Listening out for impact of the State Voice

In his most recent Opinion Piece written for InDaily, TGB Senior Lawyer & Business Advisor shares his views about South Australia’s First Nations Voice to Parliament.

https://www.indaily.com.au/opinion/2024/04/05/listening-out-for-impact-of-the-state-voice

With representatives now elected for South Australia’s First Nations Voice to Parliament, Morry Bailes reviews the legislation and intent underpinning it and how it expects to achieve its aims.

Now that the vote to elect our State Voice has been conducted and the elected people who will constitute the assembly of the Voice are known, it is helpful to reflect on how the Voice will work, and to consider ancillary questions such as how its bureaucracy will operate and the nature and extent of its powers.

In short, what are we to expect from the laws passed by our State Parliament?

It is now all the more important because, unlike the recently proposed Commonwealth Voice, the South Australian public was not asked to vote for a State Voice.

It was a concept designed from ground up by the Parliament itself, and the voting public was given little information about it other than the announcements about the intention of our state government to first create it and the subsequent announcement that, although opposed by the Liberal opposition, it had passed through State Parliament.

The answers arise in part from a reading of the First Nations Voice Act 2023 (the Act), passed, self-evidently, through the Parliament last year. The descriptor First Nations People is relatively new in its application in Australia. For many years the term indigenous people was adopted following the then example of the United Nations. ‘The word ‘indigenous’ was first used officially by the United Nations in 2002 in its political declaration of the World Summit on Sustainable Development’, according to Taylor and Francis. However, it was a term not favoured by Australian Aboriginal and Torres Strait Islander people.

First Nations People was a description most commonly used in Canada, but caught on here because it acknowledged that Aboriginal and Torres Strait Islander people were both the first occupants of Australia and second, existed as separate nations within Australia.

It is now commonplace parlance and is the term used throughout the legislation giving birth to the South Australian Voice. So how does the Voice work?

How are people elected to the Voice?

First is to answer how the Voice comes to exist.

Only First Nations people may vote for Voice representatives. There is an election to create regional (Local) Voices, and from those Voices is formed the central (State) Voice. To avoid confusion, South Australians may ultimately hear from more than one Voice, although there is only one State Voice empowered to make representations to State Parliament. What then is the definition of a First Nations person? In that respect the Act adopts the common definition used federally in Section 4 as follows:

Meaning of “First Nations person”

(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. 

(2) For the purposes of this Act, a person will be taken to be of Aboriginal or Torres Strait Islander descent if the person is biologically descended from the persons who inhabited Australia or the Torres Strait Islands (as the case requires) before European settlement.’

The definition therefore is quite broad and does not necessarily rely on any empirical genealogical evidence, though it can. This is not unimportant because the people of South Australia will need to be convinced of the legitimacy of a Voice that is entitled to speak directly to the State Parliament, to State Cabinet and to CEOs of State agencies, on behalf of the whole of the South Australian Aboriginal population, on issues that may impact all South Australians – for that is what the legislation purports to create.

Likely, this challenge has not been helped by what appears to be a low voter turnout. Although the state government sought to put the best blush of it by describing it as “a successful first election”, of the nearly 30,000 registered First Nations voters, less than 10 per cent voted.

“If that was success, what then is the definition of failure?”, asked someone on social media.

The Australian Bureau of Statistics tells us there are about 1.86 million South Australians, thus the Voice has been elected by a little over 0.1 of one percent of the overall population. Why is that important? It is important because it returns us to the question of legitimacy, as the powers of the Voice are not inconsiderable.

What are the powers of the Voice?

Perhaps this question should be framed in the plural, for as explained above there are in fact multiple Voices contributing to a central Voice. It will be important as we proceed for the Attorney-General and Minister for Aboriginal Affairs to remove as best as possible any confusion that may arise in the minds of the South Australian public about the role and function of the Voices, regional and central.

The writing of this article is also intended to remove any perceived complexity of the legislation, which is actually quite simple, albeit that it is equally true to say of its success, the proof of the pudding will be in the eating. It is how this newly created system operates in the real world that will answer current questions, as well as the most critical element of all; what will it achieve?

There is no legal necessity to take on board and follow the advice that may be given by Aboriginal peope in South Australia, just to listen to it.

As well as powers, there are also obligations created. Each Voice is a body corporate capable of suing or being sued, it can incur rights and liabilities, it may hold and dispose of property, and is not a Crown agency or instrumentality, enjoying independence. Section 28 of the Act sets out the State Voice’s functions as follows:

(1) The State First Nations Voice has the following functions: 

(a) to represent the diversity of First Nations people in South Australia; 

(b) to liaise with the Local First Nations Voices to ascertain their views in relation to matters of interest and to present those views to the South Australian Parliament and the South Australian Government and other bodies; 

(c) to engage with and provide advice to the South Australian Parliament and the South Australian Government on matters of interest to First Nations people; 

(d) at the discretion of the State First Nations Voice, to engage with and provide advice to other levels of government and other organisations (including, to avoid doubt, the Commonwealth and other States and Territories) on policy and procedures that relate to matters of interest to First Nations people; 

(e) to assign names to regions constituted for the purposes of this Act; 

(f) such other functions as may be assigned to the State First Nations Voice by or under this Act or by the Minister. 

