South Australia’s First Nations Voice
Anna Olijnyk and Cornelia Koch
21.07.23
26 March 2023 is a drizzly Autumn Sunday morning and North Terrace, one of the major arteries in Adelaide’s CBD, is closed to traffic. A crowd of approximately 5,000 people gather for live music, cultural ceremonies, and speeches from community leaders. This isn’t a show at the famous Adelaide Fringe, or even its highbrow cousin the Adelaide Festival. We (two non-Indigenous legal academics) are attending a special sitting of the South Australian Parliament. The First Nations Voice Bill 2023 (SA) has just become law, making South Australia the first Australian jurisdiction to create a First Nations Voice in response to the Uluru Statement from the Heart.
This post first explains how South Australia’s First Nations Voice (‘the South Australian Voice’) might relate to the proposed Commonwealth Voice. We then examine the South Australian Voice model, highlighting some questions about membership and the method of selecting members, that might also have relevance for the future design of a Commonwealth Voice.
How does the South Australian Voice relate to the proposed Commonwealth Voice?
The Uluru Statement from the Heart serves as a common point of origin for the South Australian First Nations Voice and the proposed Commonwealth Voice. The Uluru Statement called for three structural changes: Voice, Treaty, and Truth. The South Australian Government has committed to taking steps to implement the Uluru Statement at State level. The South Australian Voice is the first step.
The South Australian Voice is separate from any Commonwealth Voice. The South Australian Voice will continue to operate regardless of the result of the referendum on the Commonwealth Voice.
Unlike the proposed Commonwealth Voice, the South Australian Voice is established by ordinary legislation rather than being constitutionally entrenched. This is not unusual at the State level – indeed, most of the South Australian Constitution is not entrenched, but contained in ordinary legislation. It does mean that, unlike the proposed Commonwealth Voice, the South Australian Voice can be abolished by legislation, and its key features and core functions can be changed by legislation.
If the referendum to establish a Voice at Commonwealth level is successful, the South Australian Voice might interact with the Commonwealth Voice in a variety of different and constructive ways. For example, the State Voice might pass on information or recommendations to the Commonwealth Voice, or the two Voices might work collaboratively, particularly in areas where there are complex Commonwealth and State legislative schemes, for example, cultural heritage protection (such has been contemplated by Stephen McDonald SC). Interaction such as this appears to be envisioned by the First Nations Voice Act 2023 (SA) (s 28(1)(d)), and could be provided for under the proposed s 129(iii) of the Commonwealth Constitution.
The name of the South Australian First Nations Voice is notably different from the name of the proposed Aboriginal and Torres Strait Islander Voice at Commonwealth level. The Uluru Statement called for a First Nations Voice. The Indigenous Law Centre has argued in its Issues Paper 1: The Constitutional Amendment that adopting the language of the Uluru Statement, rather than ‘imposing language on First Nations’ ‘respects the mutuality of the act of recognition.’
First Nations Voices in South Australia
The new First Nations Voice Act 2023 (SA) actually creates several Voices: a ‘State First Nations Voice’ (pt 3) and ‘Local First Nations Voices’ (pt 2). The State First Nations Voice will be a group of First Nations people (technically a corporation, s 23(1)(a)). Its primary function is to ‘engage with and provide advice to the South Australian Parliament and the South Australian Government on matters of interest to First Nations people’ (s 28(1)(c)). The members of the State First Nations Voice will be drawn from Local First Nations Voices who will be directly elected by First Nations people resident in South Australia.
How are the members of the Local First Nations Voices chosen?
The system of election to Local Voices is based on ‘Western’ electoral ideas rather than on traditional cultural rules or practices for selecting representatives. This might be a marked difference from how members of the Commonwealth Voice would be chosen. While the detail of choosing representatives to the Commonwealth Voice will be determined by Parliament after a successful referendum and community consultation, the Voice Design Principles, developed by the First Nations Referendum Working Group and approved by Federal Cabinet, emphasise that ‘[t]he Voice will be chosen by Aboriginal and Torres Strait Islander people based on the wishes of local communities’.
