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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-02-23 Daily Xml
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Bills

First Nations Voice Bill

Committee Stage

In committee (resumed on motion).

Clause 34.

The Hon. S.L. GAME: I move:

Amendment No 1 [Game–1]—

Page 18, line 2 [clause 34(1)]—Delete 'The' and substitute 'Subject to subsection (1a), the'

Amendment No 2 [Game–1]—

Page 18, after line 3—After subclause (1) insert:

(1a) A committee may not be established under subsection (1) unless it is established for the purposes of advising the State First Nations Voice in relation to a matter or matters on which the State First Nations Voice is otherwise unable to adequately inform itself.

I just want to make clear that my position on the First Nations Voice Bill is that I oppose the bill entirely. As I have already stated, that is because I want to see a system where we are supporting people based on their needs, not based on their race. But given the reality that we clearly have the numbers for the First Nations Voice Bill to pass, I would like to give every opportunity to the chamber to ensure that new committees are only established if the First Nations Voice is otherwise unable to adequately inform itself.

It has been said that the local First Nations Voice will comprise 40 elected members, but actually the number of elected members is not stipulated in the bill. It has been said that the State First Nations Voice will comprise 10 members from that 40, but actually the number of State First Nations Voice members is also not stipulated. My point is that, in fact, we may end up with in excess of 40 elected members for the Local First Nations Voice.

It states also within the bill that a further four committees will be established and they will require additional members, so in addition to the 40-plus elected members. It also states that those committees will be ensured adequate resourcing. It further states that the State First Nations Voice may establish further committees and that the establishment of those committees only requires approval from the Attorney-General and then they will be also given guaranteed resourcing. My amendment would ensure that the First Nations Voice only establishes further committees if it is unable to adequately inform itself.

I want to put on the record that my understanding is that the Liberal Party will not be supporting this amendment, and I am confused by that. I also want to put on the record that last year I put forward a piece of legislation to ensure resourcing for the Children and Young Person's Visitor role, where Aboriginal and Torres Strait Islander children are over-represented in state care, and that resourcing would have ensured that those children could have been checked on at least four times a year rather than once a year.

The Liberal Party did not support resourcing for the Children and Young Person's Visitor role, but they appear now to be in support of the potential establishment of, really, limitless committees as part of this First Nations Voice Bill despite apparently opposing the bill. I was just wondering whether they wanted to put on the record why they are not supporting the amendment.

The Hon. K.J. MAHER: I am happy to rise first and quite clearly indicate that we do not support this amendment. I am happy to provide further information, which the honourable member would have been able to avail herself of at any given time, given the numerous briefings that were offered and indeed accepted by the honourable member in relation to how the First Nations Voice is proposed to be structured.

I can give further information, which I have given to anyone who has asked the question, about the proposed number of regions and the proposed number of members for each region after the second round of consultations. What we are proposing and the outline I have given in terms of remuneration, allowances, travel and the budgets that we have worked on contemplate a total of six regions or areas around South Australia. Five of them would be outside the metropolitan region and, as we have had extensive discussions already, based as close as practicable to groupings around Aboriginal nation boundaries grouped together. One region would cover the Adelaide metro region or the Kaurna nation boundary.

In the working model that we have, it is proposed that each of those five regions outside Adelaide would comprise seven members, so 35 members from outside the Kaurna boundary region, and to take into account the much larger population in the metro area, 11 members in the Kaurna boundary region, which will give a total of 46 members of all the Local Voices. Having six Local Voices, each with their two presiding members being on the State Voice, would equate to 12 members of the State First Nations Voice.

The honourable member talked about in excess of 40 and 10. We would have been happy to provide the details of where the current thinking is if the honourable member had asked for it at any stage, but I am happy to place that on the record now, as I have already provided, I think, great detail in terms of how the budget, how the thinking is being worked out and where we are with everything else in relation to this bill.

