Thursday, 30 October 2025
Bills
Statewide Treaty Bill 2025
Please do not quote
Proof only
Bills
Statewide Treaty Bill 2025
Committee
Resumed.
Clause 1 further considered (14:06)
Joe McCRACKEN: My questions relate to clause 5. Clause 5(3) reiterates protection of native title rights under the Native Title Act 1993, and that is an act of Commonwealth Parliament, I realise. Why was that replication necessary when section 109 of the constitution confers the Commonwealth primacy anyway?
Lizzie BLANDTHORN: Treaties do not impact the state’s existing responsibilities to traditional owners under the Traditional Owner Settlement Act 2010, Aboriginal Heritage Act 2006 and Native Title Act. Further to that, traditional owner groups with rights under these acts may choose to negotiate a traditional owner treaty with the state as part of a broad delegation, but this really just makes that explicit.
Joe McCRACKEN: Does the interpretive requirement in clause 5(1) amount to a statutory non-derogation clause binding courts to construe all subsequent provisions consistently with Commonwealth law?
Lizzie BLANDTHORN: Yes.
Joe McCRACKEN: Could clause 5(2) be used to argue that future actions of Gellung Warl or the state must be tested for compatibility with native title expectations, potentially creating uncertainty in that space?
Joe McCRACKEN: Okay. Well, I just want to clarify to be 100 per cent sure I understand, because clause 5(2) says:
The provisions of this Act must be interpreted in a way that does not prejudice native title rights and interests to the extent that those rights and interests are recognised and protected by the Native Title Act 1993 of the Commonwealth.
So, my question was: must the state essentially test against those requirements to make sure that whatever happens in here does not go against the requirements that already exist.
Lizzie BLANDTHORN: It simply needs to consider the relevant native title act, Mr McCracken.
Joe McCRACKEN: I will move on to clause 6. Clause 6 imposes reciprocal duties of good faith. Are these duties enforceable in a court or a tribunal or are they just political obligations?
Lizzie BLANDTHORN: The good faith obligation, Mr McCracken, means that when the state and Gellung Warl engage with each other they will have to do so in good faith, which generally requires that they act honestly, fairly and reasonably. More precisely, the good faith obligation is an obligation on the state government and the three arms of Gellung Warl to conduct themselves in good faith when engaging with each other in relation to the exercise of powers and functions by the arms of Gellung Warl. The obligation does not apply to the Parliament or the judiciary.
Joe McCRACKEN: My question is: are these duties enforceable in a court or tribunal? That was the crux of the question there.
Lizzie BLANDTHORN: Yes.
Joe McCRACKEN: Which ones?
Lizzie BLANDTHORN: The good faith obligation in clause 6 will be enforceable in the court, Mr McCracken.
Joe McCRACKEN: What is the standard of proof required to establish bad faith? And who would have a standing to allege bad faith?
Lizzie BLANDTHORN: Good faith, Mr McCracken, generally means that the state government and Gellung Warl must act honestly, fairly and reasonably when engaging with each other, and the obligation aims to support that unique relationship between state government and Gellung Warl. The statewide treaty, by setting a standard of behaviour for the parties to support positive relations and minimise adversarial approaches to engagement, is setting that standard for good faith.
Joe McCRACKEN: Minister, my question was more around: what is the standard of proof required to establish that either bad faith exists or there is the lack of existence of good faith?
Lizzie BLANDTHORN: What good faith will require will depend on the circumstances; for example, in relation to a request for information, this would require making genuine reports to engage with the request and identify and provide relevant documents and to seek to respond in a timely manner, taking into account the nature of the request to avoid relying on technicalities or administrative reasons to not provide information. The good faith obligation is not, however, intended to disrupt any lawful basis for not providing information or responding to questions such as legal professional privilege or public interest immunity, for example. The First Peoples’ Assembly, Nginma Ngainga Wara and Nyerna Yoorrook Telkuna are also required to engage with the state government in good faith also when exercising powers and performing functions.
Joe McCRACKEN: I still do not have a clear understanding of what the standard of proof is.
Jacinta Ermacora interjected.
Joe McCRACKEN: It is my question, thank you. I would like to know what the standard of proof is to determine whether there has been in fact bad faith or the absence of good faith. How can someone prove that?
Lizzie BLANDTHORN: Just at the outset, it is the right of the representing minister to talk to the relevant advisers in the box, and interjections towards those advisers in the box is not appropriate. There are numerous provisions across various pieces of legislation that require good faith, and the court determines that. In these same instances the court would determine it too.
