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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2023-03-21 Daily Xml
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Bills

First Nations Voice Bill

Second Reading

Adjourned debate on second reading.

(Continued from 9 March 2023.)

The Hon. A. KOUTSANTONIS (West Torrens—Minister for Infrastructure and Transport, Minister for Energy and Mining) (11:01): To conclude my remarks, I returned from Port Augusta yesterday, where we were engaging in consultation for another bill that is not yet before the parliament called the Hydrogen and Renewable Energy Act. We were talking to, negotiating with and consulting every Indigenous group in the state. It is fair to say that there is a lot of unfinished business. There is a lot of cynicism, a lot of hurt and a sense of betrayal. This is not a partisan attack; this is about government, full stop.

There were elders and young people who were thirsting and looking for the same thing we all want for our families and our homes and that is a better tomorrow, an opportunity and a pathway forward. The Voice will not fix all those things. The Voice will not undo entrenched disadvantage. The Voice will not be the solution to all the ills that have befallen our First Nations people, but it is a recognition that we have made errors and it puts us on the path to move forward where we can have a spotlight on the impacts of the changes that we make in this house that impact on ordinary, everyday Indigenous communities.

Hearing their voices yesterday in Port Augusta in our second round of consultation, the voices are not homogenous; they are diverse. There is a difference in what is thought. There is not one Indigenous voice, there are voices, and they need to be heard, just like our community have voices in this parliament. Let's face it, does the member for Flinders really represent the 20 or 30 per cent or 5 per cent or 10 per cent of the minority vote? Do I represent the Liberal Party vote in my electorate in here adequately? Do they have a voice?

What we are saying is that the most disenfranchised people in our state, who are over-represented in our prisons and who are over-represented in statistics that we would not want to be a part of, like early mortality, poverty, malnutrition, education and imprisonment, have levels of disadvantage in these communities that need to be aerated.

The Voice will not be easy. The Voice will be confronting, especially for ministers who have executive function. For us, the Voice will be the most difficult. For us, the Voice will be confronting, as it should be. The Voice will be the voice of the so far unheard and they will be heard and heard often. Often, what we will hear we will not like. That is the point of the Voice: not to be congratulated but to hear voices of dissent. That is real representation.

The Hon. A. PICCOLO (Light) (11:04): I rise in support of this bill. I would like to preface my contribution to this bill with a few comments to help me put this issue and the debate into context. Firstly, people of goodwill with the same set of facts can arrive at different conclusions because of their different lived experiences. While this is true, it is important that we acknowledge what this debate is and is not about. This is also true for our First Nations people. The fact there is some difference of opinion within the Aboriginal community on this issue of the Voice is not of any surprise.

As part of this discussion and debate we have to address that our understanding of Australian history has been, to date, a European version. That has impacted on our laws and culture. The High Court decision in Mabo went a little way to correct this historical record but not far enough. We now understand there is another valid version of Australia's history from the perspective of the First Nations people.

This is also true of Christian theology and the impact this has had on Aboriginal people. We need to understand and accept that there is an Aboriginal interpretation of the Christian faith, if we honestly believe that we are born in His image. The time has come for an acceptance of the Aboriginal Christian theology if we are to truly become a reconciled nation. But that is a discussion for another day.

The Voice process has been informed by the Uluru Statement from the Heart, so I believe it is important to insert into this debate key elements of the statement, as it provides context as to why this bill is important not only to Aboriginal people but to the nation as a whole. Like the Prime Minister has commented, the Uluru Statement is our Gettysburg Address. It is, like Lincoln's speech, a simple statement that has profound meaning. It acknowledges a harsh but truthful reality. It is also a statement of great hope for our nation, as it speaks for a better future, which we know is within our reach. But we need an open and uncluttered mind and a heart full of compassion if we are going to make it happen.

The statement is like a love letter to the nation from the heart of the Aboriginal people and from the geographic and political heart of their country and our nation. This is how First Nations people see our shared history, and I quote from the statement:

Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from 'time immemorial', and according to science more than 60,000 years ago.