I can say that having given that information, as I have been very keen to do on every aspect that I possibly can give as much information on, we just do not understand the purpose of this provision and what the honourable member is seeking to do. In our view, it is absolutely implicit in clause 34 that the Voice would establish committees on matters it feels it needs further information on.

We are struggling entirely to see what the point of this clause is. If it is the view of the First Nations Voice committee that they do not feel they can adequately inform themselves, it will be completely up to them to establish the committees anyway. We really struggle to understand exactly what this does or how it changes anything that is already in the bill.

The Hon. J.M.A. LENSINK: I rise to make some remarks in relation to this amendment and also, indeed, the particular questions of the mover of these amendments, the Hon. Sarah Game. It is correct that we will not be supporting these particular amendments. To address some of the matters that go to the operations of the two different models that operate, both this version by the current government and the version by the previous government, clearly the specific Voices that this legislation establishes are a creature, if you like, of the government's version of the bill.

The Liberal Party's version of legislation provided more autonomy through our model and goes to some of the questioning before lunch about the prescription by the current government of the number of meetings and so forth. Our model was very much more that the Aboriginal representative body would make its own rules and set its own operational aspect. Therefore, these particular amendments that we have before us are inconsistent with our pre-existing position.

The Hon. T.A. FRANKS: Just for the record, the Greens will not be supporting this amendment. I can see where an additional committee might be required and advice might be required, it might well be issues of juvenile justice, child protection. Indeed, I will point to the current issues with the CNS where, in fact, some voice and advice from those who are at the frontline of working with the new Custody Notification Service (CNS) would have alerted government agencies, the government, to the fact that, while we thought we had actually created a better way and implemented the recommendations from the Royal Commission into Aboriginal Deaths in Custody with the changes to the CNS made under previous Attorney-General Chapman, which were done by regulation not through a bill, we actually made it worse.

Specialised legal frontline advice on that, much earlier, would have resolved that issue. Child protection is one of the biggest challenges I think that we will have facing us and having the Grannies Group and the Nunga Babies Watch actually providing advice, specialist advice, to the Voice will probably be very helpful and something that we need.

Every time I hear the debate meshed with the one about the Child and Young Person Visitor, I would note that the Child and Young Person Visitor is actually the person who was formerly with Reconciliation SA and ran the workshop that taught me much more about the Voice, and she actually supports the Voice.

The Hon. C. BONAROS: I am glad the honourable member provided that explanation or, at least, reasoning now, because that is certainly one of the issues that I have continued to raise with the Attorney throughout the course of this bill. I acknowledge our discussions around where children fit into those committee structures, but also the ability for those members to define 'youth' themselves in the same way that they will be able to define 'elders'.

I accept that that has been the outcome of that consultation process but, inevitably, I think we all can see that child protection is going to form the basis of some of the work, we hope, that happens in that advisory role in terms of the information we receive here in parliament by way of reports.

The Attorney has been quite clear that if there was to be a separate child protection committee or a committee that looks specifically at issues involving children in child protection, in youth detention, in the criminal justice system and so forth, then these would be the provisions that they would be covered by and they would be able to rely on experts and other groups in the know like Nunga Babies Watch and the Grannies Group and others to provide that level of advice. We see this as a very critical addition to the bill and for that reason we will be opposing the amendment that has been proposed.

Amendments negatived.

The Hon. L.A. HENDERSON: Could the minister please advise: there is no stipulation on this size of these committees. Is there an upper limit on the membership?

The Hon. K.J. MAHER: No, there is not.

Clause passed.

Clauses 35 to 39 passed.

Clause 40.

The Hon. L.A. HENDERSON: Could the minister please advise if members of the Voice, when they appear before the parliament, will be covered by parliamentary privilege when they make their contributions?

The Hon. K.J. MAHER: My advice is yes.

Clause passed.

Clause 41 passed.

Clause 42.

The Hon. D.G.E. HOOD: My question is to clause 42(3), where it talks about the President and the Speaker having the power to request either a report or an audience, if you like, with members of the Voice or from the Voice. Then it says in subclause (3) that there is nothing compelling the individual to come. I accept that and that seems not unreasonable to me.