Of course, it is possible that community consultation reveals a desire by First Nations peoples to adopt the same or a similar system to that chosen in South Australia. The South Australian system emerged as the preferred approach following community consultation with South Australian First Nations people.
The process of developing the SA Voice model included two rounds of community engagement conducted by the Commissioner for First Nations Voice. Both rounds involved face to face engagement sessions for First Nations people in urban, regional and remote locations across the State. The first round assisted with determining the fundamental principles underpinning a First Nations Voice for South Australia. These informed the draft legislation (First Nations Voice Bill 2022 (SA)). The second round was consultation on the draft Bill.
On the question of how members of Local Voices should be chosen, a strong preference emerged in the first round of consultation for communities to be able to elect their representatives. This then required a determination of electoral boundaries, nominating processes and voting processes (First Engagement Report, p 36).
In the second round, the support for elections continued and most of the discussion focussed on the boundaries of proposed electoral regions (Second Engagement Note, p 9). Matters of importance raised for creating electoral regions were existing cultural connections, Nation group alliances and Native Title areas. There was support for strong representation of the regions, hence a preference for more regions, rather than less. Concerns about geographically very large regions were raised because the First Nations communities in them were regarded as too diverse with dissimilar interests. In such settings, especially smaller communities would struggle to achieve the best level of representation through a Local Voice.
Should the federal referendum succeed, it is likely that similar issues will have to be considered when determining how members of the Voice should be chosen from the regions. The Calma-Langton Report may assist as it proposes a model for Local & Regional Voices based in specific geographical areas, though the shape of regions and boundaries is left to further community consultation (pp xvi, 57-64).
In response to the two rounds of consultations in South Australia, the First Nations Voice Act 2023 (SA) divides the State into six regions, each of which will have a Local First Nations Voice. While six regions are provided for initially, the Act allows regulations to alter the number (s9(4)). This leaves scope for future adjustment, and we recommend any adjustments be undertaken in further consultation with First Nations communities.
Members of each Local Voice will be elected by First Nations people who reside in the region (Sch1, cl 7). The First Nations Voice Regulations 2023 (SA) provide for the ‘Central’ Local Voice (which includes Adelaide) to have 11 members and for each other Local Voice to have 7 members. Each Local Voice must have two presiding members of different genders (s 12) and will be gender balanced (sch 1, cl 4). Gender equity on the Voices is another fundamental principle that garnered strong supported in community consultations. Voting is not compulsory (Sch 1, cl 11(5)).
First Nations people are eligible to vote, if they are on the South Australian Electoral Roll and have completed a declaration of eligibility (Sch 1, cl 7), which confirms that they are a First Nations person and are eligible to vote (Sch 1, cl 3). The Act adopts the tripartite test first established in Mabo v Queensland (No 2) to identify a First Nations person. Therefore, a First Nations person will be of Aboriginal or Torres Strait Islander descent, regard themselves as Aboriginal or Torres Strait Islander and be accepted as such by the relevant First Nations community (s 4).
It is notable that eligibility to vote in elections for Local Voices in South Australia is more limited than eligibility to vote for the First Peoples’ Assembly of Victoria, an independent and democratically elected representative body of First Peoples in that state (though, unlike the SA Voices, set up for the explicit purpose of facilitating treaty negotiations in Victoria). The Assembly maintains its own electoral roll, completely separate from the State electoral roll. A First Nations person is eligible to enrol to vote in elections for the Assembly, if they are a traditional owner of country in Victoria (even if living interstate) or are resident in Victoria and have lived in the State for at least 3 out of the last 5 years and are 16 years or over (Assembly Elections 2023: Election Rules, Rule 12). In comparison, only First Nations people 18 and over who are on the State Electoral Roll and live in South Australia are eligible to vote for the Local First Nations Voices in South Australia.
The Local Voices have a range of functions, including receiving the views of their communities about matters of interest to First Nations people, and passing on those views to the State First Nations Voice (s 15(1)).