The DEPUTY PRESIDENT: I do not think Mr McCracken was actually interjecting towards the advisers. He was just trying to provide a little bit of assistance to you in what he was actually looking for.
Joe McCRACKEN: I interjected myself anyway. My next question: could a failure of good faith render a decision or negotiation void or subject to judicial review under the Administrative Law Act 1978?
Lizzie BLANDTHORN: They would be matters for the courts, Mr McCracken.
Joe McCRACKEN: How does this clause interact with section 38 of the Charter of Human Rights and Responsibilities Act 2006, which already requires public authorities to act compatibly with human rights?
Lizzie BLANDTHORN: The charter rights will continue to apply, and the same obligations in relation to good faith will continue to apply.
Joe McCRACKEN: I have just got one more on this clause, then we can go to someone else for a bit. Is there a risk that clause 6 creates reciprocal obligations that are asymmetrical – for instance, binding the state but not enforceable against Gellung Warl due to Gellung Warl being independent?
Lizzie BLANDTHORN: It works both ways.
Melina BATH: Minister, one of the key things that I think universally both houses agree on is the need for Closing the Gap targets to be improved nationally – nationally agreed Closing the Gap. Indeed we heard many of the members of Parliament from the Labor Party talk about let us try something different in their contributions, and I could quote some of them. One of the things that we know is that over the past 11 years the Labor government has been in and that the Closing the Gap annual data report clearly states that child protection is going backwards, and that unfortunately, very tragically, Aboriginal children face a 20 times rate of non-Aboriginal children in out-of-home care. In terms of incarceration, it is 14 times. Tragically suicide is three times higher. On the children thriving priority reform, 33.9 per cent of children commencing school were developmentally on track in 2024. As I said, 50.3 per 100 children were in out-of-home care in 2024. The number of adults in the criminal justice system was 2300 per 100,000. And on social wellbeing, 30 out of 100,000 people very tragically took their own life in 2023, which that data is for. Minister, how will this treaty – and in what timeframe – will it achieve significant Closing the Gap reform in the areas that I have just discussed?
Lizzie BLANDTHORN: Establishing Gellung Warl will make sure that the First Peoples community can design and deliver or inform the government on practical solutions for their communities to help close the gap, so that every Aboriginal Victorian has the same opportunities as anyone else in this state. Gellung Warl’s accountability functions will also ensure that we have an independent mechanism to transparently measure and report on how well the government is doing at closing the gap and where we need to improve.
Indeed, governments across Australia agree that the gap between First Peoples and the broader community needs to be closed and have sought to achieve this through the National Agreement on Closing the Gap since 2008. But what is also clear is that this approach on its own has failed to yield meaningful results. The Productivity Commission has said that is due to government’s failures to understand the scale of change needed and to embrace shared decision-making with First Peoples and improve accountability, including through treaty.
You spoke to the over-representation of children in out-of-home care. As the minister responsible for children, this is something that I have regularly acknowledged in this chamber and indeed have apologised for their continued over-representation, in a number of different forums, including in evidence I gave at the Yoorrook Justice Commission. But what has been really clear and demonstrable within my own portfolio, and which I spoke to in my own contribution yesterday, is that when we give Aboriginal people the right to make the decisions about their families and their children themselves, we get better outcomes. And in our Aboriginal Children in Aboriginal Care program and through our Protecting Boorais program we are ensuring that there is a greater degree of self-determination reflected in the care of Aboriginal children, particularly in the out-of-home care system, and that is an important part of ensuring that we get better outcomes for those children in particular.
Melina BATH: This is a very big issue – the biggest issue that I think that we face in Victoria in terms of outcomes for the Aboriginal community. You mentioned a couple of things. You mentioned practical solutions, so by setting up treaty and having the three arms of Gellung Warl practical solutions will come forth. Minister, after 11 years – although you have not been in that particular portfolio for that time – how and why has the government failed to deliver practical solutions to close the gap? Now it is going to try something different and expect that the burden of that outcome will be on Gellung Warl.
Let us let us look at that. There will be the First Peoples’ Assembly – 80 members all up. The bill says that there can be 80 members, but 33 is the number that is touted often. How is that responsibility going to be carried out and how is it going to be clearly shared with not only the whole of the 66,000 Aboriginal and Torres Strait Islander people who are registered in Victoria but the broader community? How are we going to see those improvements from this action?