(2) The State First Nations Voice must, in carrying out its functions, endeavour to represent the views of First Nations persons in the State. 

(3) Subject to this Act, the State First Nations Voice has such powers as may be necessary or expedient for the performance of the State First Nations Voice’s functions. 

(4) The State First Nations Voice cannot delegate a function under this Act.’

It also has the power and obligation to set up a variety of advisory committees that report to it such as a Youth Committee, a Stolen Generations Committee, and a Native Title Committee amongst others.

It must deliver an annual report and annual address to Parliament, it may meet with Cabinet, attracting Cabinet secrecy rules and conventions, twice a year as arranged with the Premier, meet with CEOs of public service agencies as well as use the agencies’ administrative resources, be informed of, and if it sees fit, make representations on all Bills before State Parliament, and establish its own Secretariat.

As to the critical question of outcomes, there are no performance targets in the Act to be achieved nor measured outcomes to be accomplished, as may be seen by a read of section 28.

The aim of the legislation seems be to enable the State Voice, drawing on its quite far-flung network of local Voices and advisory Committees, the ability to be heard by the Parliament, the Cabinet and chiefs of Executive Government.

Will it work?

Having had many, many Aboriginal and Torres Strait Islander advisory bodies in the past both State and Federal, the real question is whether, aside from the term, ‘the Voice’, this set up is really any different from the past?

Complaints by Aboriginal people having experienced unrepresentative bodies in the past proliferate, so is this network of Voices and Advisory Committees elected by under 10 per cent of registered Aboriginal people in this state going to break new ground, and as has been promised, solve the challenges facing South Australian Aboriginal people?

There is no answer to that question without the passage of time and the value of the experience.

The Australian voter was sceptical about the Federal Labor Government’s promise of a silver bullet solution at a Commonwealth level, resoundingly rejecting a Commonwealth Voice. Is there any reason to believe there will not be the same scepticism at a State level, especially when our State recorded the second highest ‘No’ vote in the nation?

However, there are distinct differences at a State level.

Firstly, what we were asked to do in the recent referendum was to amend the Australian Constitution to enshrine a Voice as a separate chapter. For many that was a step too far. By contrast the South Australian Constitution, which is in fact contained in an Act of Parliament, the Constitution Act, was only cosmetically amended to accommodate the creation the State and Local Voices. Rather the Voice Act became the separate, distinct and primary piece of legislation delivering the Voice. If it has flaws in its practical operation, State Parliament is at liberty to amend and improve it.

That is a very different concept to what the Prime Minister was trying to sell to the Australian voter with regards to the recent referendum, which once it had amended the Australian Constitution would have been practically impossible to undo. Whether you agree or disagree with the creation of a State Voice, it is a toe in the water when compared to the likely irreversible amending of the Australian Constitution.

Another point to be made about the State Voice is that whilst it provides quite sophisticated pathways for Aboriginal people to be heard, it seemingly creates no obligation on parliamentarians to act on what they have heard. There is no legal necessity to take on board and follow the advice that may be given by Aboriginal people in South Australia, just to listen to it.

In one sense this preserves the independence, sovereignty and integrity of Parliament. It removes the legal concerns held by many at the time of the impending Commonwealth referendum about a constitutionally enshrined Voice at a Commonwealth level, that if Parliament were to ignore the advice of the Commonwealth Voice, it would have recourse under the Constitution to the High Court, potentially undermining the sovereignty of Federal Parliament. Equally, do we risk creating with the State Voice a toothless tiger? It can be seen, it can be heard, but it has no power to cause any parliamentarian to lift a finger and act on the advice.

Worse still, with the creation of the Voice the longstanding Aboriginal Lands Parliamentary Standing Committee (ALPSC) was collapsed.

It was regarded by the government as redundant and that its functions could be subsumed into the Voice. Albeit that committee had, by its very terms of reference, limitations, it was part of the machinery of the Parliament designed to deliver lands outcomes for South Australian Aboriginal people and operated successfully in a tri-partisan way. Moreover, its terms of reference could have been expanded. It could have worked with the State Voice to bring concerns of Aboriginal people directly to a standing Parliamentary committee as had been done in the past. Instead, it is no more. There is no standing committee for Aboriginal affairs in our State Parliament.

Another criticism of the model is that it is heavy on symbolism but light on practical functionality. Section 29 of the Act for instance provides that the State Voice is to meet not less four times, and not more than six times a year. That seems a bit light on given what it is expected to achieve. No company board would consider meeting only four times a year and consider it had competently discharged its directors’ duties. How can the Voice?

