created for the first time will be the state electoral roll. Evidence, like it is everywhere else about your residency and the time of residency, will be from what is stated on the electoral roll, together with all those qualifications that go with a right to be on the electoral roll.

The final issue was about voting. A number of people raised the voting method. The Electoral Commissioner has offered to be available to answer questions on that when we go in to the committee stage on this bill—hopefully, next week. I know the shadow minister has had the opportunity to talk to the Electoral Commissioner about this. Very briefly, the scheme that is envisaged is that, instead of using marbles, the electoral process will be aided by electronic means. It will be a legislative requirement that Anangu will have two separate votes in each electorate, one for a man and one for a woman.

The Electoral Commissioner intends to use a touchscreen system with a photograph on the screen, where an Anangu voter can vote for the person of their choice by touching a picture of them on the screen and then printing that out and putting that vote in the ballot box. I think that sounds like a pretty good compromise. As the Hon. John Darley pointed out, literacy and numeracy is not at the same level on the lands as it is in many other communities, so being able to do that while also having the security of a paper-based system that can be scrutinised and checked, as all of us have come to expect, is a good compromise.

As I said, the government will lodge amendments later this week to take into account a number of things that I have talked about, such as the matter of a conciliator. We also intend to lodge amendments to make the regulations allow for maps to be produced so that it is very easy to see which communities fall into which particular electorates, and to ensure that there is a review of those before each election. There are also a number of minor procedural matters that may or may not be necessary but, out of an abundance of caution, we want to remove any ambiguity to further clarify eligibility and make absolutely certain that the same electoral roll requirements apply for people who are voting as they do for nominating.

The final foreshadowed amendment relates to the two serious offences listed in the definition covering the same type of offence, so that will be clarified into just one. Having said that, I thank all honourable members for their contribution. I know there is a genuine desire to see an improvement in the way the APY lands operate, and I look forward to taking this through the committee stage in the next sitting week.

Bill read a second time.

Sitting suspended from 13:17 to 14:17.