Who are the members of the State First Nations Voice?
The State First Nations Voice will be made up of the two presiding members of each Local First Nations Voice (s 24). This means the State First Nations Voice will be gender-balanced and will likely consist of 12 members (unless future regulations prescribe a different number of local regions).
The First Nations Voice Act 2023 (SA) establishes a number of advisory committees for the State First Nations Voice, including the Advisory Committees for Elders (s 30), Youth (s 31), Stolen Generations (s32), and Native Title Bodies (s 33). The members of these committees will not be members of the State or Local First Nations Voices. The establishment of these Committees responds to community views that stressed the importance of Elder and youth representation through the First Nations Voice model during the community consultation phase (First Engagement Report, p 20-1, 36).
The South Australian approach to achieving gender balance on the Local and State Voices could serve as inspiration for a Commonwealth Voice, as one of the Voice design principles states that ‘[t]he Voice will be … gender balanced’. The same design principle also suggests that the Voice will ‘include youth’, while another design principle maintains that the Voice will be ‘empowering, community-led, inclusive, respectful and culturally informed’. An elaboration of the latter principle explains: ‘The Voice would consult with grassroots communities and regional entities to ensure its representations are informed by their experience, including the experience of those who have been historically excluded from participation.’ It would be possible to achieve some of these aims through establishing advisory committees to the Voice similar to the South Australian structure.
Disqualification from membership of First Nations Voices
The First Nations Voice Act specifies several grounds that will disqualify a First Nations person from nominating for, or holding office as, a member of a Local First Nations Voice (and, therefore, from being a member of the State First Nations Voice).
According to Schedule 1, cl 8(2) a person is ineligible to nominate for, or hold, office as a member of a Local First Nations Voice if the person:
is serving a sentence of imprisonment for an offence, or is remanded in custody in relation to a charge of an offence; or
has been found guilty of a serious offence within the preceding 2 years; or
is, pursuant to a bail agreement, parole or other agreement, restricted from travelling within the State…
In our view, a relaxation of these grounds might allow the Voice to perform its functions more effectively. We argue that, having regard to the over-representation of First Nations people in the criminal justice system, these criteria may have the undesirable result of reducing the pool of people who might become members of the Local and State Voices. These very people might have gained valuable insights into First Nations people’s encounters with the justice system, making them well placed to advocate for structural improvements to that system. As Dani Larkin and Kate Galloway have argued, ‘[t]o refuse membership of a cultural collective for the very reason that it is needed, ignores the nature and purpose of the Voice.’
The breadth of the exclusions becomes apparent when we examine each of the grounds for ineligibility:
A person is ineligible even if they have not been convicted of any offence, but are on remand or bail.
‘Serious offence’ captures a range of relatively low-level offending, including, for example, receiving stolen property, and possession of an object with the intention to commit property damage. Several ‘serious offences’ carry a maximum penalty of just 2 years imprisonment. A conviction for a ‘serious offence’ will disqualify a person regardless of the penalty imposed or other indications of the seriousness of the offending.
A person in prison at the time of nomination is ineligible, even if they will be out of prison for most or all of their term on the Voice. This seems unnecessarily exclusionary, given the prevalence of short-term sentences for First Nations people.
We think less stringent exclusions would open membership of the Voice to people who may maximise the Voice’s ability to contribute to policy improvement.
What will the South Australian First Nations Voice do?
The functions conferred on the South Australian Voice may be instructive when envisioning how a Commonwealth Voice might interact with Parliament and the Executive. The proposed new s 129(ii) of the Commonwealth Constitution provides that the Federal Voice ‘may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples’. The precise form, nature and effect of these representations are not specified in the proposed constitutional amendment; instead, a new s 129(iii) would give Parliament power to make laws ‘with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.’
The exact form and process for the Commonwealth Voice to ‘make representations’ to the Executive and Parliament is to be determined in future legislation. The South Australian Voice provides a concrete example of what those interactions might look like.