Lizzie BLANDTHORN: You have almost answered your own question, Ms Bath. Indeed it goes back to colonisation itself. But the reason we have not achieved better outcomes and why there is a gap for Aboriginal people across our country, including in our state and including in things like you have referred to – in our justice services, in our children’s services, in our housing services and so forth – speaks to the fact that there has not been self-determination. All families do better when they make decisions that affect them and their families, and that includes Aboriginal people and Aboriginal families. While there has over time been an evolution of different supports and different ways of working together, what has been clear and what I also spoke to yesterday in my own contribution to the second-reading debate – and if you look at international examples in comparable jurisdictions – is where there is treaty there is greater opportunity for there to be self-determination in how people provide for themselves, their families and their communities. Through treaty, that is what we will be able to do better and what I hope will lead to our seeing a greater closing of the gap.
Melina BATH: Minister, this bill mentions a couple of times Closing the Gap. It does not mention the metrics by which the outcomes and the improvements will be judged, as far as I know, so I will just put that point. Can the minister actually describe how these metrics will be judged? How will we know that it is improving? And by ‘we’ I mean the Victorian population.
Lizzie BLANDTHORN: Sorry, Ms Bath, could you please repeat your question?
Melina BATH: Minister, how will the Victorian population, including all the very important people who Closing the Gap is supposed to serve, know? What metrics will the treaty be judged against? How will we know that it is working?
Lizzie BLANDTHORN: Obviously in relation to Closing the Gap specifically there are particular measurements that go to a number of the areas to which you have spoken – in principle, those outcomes themselves. But I think in a number of different ways we will be able to account for the improvements. It is a very general question that you are asking, and there will be different measures for different circumstances and different types of issues that are being measured. But ultimately those Closing the Gap targets are what we seek to achieve.
Melina BATH: What performance audits or independent reviews will ensure taxpayer funds generally will see an improvement in, for example, those key metrics: health, housing, education, incarceration? How is the government going to assess this? What performance audits and independent reviews will occur against the treaty framework?
Lizzie BLANDTHORN: The Statewide Treaty is to be reviewed every five years, Ms Bath, by an independent panel. Under the bill the funding arrangements must be reviewed every four years unless the state and Gellung Warl agree to alternative timing. Like Victorian government departments and public bodies, Gellung Warl must also report annually at the end of each financial year, including a report of operations and financial statements for the financial year under part 7 of the Financial Management Act 1994. There are very clear and measurable indicators of progress in relation to First Peoples policy. The bill and treaty will work alongside the National Agreement on Closing the Gap to provide stronger accountability for the targets and indicators that all Australian jurisdictions are working towards under Closing the Gap. Nginma Ngainga Wara’s accountability functions will ensure that we have an independent mechanism to transparently measure and report on how well the government is doing against these nationally agreed targets and indicators. Adding additional indicators into this legislation would simply create unnecessary confusion and complexity. This, along with other accountability features of the bill, such as the engagement hearing and representation and advice functions, will also go towards addressing the current gap identified by the Productivity Commission’s report on Closing the Gap in the state’s ability to track and identify how it is meeting outcomes for First Peoples.
Melina BATH: In legislating this treaty bill, there is consolidated funding and there is capital funding, and it equates to, give or take, $207 million. That funding goes towards running the organisation – the statutory body and infrastructure of that statutory body. Can I confirm that none of this funding that is legislated in perpetuity and increasing after the forward estimates goes toward Closing the Gap targets?
Lizzie BLANDTHORN: Gellung Warl will be funded by a special appropriation. The bill includes a special appropriation with yearly caps to fund the operation of Gellung Warl and all its entities. The amount to be appropriated includes the costs and expenses incurred in establishing Gellung Warl of $3 million in 2025–26; operational funding for Gellung Warl of $23.805 million in 2026–27, $71 million in 2027–28, $72 million in 2028–29 and ongoing, with ongoing amounts to be indexed annually at 2.5 per cent; and fixed-term capital expenditure of $20.9 million in 2026–27, $15.4 million in 2027–28 and $0.4 million in 2028–29. The lower amounts of funding in the first few years of operation reflect the staggered approach to the establishment of Gellung Warl and transition from the current First Peoples’ Assembly. If Gellung Warl does not spend all funding within a given year on its functions and operations, it can direct any surplus funds to the self-determination fund or use them for investment purposes to support Aboriginal economic prosperity and sustainability. Gellung Warl will be able to receive additional funding outside of the special appropriation from other sources, such as philanthropic funding. Additional annual appropriation for other purposes will need to be provided in accordance with the bill through the Minister for Treaty and First Peoples and the Treasurer. Program or grant funding from other Victorian ministers and departments will need to be provided via funding arrangements outside the special appropriation. Gellung Warl may only spend funding to fulfil its statutory functions and obligations.
