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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2021-12-02 Daily Xml
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Bills

Aboriginal Representative Body Bill

Second Reading

Adjourned debate on second reading.

(Continued from 17 November 2021.)

Ms BEDFORD (Florey) (16:07): As I was asked to seek leave, I was talking about flying flags in the Florey electorate office, the first of which was in the Modbury Triangle. In those days, the national Aboriginal and Torres Strait Islander flags were Blu Tacked to the glass of the office's front windows. Despite this show of support for First Nations people, it took well over a year for the first Aboriginal person to come in and make themselves known to me and my staff.

Not long after, we started the Florey Reconciliation Task Force, and many good friendships have been made through those meetings and many good works done in our local area and beyond. I mention all this because it is an example of the time it sometimes takes to gain trust and acceptance from Aboriginal people, both important if we are to make a difference and assist Aboriginal people to capture the aspiration for a fair and truthful relationship with the people of Australia and a better future based on justice and self-determination.

On our move some years later to 436 Montague Road, the second Florey electorate office in my time, we installed three flagpoles and have since flown the national, state and Aboriginal flags every day, weather permitting, and other flags on special days.

I understand that one of the aims of this bill is to underpin the Uluru Statement from the Heart, which seeks constitutional reforms to empower Aboriginal people to take their rightful place in our community and a call to enshrine a First Nations voice in the Australian Constitution. The Uluru Statement further seeks or sought to have a Makarrata Commission to supervise the agreement-making process between governments and First Nations people.

Makarrata is a word from the Yolngu people of the Arnhem Land and it captures the idea of two parties coming together after a conflict and healing the divisions of the past. Wrongdoings are acknowledged and steps are taken to make things right.

A Makarrata commission would have two key roles: (1) to supervise the process of agreement-making and (2) to oversee a process of truth-telling, especially to recognise Indigenous history in this country. While the bill before us takes steps towards achieving this truth-telling process between our parliament and our First Nations people, many individuals have approached me to raise their concerns about this bill, people of high esteem in the Aboriginal community. They have approached me about the bill, its mechanics and its possible outcomes.

They do not believe the proposed Aboriginal representative body of 13—one being the commissioner or chair; five being elected Aboriginal people, one each from the five widely diverse and varying geographic wards the state has been divided into where a rep from one group could not really readily identify whether they represent all the others in the same ward; and seven other people on the committee or body appointed by the Governor on recommendation of the Aboriginal groups, again with the involvement of the Aboriginal representative body.

The Uluru Statement is held in high regard and achieving what it seeks is important to First Nations people. There is concern that at least the intrinsic sentiment of the Uluru Statement has not been fully enshrined into this legislation and aspects included could be lost or limited in the future.

Most individuals who have contacted me are disappointed with the consultation process and have labelled it insufficient. While mindful of the impact COVID-19 has had on this process, and the efforts of the commissioner, it is still disappointing many in the Aboriginal community were unaware of this draft bill or felt they did not have the opportunity to truly voice their opinion and concerns on this bill during the consultation period, not having had the time to get together and to speak about it in groups.

Research into various models across Australia and internationally could provide greater evidence and knowledge on the best practice model for a voice to this parliament. I mentioned the United States, Canada and, in particular, New Zealand where there has been a treaty in place since the very early days of settlement. All these countries already have treaty agreements between their respective Indigenous peoples and governments.

Closer to home, the Victorian Yoo-rrook Commission was formally established in May 2021 in response to a call for a truth-telling process. It is the first truth-telling body to be established in Australia. The body explores the historical and ongoing injustices committed against Victorian Aboriginal communities since colonisation. The commission is also independent from government and afforded the full power of a royal commission.

Major concerns have been raised about the definition of Aboriginal persons as prescribed in part 1 of this bill as it pays sole regard to biological descent only. It does not consider self-identification or community recognition. It does not recognise there is a lack of records or written evidence to prove biological descent, especially for those individuals of the stolen generation. It beggars belief that in the Australia of 2021 some people in the community still do not have a birth certificate for a number of reasons. I am ashamed to say that I believe the federal government could have acted a lot faster in making this a reality and, if they had not been prepared to act, then this state government should have been.

