A special sitting was held by the South Australian Parliament on Sunday 26 March 2023 to pass the First Nations Voice Bill 2023 (SA) into law.
The Bill was introduced into the Legislative Council on 9 February 2023. The Bill received the Governor’s assent in a special ceremonial sitting on the steps of Parliament on Sunday and is now legislation: the First Nations Voice Act 2023.
The voice to Parliament has been widely publicised, but what is “the voice”? How will it work?
The Act in fact creates a series of “voices” in order to capture the diverse views of First Nations people from across the State for the purpose of informing Parliament and government administrative units. Each “voice” is a corporate entity which operates independently of control and direction by the Crown or any Minister.
The role of the voice bodies is consultative and advisory. The Preamble to the Act states (3) It is now intended that there be a platform for Aboriginal and Torres Strait Islander people to be better heard by government so that they have more of a say in the decisions that affect their lives. The State First Nations Voice will make direct representations to Parliament and government administrative units. It is not given any direct power in relation to the making of legislation or administrative decisions.
Local First Nations Voices
Six electoral regions of the State are established in respect of which a Local First Nations Voice is created with governing members to be elected by First Nations persons in accordance with Rules in Schedule 1 of the Act. Election of the governing members of each Local Nations Voice will be held concurrently with the State general Parliamentary election (required to occur every four years). Voting for Local First Nations Voice members will be open to First Nations persons (as defined in section 4 of the Act) who are on the electoral role and have submitted a declaration of eligibility to the returning officer.
Local First Nations Voice members are to elect two members (one male and one female) to be joint presiding members (section 12).
The functions of the six Local First Nations Voices are set out in section 15 and include the following:
- to consider and discuss matters of interest to First Nations people in its region;
- to promote, encourage and assist First Nations people in its region to communicate their views on matters of interest;
- to receive the views of First Nations people in its region and pass those views on to the State First Nations Voice;
- to liaise and collaborate with the State First Nations Voice on matters of interest to First Nations people in its region;
- at the discretion of the Local First Nations Voice, to collaborate with and assist public sector agencies and other organisations in the development of policies and procedures that affect First Nations people in its region;
- at the discretion of the Local First Nations Voice, to engage with local government and with other organisations on matters of interest to First Nations people in its region;
- such other functions as may be assigned to the Local First Nations Voice by or under this Act or by the Minister.
State First Nations Voice
The joint presiding members of each Local First Nations Voice form the State First Nations Voice (section 23). The State First Nations Voice must elect one male and one female member from the joint presiding Local Voice members to be joint presiding members of the State First Nations Voice.
The functions of the State First Nations Voice are set out in section 28 of the Bill and include the following:
- to represent the diversity of First Nations people in South Australia;
- 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;
- to engage with and provide advice to the South Australian Parliament and the South Australian Government on matters of interest to First Nations people;
- 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;
- to assign names to regions constituted for the purposes of this Act;
- such other functions as may be assigned to the State First Nations Voice by or under this Act or by the Minister.
The State First Nations Voice will also establish several advisory committees to advise the State First Nations Voice on specific matters including:
- First Nations Elders Advisory Committee (section 30);
- First Nations Youth Advisory Committee (section 31);
- Stolen Generations Advisory Committee (section 32);
- Native Title Bodies Advisory Committee (section 33);
The State First Nations Voice may also establish any other committees it considers appropriate (section 34).
Interaction with Parliament
The Act contains numerous provisions that seek to foster a dialogue between the State First Nations Voice and Parliament and separately between the State First Nations Voice and the Cabinet and government departments.
The State First Nations Voice is required to present an annual written report to parliament summarising its operations for the preceding year, as well as any other matters of interest to First Nations people (section 38).
The Act requires that the State First Nations Voice be notified of all bills introduced into Parliament (section 39).
The State First Nations Voice is entitled to address Parliament in relation to any bill that has been introduced (section 40). However, Parliament is not prevented from debating and passing bills prior to being addressed by the State First Nations Voice.
The State First Nations Voice may also provide a report to Parliament on any matter it considers to be of interest to First Nations people (section 41). In response to being provided with a report, the Minister responsible for administering the Act must refer the report to Ministers responsible for an area mentioned in the report and prepare a report setting out the Government’s response and proposed actions (if any) to the matters raised in the report.
Parliament may also request that the State First Nations Voice provide a report and/or address Parliament in relation to a specified bill (section 42). However, the State First Nations Voice cannot be compelled to accede to those requests.
Interaction with Government and Chief Executives
The State First Nations Voice will also meet twice per year with Cabinet and attend briefings with the Chief Executives of each administrative unit of the Public Service (sections 43 and 45).
The Premier is also required to conduct an annual engagement hearing with each Minister, and the Chief Executive of each administrative unit of the Public Service nominated by the State First Nations Voice (section 46). The purpose of the engagement hearings is, among other things, to allow the State First Nations Voice to ask questions of the Ministers and Chief Executives relating to the operations, expenditure, budget and priorities of administrative units as they affect First Nations people.
Recognition and Acknowledgement of First Nations people
The Act inserts the following recognition and acknowledgement into the South Australian Constitution Act 1934:
(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 non-First 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 Constitution Act does not itself establish or determine the powers of the voice.
Timetable for the First Nations Voice
The Act is now operational with the Government announcing that it expects that elections will be held in coming months with Local and State Voices to be functioning before the end of the year.
The extent to which the First Nations Voice influences Parliament and government decision making will be watched with keen interest. Of particular legal interest is the extent to which representations made by the First Nations Voice might be regarded as “relevant considerations” for government decision-making.
If you have any questions about the First Nations Voice Act you can contact Ali Field on 0418 568 954 or at email@example.com.