What I want is to just get an assurance from the Attorney that that does not cross over to parliamentary committees. Currently, we have committees that have the right to be able to demand witnesses appear, if you like. I do not see anything in here that prevents that occurring with a parliamentary committee. I just wanted to make sure that that is the case.

The Hon. T.A. FRANKS: Subclause (4) provides:

To avoid doubt, nothing in this section limits the general privilege of Parliament to send for persons, papers or records.

Clause passed.

Clause 43 passed.

Clause 44.

The Hon. L.A. HENDERSON: Noting that members of the Voice are not members of the cabinet, would it not be in the interests of the public to be able to know what the Voice are looking to communicate with cabinet on and, also for the benefit of members of this place, to benefit from those conversations?

The Hon. K.J. MAHER: I thank the honourable member for her question. There would be nothing necessarily that would prohibit members of the public knowing what the Voice intended to raise with cabinet. But as discussed earlier, at a formal cabinet meeting, cabinet confidentiality would apply to the deliberations of cabinet just as when other groups attend, as I have talked about. I think Business SA, the Ai Group and other business groups over the course of the last 12 months have attended cabinet as part of the formal proceedings of the cabinet, and the principles of cabinet confidentiality would apply to those in-cabinet discussions.

The Hon. D.G.E. HOOD: Extending from that, we understand that cabinet information and documents cannot be FOI'd, but can communications within the Voice, for example, their communications, be FOI'd?

The Hon. K.J. MAHER: Yes. My advice is, absolutely, the documents and operations of the Voice would be subject to the operation of the Freedom of Information Act.

The Hon. L.A. HENDERSON: Further to what the Hon. Mr Hood has just queried, if members of the community were to write to their local member of the Voice, does that mean that their correspondence with that member could be FOI'd?

The Hon. K.J. MAHER: I thank the honourable member for her question. It is capable of having an FOI application lodged about it, but of course it would be subject to the usual considerations of FOI about the interests of private people and considerations in the normal course of FOI, just as any private individual corresponding has those things determined under the normal course of FOI applications.

Clause passed.

Clauses 45 to 48 passed.

Clause 49.

The Hon. L.A. HENDERSON: Due to a duplication, will the minister be abolishing the South Australian Aboriginal Advisory Council as they will be advising the government on matters that affect Aboriginal people?

The Hon. K.J. MAHER: I thank the honourable member for her question. I have indicated that there will be a number of advisory functions that we think the Voice is better placed to take. One of those, as the bill contemplates, is the Aboriginal Lands Parliamentary Standing Committee. I think the Hon. Michelle Lensink asked about the Commissioner for Aboriginal Engagement, and we indicated that it would be the intention that we see this as a better mechanism.

Certainly, the South Australian Aboriginal Advisory Council was a mechanism much like the Commissioner for Aboriginal Engagement. I can remember being involved in the establishment back when I was a chief of staff to a former Minister for Aboriginal Affairs with the abolition of ATSIC. We think the Voice is probably the better mechanism rather than that as well to provide that advice not just to government but to parliament.

Clause passed.

Clause 50.

The Hon. L.A. HENDERSON: Could the minister please advise why the body is asked to report on themselves, and why there would not be an independent review? Clause 50 states that it is a First Nations person or body, appointed by the minister on the recommendation of the State First Nations Voice. How will the minister ensure that there is not a clear conflict of interest here?

The Hon. K.J. MAHER: I think that would not be any different to the general principles when people are appointed to review certain things. There are statutory reviews required under a whole range of legislation on all sorts of things and all sorts of powers, and it is something that government has to turn its mind to probably every week of the year in terms of a review being conducted and making sure the reviewer is an appropriate person given their own interest.

The Hon. L.A. HENDERSON: Could the minister advise if it is standard practice, though, for the body that would be reviewed to provide the recommendation of who will be reviewing them?