Since colonisation or settlement, we have either done it to the Aboriginal people through the dispossession of their lands, language and culture; through killing on their lands; through taking their children and, at times, enslaving them; or, we have done it for them: we have placed them into missions; we have diminished their language and culture, that it was not permitted to evolve over time; and we gave them sit-down money or welfare, which impoverished a generation of Aboriginal people. What are the consequences of these policies? Let me quote from the statement:

Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.

These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.

Now is the time for us to walk with First Nations people, but we need to start the story at the beginning and the statement provides a First Nations perspective, and I quote:

In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.

First Nations people invite the Australian people to walk with them. Where do we go from here? I quote:

We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.

We call for the establishment of a First Nation's Voice enshrined in the Constitution.

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.

We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.

These are the three elements of the Uluru statement: Voice, Treaty, and Truth telling. This bill is about creating a Voice to Parliament. This will build a foundation and create the architecture for a treaty and truth-telling process. The Voice underpins the First Nations ability to engage in a treaty and truth-telling process.

What have we, as a Labor Party or Labor government, done to date? I would like to relate some events of Labor's record on Aboriginal affairs. In 1966 the then state Labor Minister for Aboriginal Affairs, Don Dunstan, introduced the first Aboriginal land rights legislation in Australia to establish the Aboriginal Lands Trust.

In 1975, Labor Prime Minister, Gough Whitlam, famously poured a handful of red soil into the hand of Vincent Lingiari. This symbolised the legal transfer of Wave Hill Station back to the Gurindji people. It also meant the Gurindji people became the first Aboriginal community to have land returned to them by the commonwealth government.

In 1981, South Australia passed the land rights legislation for the APY lands, built on the work of Labor under Don Dunstan. In 1992, Labor Prime Minister, Paul Keating, delivered the Redfern speech. He outlined the injustices committed against Aboriginal people since colonisation, and asked us all to imagine if it was us.

In 1995, federal Labor Attorney-General, Michael Lavarch, instigated the Bringing Them Home report. The report was delivered under the Liberals, but some findings were rejected and John Howard refused to say sorry. In 2008, the Labor Prime Minister, Kevin Rudd, made a formal apology to the stolen generations, whose lives had been blighted by past government policies of forced child removal and assimilation.

In 2015, South Australia became the first mainland state to introduce a Stolen Generations Reparations Scheme under Labor Aboriginal Affairs minister, Kyam Maher. In 2019, South Australian Labor leader, Peter Malinauskas, committed the Labor Party and a Labor government to state-based implementation of the Uluru Statement from the Heart.

This brings us to what we are debating here today. This bill creates the structures and processes to give First Nations people a Voice to Parliament and state government. It is, importantly, based on a full First Nations franchise. They elect their representatives. The proposal has been criticised for a number of reasons, including:

it will not make a tangible difference—in other words, it will not improve Aboriginal disadvantage;

it is race-based and therefore should be rejected;

a treaty should come first; and

the issue of sovereignty.

Coming to the first criticism about Aboriginal disadvantage, I concur with the minister's comments just a few moments ago that the Voice itself will not address these issues directly, but, importantly, the Voice will help inform policies and avoid the policy failures of the past. Yes, there exists a huge challenge to address the disproportionate disadvantage that, overall, First Nations people experience, but the Voice will enable parliaments and governments to develop the right policies to make a real difference.

In regard to the criticism that it is race-based, race is a social construct. Its term came about as a way of justifying Western colonisation from the 15th century onwards—in other words, to justify the conquest of other First Nation countries. It has no basis in science. As the Deputy Premier and member for Port Adelaide said in her contribution to this debate, we need to:

…accept the profound difference between the idea of race and that of culture.

Race does not exist. It is an artificial distinction between people that has no foundation in fact. We are all human: there may be a wide variety in how we look, but there is no discernible difference of any significance between people of any nation on this earth. Any suggestion that this legislation is about this outdated notion of race is simply wrong.