Melina BATH: That is good. You concur with everything that is in the bill that I have read, and I appreciate that. My point is that first of all what you have said about accountability for Closing the Gap targets is that to make measured improvements in those outcomes, Gellung Warl will have an independent review or panel every five years to review its own funding. I am trying to understand where and how by instigating the statewide treaty there will be measured outcomes and improvements for the lives of the people who are statistics on the Closing the Gap annual report. We have baseline outcomes today, but how are we going to see that these are improved by this monumental change and overarching statutory body? How are we going to see that?
Lizzie BLANDTHORN: The Statewide Treaty Bill, Ms Bath, is designed to meet the best practice standards for achieving practical outcomes and justice for First Peoples to help close the gap. It is intended to streamline and increase both the effectiveness and efficiency of public services for First Peoples that are currently delivered by government, and it will obviously work over time and ultimately result in cost savings. Gellung Warl will support Victoria to close the gap between First Peoples and other Victorians. Treaty is not simply about funding, Ms Bath. It is about providing for an Aboriginal voice in decision-making and working with government and having the functions and necessary influence to ensure that their self-determination is reflected in all of aspects that go to improving those Closing the Gap indicators and outcomes.
Melina BATH: I am not for one moment suggesting that it is all about funding, but I am suggesting that there need to be tracked and traceable outcomes. What we know from this bill is that all that funding is going to be cauterised for the organisation, the statutory body, and any requests for programs or initiatives and therefore associated funding must still go to the individual departments. Is that not correct? So if there needs to be an improvement in out-of-home care and there is a particular program that the Gellung Warl have decided is going to be useful, it has got to go to that department and seek that funding. Is that correct?
Lizzie BLANDTHORN: As we have spoken to a number of times in this place, and as you have said that you recognise, it is not simply about funding. It is about a new relationship with government that reflects self-determination and an Aboriginal voice in decision-making. You keep invoking my own portfolio, but if I speak to the Aboriginal Children in Aboriginal Care program or indeed the Community Protecting Boorais program, which I was very pleased to receive the support of this house for and which in his former life Dr Bach was a great advocate of, they are a very demonstrable way of showing that if we allow Aboriginal people to make decisions about Aboriginal children, we get better outcomes. So if you were to take back that legislation, which I was pleased to receive the support of this Parliament across both sides of the house for, and it was done in consultation with First Peoples, there would have been a formal process for that to have been done through consultation with Gellung Warl, and it would have also assisted us in getting a piece of legislation that really reflected the importance of self-determination in Aboriginal care for Aboriginal children. There are many ways in which the Parliament, ministries and Gellung Warl will work together to ensure that programs and systems better reflect the importance of self-determination.
Melina BATH: The independent Aboriginal-led review in June 2025 said that the Closing the Gap framework was sound – the overarching framework – but it lacked transformative work by governments in balancing responsibilities and resources and that funding reform was needed as part of the three key priorities. Minister, this government has been in for 11 years. It is creating a new statutory body and now all will be solved. Is that what you are saying? Is that the outcome? Because I fail to understand how, if we have still got the same players here in terms of the government, a new statutory body – it is just the same departments. How is this going to be transformative, as required by the independent review?
Lizzie BLANDTHORN: Again, Ms Bath, you are in part answering your own questions, but treaty is in and of itself transformative work. The Productivity Commission itself has said that it has the capacity to create those transformative relationships, which will actually have a real impact on outcomes. Gellung Warl we know will strengthen the voice of First Peoples, and it will allow us to do things differently, as the Productivity Commission has said that we should, to ensure that not just the last 11 years, not just the last 50 years, but since colonisation that we do do things differently – that we have a treaty with our First Peoples that allows for and formally provides for that self-determination in decision-making.
Melina BATH: What binding obligations will treaty impose on departments to fix these chronic issues with Closing the Gap?
Lizzie BLANDTHORN: This will relate to the guidelines that Gellung Warl can provide to departments Ms Bath, but the duty to develop written guidelines is distinctly Victorian. It is designed to enable tailored approaches to consultation to be worked out between departments as well as Victoria Police and the assembly. This is different to the overarching broad and open-ended duties to consult in other comparable treaty jurisdictions such as New Zealand and Canada, where courts are often involved in determining what type of consultation is required.