The commonwealth government applies a three-part test for determining eligibility for certain programs and benefits: Aboriginal descent, self-identification and community recognition. In interpreting the Aboriginal and Torres Strait Islander Commission Act 1989, federal legislation, Justice Merkel in Shaw v Wolf further emphasised the importance of descent in establishing Aboriginal identity but also recognised self-identification and community recognition are relevant in establishing Aboriginal descent and identity.

Another concern in this bill is vesting a single body, the Aboriginal Representative Body, to represent and make decisions on behalf of all Aboriginal people across South Australia. The flow-on effect of the definition of an Aboriginal person can lead to misrepresentation within the body of Aboriginal communities and their differing concerns and issues. The priorities of the Kaurna people are very different from those of the Kokatha people, and the formation of the body could cause more conflicts and disenfranchise groups.

The definition of Aboriginal person as prescribed under this bill may have negative impacts on the operations of the Aboriginal Heritage Act 1988, Native Title Act 1993 (commonwealth), Aboriginal Lands Trust Act 1966 and 2013, and other land rights acts (Maralinga Tjarutja Land Rights Act 1984 and Anangu Pitjantjatjara Land Rights Act 1981) which may not come to light until after this bill, if successfully enacted, and this could be too late.

Aboriginal people should be awarded a voice in this parliament—no question whatsoever. It should be one where all First Nations people feel they are represented and included. It should not be rushed. The process, while well meaning, should not be rushed. The diversity within the communities and their groups must be acknowledged and a body formed which can be united and discussed to make parliament aware of the various priorities and concerns of our First Nations people.

For these reasons and more, which I know the Aboriginal community will bring to my attention when they are able—and they have been working on this since the bill was first introduced to the house but have not had the opportunity to bring their concerns to me in a more formal manner—I hope the bill is not passed in its present form. I urge members to give consideration to the fact Aboriginal people do have these concerns, and I ask them to make sure they consult widely with the Aboriginal people in their communities to understand what this bill will truly mean to them.

Ms HILDYARD (Reynell) (16:15): I rise to speak on this bill and, in doing so, I acknowledge that the land on which I live and spend time with our community and we meet today is Kaurna land. I pay my deepest respects to Kaurna elders past and present, to Kaurna future leaders and to elders and people of other Aboriginal nations. In acknowledging elders and the land we meet on today, I acknowledge that this land always was and always will be Aboriginal land.

I also acknowledge that there is a long road ahead to genuine reconciliation. I am proud to be a member of a party that has already made commitments to progress genuine engagement with Aboriginal people in our community. One of these important steps towards reconciliation, towards ensuring the voices of Aboriginal people are absolutely heard, is to completely endorse what is set out in the Uluru Statement from the Heart. I note proudly that over two years ago South Australia Labor publicly announced support for all three elements of the Uluru Statement from the Heart: voice, truth and treaty. In rising today to speak to this bill, I also acknowledge Kaurna leaders.

Our southern community is deeply blessed to learn from leaders who generously share their wisdom, their culture and their kindness. Amongst them is Karl Telfer and his family who, together with so many of us in our southern community and beyond, are heartbroken by the recent passing of his strong, beautiful and active mum, who with such passion and focus relentlessly worked for the voice of Aboriginal people to be heard, listened to and acted upon, for Aboriginal people to be empowered to lead, to have a genuine, strong voice for treaty and truth telling to occur, and for healing and reconciliation to happen in an honest, truthful way that genuinely recognises past and current hurt and injustices.

I take this opportunity in this place to say that I will miss her. I am deeply grateful to her for what she taught me, for the wisdom that she so generously shared with me about culture, country and the continuing struggle. I will forever continue to be inspired by her, by her honesty, her willingness to tirelessly fight and act for change. I will have her strength, her voice and her willingness to fight in my heart and mind whenever I have the opportunity to speak up about what makes a difference, about what matters, and that absolutely includes this debate in this place.

An Aboriginal voice to parliament matters. How this occurs also matters. An Aboriginal voice to parliament must be established and amplified in a way that represents what Aboriginal people want in terms of this voice. In order to ensure that this is the case, a comprehensive, respectful process must occur. As others have said, including the member for Florey, to ensure that the process is so, a deep, appropriately resourced consultation must occur.