What is important is the idea of culture.

Another of the criticisms is that the treaty should come first. The Voice will determine who will speak on behalf of First Nations people in a treaty process and that is why it precedes the negotiation of a treaty. On the issue of sovereignty, the Uluru Statement itself, I think, addresses this issue very well. I quote:

This sovereignty is a spiritual notion: the ancestral tie between the land, or 'mother nature', and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and [importantly it] co-exists with the sovereignty of the Crown.

What is the alternative model? To have a Voice which is partially appointed? One which denies the First Nations people self-determination? This would, in my opinion, be a step back to colonial Australia. In speaking in opposition to this bill, the member for Heysen said, in part, as follows:

Let's approach the matter with the humility and the diligence that the subject matter requires because there should not be any hint of grandiosity in what we are debating here. It is true to say, and I do not think that there is anything controversial in an observation, that the difficulties, the challenges, the opportunities that Aboriginal people in this state have experienced over the course of our South Australian history since 1836, have remained challenging and complex problems for public policy for parliaments, for governments and for those who would work alongside Aboriginal people.

While I agree wholeheartedly with the member's sentiments, I do not agree with the conclusion he reaches. As the Premier said in his contribution to the bill:

We must have humility enough to say that what we have been doing has not been working well enough. If things are to improve, things also need to change. This legislation has involved extensive consultation with communities all over South Australia, aimed at ensuring that the Voice will be robust, informed and inclusive.

We continue that journey this week.

Mr BROWN (Florey) (11:17): I rise to support this bill. This bill represents the implementation of a commitment made by the then Labor opposition in 2019. In fact, I believe it was the very first foreshadowing of a piece of legislation made by Labor in that term of parliament.

The commitment was made again at the 2022 state election and I have personally heard the now Premier mention it on many occasions during that campaign, including in his formal speech at the campaign launch. Consultation on the model to be used was begun not long after the election and, following passage in the other place, we now have a bill before us.

I know that the Attorney-General, who has a deep personal connection to this bill, has worked diligently to produce the most effective model possible. I have observed him to be driven not by ideology or politics but by a determination to achieve positive results for those who have been let down so much in the past.

I would now like to turn to the particulars of the bill. Part 1 of the bill sets out important preliminary matters. In response to feedback from the engagement sessions, the definitions of 'Aboriginal person' and 'country' have been replaced with 'First Nations person' and 'traditional owner'. The definition of First Nations person adopts the tripartite test as stated by Justice Brennan in Mabo v Queensland (No. 2), stating in clause 4:

(1) For the purposes of this Act, a person will be taken to be a First Nations person if the person—

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

(b) regards themselves as Aboriginal or Torres Strait Islander (as the case requires); and

(c) is accepted as an Aboriginal or Torres Strait Islander person by the relevant Aboriginal or Torres Strait Islander community.

This test is commonly used by governments all around Australia. A reference to a traditional owner in relation to a particular place is now modelled on references in other legislation.

In response to concerns about the interaction of the Voice with existing bodies and agreements, two clauses outline its interaction with other legislation. Clause 7 makes it clear that the Voice does not limit or otherwise affect:

the functions of any other First Nations persons or bodies under any other act or law;

an agreement or arrangement entered into or relating to First Nations persons or bodies, such as native title agreements; or

anything that First Nations persons or bodies can do in accordance with First Nations tradition.

Clause 8 makes it clear that this bill is intended to be read in conjunction with, and to complement, the provisions of any other act that implements measures to progress Truth and Treaty, as contemplated in the Uluru Statement from the Heart.

Part 2 of the bill sets out the structure and functions of the Voice at the local level. Regions will be established within South Australia that will be represented by independent Local First Nations Voices with elected members. Pursuant to clauses 9 to 11 of the bill, the number of regions and the number of members that make up the Local First Nations Voice within each region will be prescribed by regulation.