The Hon. K.J. MAHER: We do not have a table that compares it with other legislation. However, I would note that this is a unique proposition that has been put forward, and we are conscious and keen to, as I think as the Hon. Michelle Lensink talked about, be creating as much scope as possible for the Voice to be involved in decisions. That is what we have tried to reflect in this bill: to make sure that the Voice themselves are involved in decisions we are making about the Voice.

The Hon. L.A. HENDERSON: Does the minister not acknowledge that that is a potential conflict of interest—that a body that is being reviewed is to provide the recommendation of who will be reviewing them?

The Hon. K.J. MAHER: We do not see that as a conflict of interest. It is, again, for the minister to appoint but take into account the recommendation.

Clause passed.

Clause 51 passed.

Clause 52.

The Hon. L.A. HENDERSON: Can the minister please advise what the threshold of attempting to obstruct is, and can the minister please provide examples?

The Hon. K.J. MAHER: I do not have particular examples, but I am advised this is a very common and reasonably standard provision in relation to these sorts of bodies and pieces of legislation and, given that it creates an offence, it would be up to a prosecuting authority and then for the courts to determine.

Clause passed.

Clauses 53 and 54 passed.

Schedule 1.

The Hon. K.J. MAHER: I move:

Amendment No 1 [AboriginalAff–1]—

Page 29, line 24 [Schedule 1 clause 11(2)]—Delete subclause (2)

Amendment No 2 [AboriginalAff–1]—

Page 30, lines 9 to 33 [Schedule 1 clause 13]—Delete the clause and substitute:

13—System of voting and determination of certain rules etc

(1) Voting in an election 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.

(2) Without limiting the rules that may be determined under this clause, the Electoral Commissioner must make rules relating to—

(a) the method of voting in an election; and

(b) the counting of votes in an election; and

(c) scrutiny of the counting of votes in an election; and

(d) the gender representation requirements set out in clause 4 of this Schedule.

(3) Without limiting clause 4 of this Schedule, the Electoral Commissioner must, in determining rules under this clause, as far as is reasonably practicable, ensure that the rules are consistent with the provisions of the Electoral Act 1985 relating to the election of members of the Legislative Council.

(4) Despite subclause (3) and any provisions of the Electoral Act 1985 to the contrary, a ballot paper is not informal only by reason of the failure of the voter to mark a particular number of preferences on the ballot paper.

Again, I want to thank the Hon. Tammy Franks for the work the Greens have done with the government on these amendments. They were suggested by the Hon. Tammy Franks, and we were able to use the resources of departmental and other officials to give effect to the suggestions that were put forward.

This makes a change to how the voting occurs. Instead of a first-past-the-post system, as was originally envisaged and I think as both APY users and maybe the First Peoples' Assembly of Victoria have, this now reflects a voting system that is one that we are all familiar with in the Legislative Council—I think, technically, the Inclusive Gregory method of single transferable vote that elects all of us.

The Hon. T.A. FRANKS: It will come as no surprise that the Greens welcome and will support this amendment. We thank the government for being open to it. I note it was an issue raised by Ben Raue of The Tally Room and also today with me by Deane Crabb, who has just got an instant reply saying that, yes, we have addressed this particular issue that would have been an offence to good democracy. I know that means that in the future people who are voting for the Voice will not be required to use three different electoral systems, they will only be required to do the standard two. It is certainly a fairer electoral process that we welcome and that we thank the government for assisting us with.

The Hon. C. BONAROS: I note for the record also that SA-Best will be supporting this. We did have discussions about this, and I mentioned to the Attorney my concerns around first past the post and also the issue of having different voting systems at the election, which we know only serves to confuse voters when they have to use different forms of voting, depending on which election we are dealing with. So I think this will serve us well in terms of streamlining those processes as well as making them consistent. I, too, would like to thank the Hon. Tammy Franks for raising this with the government and support the amendments.

The Hon. J.M.A. LENSINK: Yes, it does seem to have been an oversight that has been corrected, so I add my support to the comments of others.

Amendments carried.