In thinking about this process, as others have done, I reflect on the Uluru Statement from the Heart. As we know, it is a statement that deeply calls for voice, treaty and truth. The Uluru Statement from the Heart also calls on reforms to empower Aboriginal people to take a rightful place in their country to have self-determination to create change. The Uluru Statement from the Heart states:

Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.

Each of the three elements of the statement—voice, treaty and truth—are equally important and are all vital interwoven parts of the necessary journey to implementing what is contained within the Uluru Statement. Unfortunately, this bill seems to respond only to one of these crucial elements—voice. However, sadly, we also know that the voice prescribed in this bill is not a completely meaningful voice to parliament, but rather a voice to a new parliamentary committee.

Enshrined and genuine engagement with and voice to parliament is an important—indeed crucial—step in ensuring that Aboriginal people have a genuine say in a parliamentary system that has not supported them, not listened to them and not acted upon their advice for more than 100 years.

Aboriginal voice, autonomy and genuine engagement should have been key elements throughout the entire drafting—and potentially redrafting—process and post consultation about this bill. However, instead of thorough and wide, appropriate consultation, we have seen:

consultation on the bill opening on 7 September;

just 10 days later, consultation on the bill closing on 17 September;

the bill not being published on the YourSAy website;

the bill not being published on the Premier's website;

no media release;

no promotion;

no additional resources in video or in language;

no in-person consultations whilst the draft bill was online for that very short 10 days;

no summaries provided of any in-person consultations; and

comments having to be emailed—none posted publicly online.

Others have traversed why this consultation is utterly inadequate. The most obvious way in which the limitations of this consultation are expressed are, of course, in the shortcomings of the bill itself. This bill is just not good enough.

On 13 February 2008, former Labor Prime Minister Kevin Rudd made a formal apology to the people of the stolen generations whose lives have been blighted by past, horrendous government policies of forced child removal and assimilation. Former Prime Minister Kevin Rudd said:

We apologise for the laws and policies of successive Parliaments and governments that have inflicted profound grief, suffering and loss on these our fellow Australians. We apologise especially for the removal of Aboriginal and Torres Strait Islander children from their families, their communities and their country.

I remember joining with many others in Elder Park to hear that apology. Like many others, I thought it was such an important moment that one of our sons attended with me in lieu of attending school. It was, I believe, an important step and one that many I understand fervently hoped would precede real change.

More recently, in 2015 South Australia proudly became the first mainland state to introduce a Stolen Generations Reparations Scheme under then Labor Aboriginal affairs minister, the Hon. Kyam Maher. I wholeheartedly acknowledge and thank now shadow minister Maher for this work and for his ongoing work with and for Aboriginal people in communities across our state. It is extraordinary.

There are so many issues in our community on which Aboriginal people simply must be heard and on which truth just must be told. I touch on just a few of these. Mr Deputy Speaker, as you and others in this house would be aware, I am very passionate about the prevention and eradication of domestic violence. The domestic violence statistics that we continue to confront are appalling, and they are a persistent call to action. Most recent statistics from the SAPOL annual report note that the number of domestic violence related assaults shockingly rose again this year by almost 10 per cent.

What we also know about all the shocking domestic violence statistics is that they are significantly worse if you are Aboriginal, that there is a deeply disproportionate impact of domestic violence on Aboriginal women. The Commissioner for Aboriginal Engagement in his December 2020 report historically presented in this very chamber outlined that:

national figures demonstrate that about one in 10 Aboriginal women experiences family and domestic violence;

in addition to the physical effects of violence, these women were more likely to experience psychological distress, long-term health conditions, poor mental health and homelessness; and

they were less likely to trust the police than those who had not experienced violence.

We also know that Aboriginal women are less likely to trust the legal system and hospitals. Shockingly, just a few years ago Mama Mia reported that Aboriginal women are 38 times more likely to be hospitalised as a result of domestic violence.

The commissioner also noted that within the Aboriginal Affairs Action Plan, specific action on domestic violence is limited to a single regional initiative and that a whole strategic and a whole-of-government approach is urgently required. A year on from this report, sadly we are yet to see that whole strategic and whole-of-government approach to preventing and eradicating domestic violence.