Local First Nations Voices will engage with local communities in order to determine matters of interest to First Nations people in their region, and will communicate those views to the State First Nations Voice. This process will be a collaborative process with a State First Nations Voice. Local First Nations Voices will also have a discretion to collaborate with and assist public sector agencies and other organisations in the development of policies and procedures, and to engage with local government and other organisations on matters of interest to First Nations people in their region.

Part 3 of the bill sets out the structure and functions of the Voice at the state level. The membership of the State First Nations Voice will comprise the joint presiding members, who must be of different genders, of each Local First Nations Voice. The State First Nations Voice will represent the diversity of First Nations people in South Australia and will formally interact with the South Australian parliament and the South Australian government.

In response to feedback which sought greater recognition of, and representation from, young persons, elders, native title holders, as well as members of the stolen generations, the bill requires a State Voice to establish specific committees to represent these important groups. The membership of these advisory committees is to come from the community and not from the existing membership of the State Voice and the Local First Nations Voices.

Parts 4 and 5 of the bill set out the formal requirements for the State First Nations Voice interactions with the South Australian parliament and the South Australian government. The State First Nations Voice will be notified of the introduction of each bill in the House of Assembly or the Legislative Council and will be able to address either house of parliament, but not both, through one of the joint presiding members in relation to any bill.

The State First Nations Voice must deliver an annual report and address to a joint sitting of parliament, and may present a report to parliament on matters of interest to First Nations people. To ensure that the issues raised in these latter reports are appropriately considered, the minister is required to provide a response to the report, including whether any action has been taken or is proposed to be taken.

Interactions between the State First Nations Voice and the South Australian government will occur through meetings with cabinet, briefings with chief executives, and an annual engagement hearing. The ability to directly address the South Australian parliament and to engage with cabinet ministers and chief executives will give First Nations people the opportunity to influence decision-making at the highest levels and have their voices heard where it counts.

The conduct of elections is set out in schedule 1 of the bill. Elections will be run by the Electoral Commission of South Australia and will, with the exception of the first election, be held at the same time as the state election. Transitional provisions will allow the first election of members of the Local First Nations Voices to be held as soon as possible after the commencement of the legislation.

A First Nations person who is on the state electoral roll and who has completed a declaration of eligibility will be able to vote in an election of members of the Local First Nations Voice for the region in which they reside. A person who nominates as a candidate for a Local First Nations Voice is not restricted to nominating in the region within which they reside; instead, they may choose to stand either where they reside or in a region where the person is a traditional owner.

As agreed to in the other place, clause 13 of schedule 1 of the bill provides for a preferential voting system. Voting is to be conducted using a single transferable vote system in accordance with rules determined by the Electoral Commissioner after consultation with the State First Nations Voice and the minister. These rules will be modelled as much as is reasonably practicable on the Electoral Act's provisions for the Legislative Council vote.

I have outlined what the bill contains in detail, but I also feel it is appropriate to address what it does not do. It does not establish a third chamber of this parliament. It does not give First Nations people a right of veto of decisions made by this parliament. It does not deny or diminish the role that this parliament has as a decision-maker on what statutory provisions should be made for the betterment of the people of this state. What it does do is what it says in the title: it gives First Nations people a voice, a voice to speak on their behalf to this parliament so that we may collectively make better decisions, because we need to make better decisions regarding First Nations people.

Time and again we have gathered in this place and discussed the dispossession, disadvantage and disengagement of First Nations people in our state. The Voice will not solve these problems on its own; it is not being imbued with the authority to do so—that will remain the responsibility of all of us in this parliament—but it will seek to help us make better decisions, something which I am sure we can all support.

I have no doubt that this bill will pass this place, and there will be much commentary on its historic significance; however, the real work begins after that. The creation of a legislated Voice to this parliament is one thing, but it is we who must listen, and that will be the true test, not only of this legislation but also of our collective resolve to make our state a better place. I commend the bill to the house.

Debate adjourned on motion of Mr Odenwalder.

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