Legislative Council: Wednesday, February 07, 2024


First Nations Voice Elections

The Hon. B.R. HOOD (15:24): I seek leave to make a brief explanation before asking a question of the Minister for Aboriginal Affairs regarding the First Nations Voice elections.

Leave granted.

The Hon. B.R. HOOD: In the First Nations Voice Act the meaning of 'First Nations person' is prescribed through a tripartite test, requiring a person to:

(a) be of Aboriginal or Torres Strait Islander descent; and

(b) regards themselves as Aboriginal or Torres Strait Islander…; and

(c) is accepted [as such]…[by their] community.

Section 6 of the act enables the Local or State Voice or First Nations person to not disclose information that according to tradition should not be disclosed. My questions to the Minister for Aboriginal Affairs are:

1. What actions are being taken to ensure that only Aboriginal or Torres Strait Islander people will vote in the Voice elections?

2. Can the minister foresee anybody relying on section 6 to obstruct, cast doubt on or cause illegitimacy in the elections or operations of the Voice?

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:25): I thank the honourable member for his question. In relation to the second part, the answer is, no, I can't see people relying on that in relation to the conduct of the election. I know there has been some, although limited, discussion about this. I do remember a couple of years ago, when a similar representative body was proposed by the then Liberal government when there was some discussion of this, the then Commissioner for Aboriginal Engagement, Dr Roger Thomas, very eloquently answering a lot of these questions.

This is not something new or untested whatsoever. The tripartite test the honourable member mentioned has been around since 1992, when the High Court handed down the decision in Mabo v Queensland (No. 2). I think it was Justice Brennan who particularised the test the honourable member has referred to, which appears over and again, both in state and federal legislation, in various ways for various regimes and schemes and has worked exceptionally well since 1992.

Even predating Mabo, we have had elections for the then ATSIC body. The inaugural ATSIC elections I think were in 1990 and, if I am remembering my history correctly, there were four elections for the Aboriginal and Torres Strait Islander Commission, which of course was initially headed by Dr Lowitja O'Donoghue, who we talked about yesterday. I think after 1990 there were another three ATSIC elections that had Aboriginal and Torres Strait Islander people voting and electing members of their own community onto regional councils and into regional zones. That occurred four times in South Australia quite effectively and efficiently.

The Australian Capital Territory, although not a legislated body, has elections for an advisory body and has had for some time. In Victoria, there is an election for a representative Aboriginal body for a treaty-making process, the First Peoples' Assembly. These things have been known for quite some time. The test or definition, as the honourable member outlined, has been used extensively throughout Australia since 1992. It has occurred and has been tested numerous times.