The Hon. L.A. HENDERSON: I appreciate this may go more to a clause earlier in the bill, but it also applies to this as well. Could the minister please advise why a Confirmation of Aboriginality certificate obtained from a registered community organisation is required for government departments such as Housing SA in order to access Aboriginal housing but not required to qualify for the First Nations Voice?

The Hon. K.J. MAHER: This was a direct result of that second round of feedback after the bill was originally drafted, and there was a very strong view that we should make the barriers to vote as low as possible and as inclusive as possible. There are provisions and penalties for a false declaration in terms of voting that attract I think it is the maximum of four years in jail or the comparable fine as the Sentencing Act would provide and a mechanism for that, and certificates of Aboriginality would possibly come into play if there was that dispute system, but it was very strongly wanted in the second round of consultations to make the barriers to voting as low as possible.

The Hon. L.A. HENDERSON: In the earlier clauses there was a test that would be adopted to satisfy the section that a person was biologically descended from persons who inhabited Australia or Torres Strait Island before European settlement. Can the minister advise what would happen in instances where a person is unable to satisfy that test?

The Hon. K.J. MAHER: That test, or a similar enunciation of that as the first part of the tripartite test that was used by Brennan J in Mabo and then in many other jurisdictions, I know has quite a number of ways that has been found to judicially be able to be shown, which includes evidence from elders and others. I know in the case law that has developed in the interpretation of this there are a whole range of different ways that that has been able to be established.

Schedule 1 as amended passed.

Schedule 2.

The Hon. L.A. HENDERSON: Schedule 2, part 2, clause 2: in the draft bill of this piece of legislation from the First Nations Voice Bill 2022 there was not originally an amendment to the Constitution Act. Can the minister please explain why this was added in the last-minute version?

The Hon. K.J. MAHER: I do not think it is fair to describe it as a last-minute addition. It was out of the second round of consultation and a view put forward that this is an extremely important bit of legislation, an extremely important part of our democracy. I think I mentioned in the second reading sum-up speech that the document or the legislation that acts as basically the birth certificate of our democracy, whether it be at state or federal level, is worthy of mention in that, given the significance that many Aboriginal people have placed on what we are doing here today.

The Hon. L.A. HENDERSON: The amendment talks about making unique and irreplaceable contributions to South Australia that benefits all South Australians. I note that the rest of the act talks particularly about being a Voice for Indigenous communities. Can the minister please explain why the specific use of 'all' was made in the amendment?

The Hon. K.J. MAHER: I am happy to be able to provide the advice that it is the view that we believe First Nations peoples contribution—Aboriginal and Torres Strait Islanders—is of great benefit and great importance to all of us, not just First Nations people. What we seek to do with the Voice and elevating the Voice we believe will provide a benefit and lift us all and say good things about who we are as a state in general, not just for Aboriginal and Torres Strait Islander people.

Schedule 2 passed.

Preamble and title passed.

Bill reported with amendments.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:51): I move:

That this bill be now read a third time.

The Hon. D.G.E. HOOD (15:51): I would like to speak briefly to the third reading. In my second reading I made it very clear that I oppose this bill, and that remains my position, but I did want to make a few comments, if I may.

It does not take a genius to work out that this bill will pass this chamber, and I think it would not take a genius either to work out that, given the numbers in the other place, it is likely to pass the House of Assembly in a week or two's time—whenever it is. That being the case, I just wanted to say that it is my intention to fully get behind this bill and support the outcome.

It is not my preferred model by any stretch. I made that clear in my speech, but I did also say that the disagreement here is about the way of achieving what we all want, which is improved outcomes for our Indigenous population. They have, no doubt, faced very difficult circumstances and not had the improvements that all of us have sought to see for them over a substantial amount of time now.

Now we almost have a model in place. Should it pass this place and the House of Assembly, we will have a model in place. I just want to say publicly to the Indigenous population that whilst I opposed the bill, because I do not believe it is the right approach, I will be behind it nonetheless. I will support it and I will do what I can as an individual member to ensure its success.

Bill read a third time and passed.

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