On every issue, Aboriginal voices must be heard and acted upon, including on this most pressing, devastating issue of domestic violence. Heard and acted upon Aboriginal voices must be, because those statistics I have just outlined are deeply unacceptable. On this issue and on every issue, as a parliament we must enable the development and creation of a mechanism that genuinely empowers the voice of Aboriginal people. For it to be structured in a way that works, the time must be taken to have Aboriginal people lead the way.

I have had the privilege of meeting with the Nunga Babies Watch group—aunties, grannies and other women desperately concerned about the way that vulnerable families are treated when Aboriginal babies are removed. The stories they and others have shared about Aboriginal women for whom English is a second language not being provided with translators before their baby is removed and of extended family members being ready, willing and able to assist just simply not being contacted at all were disturbing.

A report published by the Guardian for Children and Young People in May this year shows that one in every 11 Aboriginal children in South Australia is in state care—one in every 11. It is hard to describe in words just how shocking this is. What I can say, is that this warranted an immediate response from the Marshall Liberal government and particularly from the child protection minister. Sadly, that immediate response was just not forthcoming.

The report shows that a growing number of children, 36.7 per cent, or 1,519 children, in state care in South Australia are Aboriginal. The Commissioner for Aboriginal Engagement, Dr Roger Thomas, also highlighted the lack of focus on supporting Aboriginal children and families in his report to parliament last year.

Despite these appalling figures, the Minister for Child Protection refused to accept any of Labor's amendments to the Children and Young People (Safety) Bill to enable Aboriginal children, their families and communities to be more meaningfully engaged in the child protection process and to lead important discussions about the future of their children. It is clear that much more needs to be done in terms of early intervention and prevention.

To get to exactly what must be done and to do it, it is essential that a meaningful voice is established in parliament to work on this and on many other key issues. As I said, Aboriginal families and communities must be enabled to lead processes to support vulnerable children and their families to help keep families together. To genuinely hear about those processes and to take real action that will make a difference on this and on many other issues, the way that that voice is heard must be robust, developed, supported and led by Aboriginal people.

The Hon. D.C. VAN HOLST PELLEKAAN (Stuart—Deputy Premier, Minister for Energy and Mining) (16:29): In my contribution to the Aboriginal Representative Body Bill, I will begin by quoting from the preamble to this bill:

Aboriginal people have long called for their voice to be heard in Parliamentary and Government decision-making processes. Too often, Aboriginal representation, advocacy and influence is absent and decisions are made for Aboriginal people by others.

The Parliament of South Australia wants to ensure that the voice of Aboriginal people is heard by the Parliament and the Government of South Australia. When their voice is heard, Aboriginal self-determination becomes a step closer.

This Act sees South Australia accept the invitation of Aboriginal people to join them and walk together towards a better future.

Those words that I have just read out from the preamble were not drafted by the government, although the government certainly does agree with them. They are the aspirations of Aboriginal people expressed to the government through the Commissioner for Aboriginal Engagement, Dr Roger Thomas. Let me quote from the Premier's second reading speech to explain the bill:

The initiative in this bill represents a landmark in the social and political development of our state and our people and an important step in the national journey towards reconciliation…

With this bill we create formal, legal communication channels through which a representative body of Aboriginal South Australians can speak to the heart of our system of government with reciprocal obligations to listen.

Again, these words I have just read are not words written by the government. They were drafted as a further step in a journey that has been entirely Aboriginal-led from its beginning more than three years ago. At the forefront has been Dr Roger Thomas, supported by many other respected Aboriginal leaders in our state and members of their communities. Dr Thomas gave a historic address to this house last December. He concluded that speech by saying:

I strongly believe that for us to progress what has been started today, as it is often stated, Aboriginal affairs should be bipartisan, and it is to that end I strongly encourage this parliament to fully apply the full spirit and principles of bipartisanship in working with me and other significant Aboriginal people to progress the Aboriginal voice.

This is the government's continuing wish.

In giving his address to this house, the commissioner also tabled a report which explained the consultation he had undergone on Aboriginal engagement reform. He explained that this reform was one of the 32 initiatives identified under the government's Aboriginal Affairs Action Plan released in December 2018, almost three years ago. He explained that he had developed a new engagement model as a result of a five-stage process, which had involved initial discussion with Aboriginal community leaders followed by statewide engagement.