As to the idea that with that infrequency of meeting, representatives can just bowl up to Parliament in an informed way and be heard on a piece of legislation seems improbable.

Indeed it has an air of unreality about it.

Why wouldn’t an Aboriginal Affairs Parliamentary Standing Committee be retained as an immediate ‘go to’ body within the Parliament? Instead, are Voice representatives simply to wander in at a second reading and be heard? This is suggestive of a lack of thought about how precisely such representations will be meaningfully made.

The likely efficacy of the Voice must be evaluated against the dismantling of the pre-existing Parliamentary architecture only there for the benefit of Aboriginal South Australians.

That detail however may be lost on the public at large who will expect results.

The newly created State Voice is funded by the South Australian taxpayer. It means that we the taxpayer will be looking for deliverables, for outcomes and for value for money spent. Further in a political sense, just as the Prime Minister made the intended Commonwealth Voice his own, so has the South Australian Premier in respect of the State Voice. Why else would the State Government announce to the South Australian electorate a less than 10% vote by registered First Nations voters was a ‘successful vote’, leaving most of us scratching our heads, and wondering if it may alternatively signal an early lack of interest in the system by Aboriginal people themselves.

As remarked on earlier, only time will tell. Nevertheless, both the Premier and Attorney-General are heavily invested in the process so we will likely be regaled about the continuing success of the Voice. It becomes imperative therefore in answering the question ‘will it work?’, that the South Australian public demand and be provided with empirical evidence that the Voice is delivering results. Each and every person elected to the Voice will also now be accountable not just to the Parliament but also to the people of South Australia. Correspondingly it means that parliamentarians who ignore the advice proffered through the Voice by our First Nations Peoples will have some explaining to do, particularly the members of the government who created the Voice.

It would be a cruel irony if in the pursuit of an outcome for South Australian Aboriginal people, the government has rushed a model that is underbaked in its practicalities, is light on in its funding and has under estimated the commitment required by its representatives, resulting in its failure, which will neither be taken kindly by the State’s First Nations people nor the public. Let us hope the government in all its earnestness has not set the Voice up to fail.

Will Voice representatives be paid?

The responsibility of being elected to a Local Voice or to the State Voice gives rise to a question that several people have asked me, is it a paid gig?

The answer is yes, but hardly sheep stations.

For a Local Voice representative the sum is $3,000. At that level it looks more like a labour of love. Presiding members at the Local Voice level who become State Voice representatives receive a bit more, $10,500, and a presiding member of the State Voice receives $18,000. Members are entitled to a remunerated rate to attend meetings, and as one would expect, have travel and other expenses paid. The Secretariat is to be started with a sum paid to its Director of up to $250,000.

The whole Voice concept has a four-year budget of a bit over $10m, however the nature of bureaucracies often means budgets are exceeded.

Nonetheless, this can hardly be described as a major expense to the public purse, which makes one wonder how on earth it will deliver on the expectations of South Australians. That said, it must be acknowledged that the Voice is entitled to borrow the resources and support of other public agencies, so the budget is probably no reflection of the actual total cost of creating a functioning Voice system.

Here is also betting we will never be provided with a complete cost versus benefit analysis, without going to every expenditure sheet of every public agency that supports the Voice. That, for present purposes, is a job for the future. It is also de rigueur for governments it seems, to try to mystify public expenditure as much as possible to avoid questions. This is no reflection at all on the Voice members but is in the detail of the way the Government has drafted the legislation.

Are there other examples to follow?

Although the South Australian Voice is being touted as Australia’s first Voice to Parliament, there have been and remain many Aboriginal representative bodies. The Victorians established a First Nations Assembly in 2019.

It was supported by the Labor Government and the Greens, and opposed by the Liberal Party. Sound familiar? The Victorian Assembly was ostensibly created to inform the Victorian Parliament and Victorian people about a Treaty.

The objects and functions of the South Australian Voice are broader. There are however similarities. When the Victorian Assembly was elected only 7% of eligible Aboriginal and Torres Strait Islander people voted.

The ACT has the Aboriginal and Torres Strait Islander Elected Body. Queensland has the Torres Strait Regional Authority. Each of these bodies have different functions, and aside from their consultative nature, it is hard to draw conclusions and comparisons that might assist in an understanding of how our Voice may progress, and with what success.

We are the first Australian state with an Aboriginal Voice to Parliament; the First Nations Voice. How is one to react?

Although we will be expecting a lot of it, perhaps at least to start with we could suspend the scepticism, wish those elected the very best in their endeavours and hope for positive outcomes, for there are veritable mountains to conquer in Aboriginal Australia.

And unlike the Federal Government’s abortive attempts to convince us of the merits of a Constitutionally enshrined Voice, our State Government has not promised the earth; it has promised a start.

At least we can hope.