Mon Aug 7

How does the South Australian Voice to Parliament work and what does it tell us about how a national Voice might work?

Written by Cornelia Koch, Senior Lecturer in Law, University of Adelaide

Australia will go to the polls later this year to decide whether to enshrine an Aboriginal and Torres Strait Islander Voice in the Constitution. Meanwhile, South Australia created its own First Nations Voice ^[1] in March.

South Australia used ordinary legislation rather than a referendum. But just like the proposed federal Voice, the South Australian Voice is a response to the call for structural reform in the Uluru Statement from the Heart ^[2].

What is the South Australian Voice to Parliament, and what can it tell us about how a national Voice might work?

Who are the members of the South Australian Voice?

The First Nations Voice Act 2023 ^[4] (SA) actually creates multiple Voices: a state First Nations Voice and several local First Nations Voices. South Australia is divided into six regions ^[5], each with a local First Nations Voice.

First Nations people who live in South Australia will vote for members of their Local First Nations Voice. Only First Nations people can stand for election to these Voices.

“First Nations person” is defined using the well-established test from the Mabo ^[6] High Court case: a person who is of Aboriginal or Torres Strait Islander descent, regards themselves as an Aboriginal or Torres Strait Islander person, and is accepted as such by an Aboriginal or Torres Strait Islander community.

Each local Voice will have two presiding members of different genders, with those presiding members forming the state Voice. This means the state Voice will have 12 members drawn from the local Voices.

The state First Nations Voice will be informed by advisory committees for Elders, Youth, Stolen Generations, and Native Title bodies.

The first elections ^[7] for the Local Voices will take place on March 16 2024. The state and local Voices will commence their work later in the year.

What will the South Australian First Nations Voice do?

The South Australian Voice will present its views to the state parliament and executive in a range of ways. This may be useful when thinking about how a national Voice might interact with the federal parliament and executive.

The proposed new section 129(ii)^[8] of the Commonwealth Constitution provides that the national Voice

may make representations to the parliament and the executive government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples.

However, the exact form and process of those representations are 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 of parliament
receiving notice of each bill introduced into parliament and having the right to address either, but not both, house of parliament in relation to that bill
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”. In a process familiar from the operations of some parliamentary committees, the relevant minister must, within six months of receiving such a report, table a report detailing their response and any action taken in response
providing a report or address on a specific bill if requested by the speaker of the House of Assembly or the president of the Legislative Council.

The South Australian First Nations Voice will engage with the executive government of South Australia by:

meeting with cabinet at least twice a year
attending a briefing with the chief executives of relevant government departments at least twice a year
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.

The South Australian government will be under no obligation to follow the Voice’s advice – just like the situation for the proposed national Voice.

What does this mean for the federal Voice?

The state Voice is completely separate from the proposed national Voice. The state Voice will commence its operations next year, regardless of the result of this year’s referendum.

Having said that, the state Voice helps us to imagine what a national Voice could look like. It is not the only model on the table; guidance can also be drawn from the Calma-Langton Report ^[10], existing bodies such as Victoria’s First Peoples Assembly ^[11] and the Voice Design Principles ^[12] adopted by federal cabinet.

Critically, while lessons may be drawn from these examples, the design of any First Nations representative body must be led by genuine, meaningful engagement with First Nations communities. The dialogues ^[13] that culminated in the Uluru statement are an outstanding example of such engagement.