As a result, he presented in his report a model for an Aboriginal representative body, which has been incorporated into the bill now before the house. In doing so, he described this model as 'a significant step in the Aboriginal community's road to self-determination'. Dr Thomas also commented:

Importantly, the Body will embody one of the key tenets of the Uluru Statement from the Heart: Voice. It will be a voice of the Aboriginal community to the Parliament of South Australia.

The government cannot emphasise enough that what is before the house in this bill faithfully reflects the advice the commissioner has presented to us as a result of all his consultation. In his report to the house last year, the commissioner referred to the challenges COVID had presented to his continuing work, and he wrote:

I recognise that there is a level of nervousness among Aboriginal people across the state about the risks of COVID-19, which may continue to present challenges for engagement and the electoral process. However, it is important not to lose sight of the significance of the Uluru Statement from the Heart, in which truth-telling and an Aboriginal voice remain key to the broader Aboriginal community.

After the commissioner presented a draft bill in August for cabinet's consideration, cabinet sought a final round of consultation to ensure what had evolved into legislation was clear to those stakeholders who had been involved in the design of the new engagement model. As a result, the commissioner held four consultation forums, supported by representatives from parliamentary counsel, the Crown Solicitor's Office and the Department of the Premier and Cabinet.

He also met with the South Australian Aboriginal Advisory Council, the State Aboriginal Heritage Committee and the Australian Electoral Commission, amongst others. In addition, 51 regional Aboriginal organisations were presented with a consultation pack. As a result, the commissioner advised the Premier that, while there was a minority of attendees who felt that the time given to review the bill in detail was insufficient, a common narrative of strong support for the bill was evident throughout all the forums.

Contrary to what the Deputy Leader of the Opposition said in her contribution on the bill, the subject of Aboriginal engagement reform has been widely canvassed with Aboriginal people and communities. It has been done in an entirely Aboriginal way, led at all times by the Commissioner for Aboriginal Engagement. The opposition, in its response to this bill so far, has encouraged distrust of this process and its outcome. Typical of Labor, it pretends to know what is best. It ignores the empowerment of our Aboriginal people and communities.

And what did Labor do when it was in government? Very little until the last of its 16 years in office. In February 2017, it established the Office of the Treaty Commissioner. In July 2017, Dr Thomas, as the Treaty Commissioner, presented a report to the former government following consultation with Aboriginal people and communities. The house will note that this was a much shorter period of consultation than has occurred for the development of this new engagement model—four months compared with almost three years.

Dr Thomas advised the former government that there was widespread community support for the establishment of an Aboriginal Representative Body as a step in the process of further consideration of treaties. But his advice was rejected, with the former government directing instead that negotiations about treaty had to commence before the end of 2017.

In May 2018, Dr Thomas reported to this government about the treaty process of the former government and he advised that from the outset there were widespread concerns expressed by the broader Aboriginal community and the commissioner about the very short time frames for the consultation process to be carried out across South Australia. The consequences of these unrealistic time frames placed insurmountable pressure on those nations that had been selected to commence negotiations. They had little time to adequately comprehend treaty and fully prepare for negotiations, let alone to properly consult with their own community members.

The government accepts the engagement process enshrined in this bill is breaking new ground. That is why the Premier asked Dr Thomas more than three years ago to initiate consultation with our Aboriginal community. The model the commissioner has developed will provide a voice to Aboriginal people that will be independent, representative and genuinely connected with Aboriginal communities. It establishes a body whose existence and functions, as well as independence, will be enshrined into law.

It establishes formal communication channels between Aboriginal people, the parliament, the government, ministers and government agencies. It establishes accountabilities for ensuring that views put on behalf of Aboriginal people are considered and respectfully responded to. This parliament now has the opportunity to provide Aboriginal people with a voice that will be heard by the parliament, the cabinet and state government agencies.

Because what is proposed is new, clause 59 of the bill provides a review mechanism to include a scheme of consultation to be determined by the review body itself and to be undertaken no more than three years after the commencement of the bill. This will leave the destiny of this reform where it should be: in the hands of Aboriginal people. The government urges the house to recognise and respect the work of Dr Thomas and support the engagement model he has proposed on behalf of the Aboriginal people of our state.

Debate adjourned on motion of Dr Harvey.

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