The South Australian Voice will engage with the South Australian Parliament by:
Delivering an annual report and address to a joint sitting of both Houses (s 38);
Receiving notice of each Bill introduced into Parliament (s 39) and having the right to address either, but not both, House of Parliament in relation to that Bill (s 40).
Providing Parliament, at any time, with ‘a report on any matter that is, in the opinion of the State First Nations Voice, a matter of interest to First Nations people’ (s 41). In a process familiar from the operations of some parliamentary committees, the Minister must, within 6 months of receiving such a report, table a report in response detailing the relevant Ministers’ response and any action taken in response (s 41(4)).
Upon request of the Speaker of the House of Assembly or the President of the Legislative Council, providing a report or address on a specific Bill (s 42).
The South Australian First Nations Voice will engage with the Executive Government of South Australia by:
Meeting with Cabinet at least twice a year (s 42);
Attending a briefing with the Chief Executives of relevant administrative units of the government (ie government departments) at least twice a year (s 43);
Participating in an annual ‘engagement hearing’, reminiscent of the Budget Estimates process, in which presiding members of the Voice can ask questions of relevant ministers and Chief Executives about the ‘operations, expenditure, budget and priorities’ of administrative units (s 46).
The South Australian model is not the only model for interactions between a Voice, Parliament and the Executive; the Calma-Langton Report provides one alternative, based on the Federal Parliament's Parliamentary Joint Committee on Human Rights. As Gabrielle Appleby has pointed out, design of the inter-institutional relationship between the Voice and other organs of government ‘must be done with an awareness of the work of, strengths, and nature of’ each institution. The design and operation of the South Australian Voice will provide new insights on how to optimise these relationships.
In addition, the South Australian First Nations Voice has a range of other functions such as engaging with and providing advice to other organisations and other levels of government, including the Commonwealth and other States and Territories (s 28(1)(d)) (which we discussed above), and liaising with the Local First Nations Voices to ascertain the views of First Nations people around the State about issues that affect them (s 28(1)(b)).
The South Australian Voice does not have power to make or veto legislation. Nor will it deliver programs to communities.
When will the South Australian First Nations Voice start its work?
The first elections for the Local Voices will take place on 16 March 2024, with the State and Local Voices to commence their work later in the year. Candidate nominations open on 22 January 2024, and enrolment to vote closes on 12 February 2024.
This follows the South Australian Government’s earlier announcement that the first elections would occur on 9 September 2023. The elections were later postponed in order to give participants more time to prepare and to avoid confusion between the South Australian Voice elections and the Commonwealth Voice referendum.
The efficacy of a Voice depends, of course, on the willingness of others to listen. The importance of hearing and listening to the voices of First Nations people has also been recognised in a new section of the South Australian Constitution (Constitution Act 1934 (SA):
3—Recognition of importance of First Nations voices
(1) The Parliament of South Australia recognises the importance of listening to the voices of First Nations people if there is to be a fair and truthful relationship between the First Nations and nonFirst Nations people of South Australia.
(2) The Parliament acknowledges that the voice of First Nations people has not always been heard in Parliament, and intends that, through the First Nations Voice Act 2023, that voice will be heard, and will make a unique and irreplaceable contribution to South Australia that benefits all South Australians.
The operation of the South Australian Voice will, no doubt, provide lessons about best practice in implementing the Uluru Statement from the Heart. The establishment of the South Australian Voice is a significant milestone on the journey to take up the Statement’s invitation to walk with First Nations ‘in a movement of the Australian people towards a better future.’
Parts of this post were first published in The Hilarian, the publication of the University of Adelaide Law Students’ Society.
Anna Olijnyk is a Senior Lecturer and Director of the Public Law and Policy Research Unit at the University of Adelaide.
Cornelia Koch is a Senior Lecture at Adelaide Law School, The University of Adelaide. Her interests are in public and comparative law as well as human rights.
Suggested citation: Anna Olijnyk and Cornelia Koch ‘South Australia’s First Nations Voice’ (21 July 2023) <http://www.auspublaw.org/blog/2023/7/south-australias-first-nations- voice/>