Melina BATH: Victoria has one of the lowest Aboriginal health assessment uptakes in Australia. What binding obligations will the treaty impose to fix this issue?
Lizzie BLANDTHORN: I refer you to my previous answer, Ms Bath.
Melina BATH: Will the treaty delegate child protection authority to Aboriginal community controlled organisations?
Lizzie BLANDTHORN: Again, I refer you to my previous answer, Ms Bath, but I also refer you to my earlier comments, which spoke exactly to the legislation that we passed in this Parliament some time ago now – certainly when Dr Bach was here and that those opposite indeed voted for – which was for Indigenous organisations, ACCOs, to be authorised to undertake both case management but also investigative functions under the child protection legislation.
Melina BATH: Will the treaty require annual and regionally based reporting outcomes?
Lizzie BLANDTHORN: Gellung Warl, as was asked about earlier, will provide an annual report.
Melina BATH: But will that reflect localised data, or will it be homogenous across the state?
Lizzie BLANDTHORN: Ms Bath, as well as Gellung Warl providing its annual report, the usual reporting as per the national agreement and also existing Victorian frameworks will continue to apply.
Melina BATH: How can both Aboriginal Victorians and Victorians as a whole hold the state government accountable under treaty? How will this work when to date your government still fails to publish regional-level progress on Closing the Gap?
Lizzie BLANDTHORN: I refer you to my earlier answer, Ms Bath.
Bev McARTHUR: Minister, in an earlier answer you stated the reference in the bill’s preamble to the United Nations Declaration on the Rights of Indigenous Peoples would have no impact on Victorian law; clause 18, however, says:
The First Peoples’ Assembly is to work collaboratively with Traditional Owner groups in Victoria to meet cultural obligations and responsibilities and realise self-determination for First Peoples in accordance with the United Nations Declaration on the Rights of Indigenous Peoples.
Clause 18 will be the law if this bill passes today, so this bill is specifically mandating that the assembly work in accordance with UNDRIP. How can you sustain the idea that satisfying the principles of the declaration will not now be an aspiration of Victorian law?
Lizzie BLANDTHORN: It does not create any new obligations on the state in relation to UNDRIP.
Bev McARTHUR: Minister, article 28, clause 1, states:
Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used …
Clause 2 states:
Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.
This bill mandates that the assembly work towards self-determination in accordance with these principles. How can you claim this will play no part in Victorian law?
Lizzie BLANDTHORN: Mrs McArthur, you are conflating ‘working in accordance with principles’ and ‘new obligations under the law’, and my previous answers stand.
Ann-Marie HERMANS: In schedule 2, clause 2 mentions the minimum number of general seats being at least 10 and that assembly members cannot exceed 80, and this is all about self-determination, with the Aboriginal voices, you said, being part of the decision-making process in the hopes that we will be having some good outcomes in closing the gap. But we find in the bill in section 53(2)(c) that you do talk about merit-based selection, so it is a two-pronged question: who is going to determine who is merit based, and why is it that you have put into your schedule 2, clause 2, that it must have a gender quota for vacancies in general member seats? Given on this side of the house we do not do quotas, and there are many capable Aboriginal women in here that are concerned and engaged, if it is based on merit then why do we need to put in a gender quota, given that gender is a social construct?
Lizzie BLANDTHORN: There are two parts to your question. In relation to the question around statutory appointments, the statutory appointments need to be merit based, and the composition of Gellung Warl reflects the will of the assembly in making sure that there is equal representation.
Ann-Marie HERMANS: Just to clarify, whilst it is self-determining, it is not going to be self-regulated, because regulations in terms of gender quota will be imposed, and merit based – you still have not told me who is determining that merit and what that is based on.
Lizzie BLANDTHORN: In relation to the statutory appointments, Mrs Hermans, that will obviously be different based on each and every appointment. In relation to the democratically elected membership of the assembly, it is the view of the assembly – the self-determined view of the assembly – that they would like to see equal representation in those democratically elected positions, and that is what will occur.
Georgie CROZIER: Australia’s international obligations as a signatory to the International Covenant on Economic, Social and Cultural Rights include a commitment to uphold the right to health in article 12 as one of the core rights protected by the ICESCR. Under article 2:
Parties to the … Covenant undertake to guarantee that the rights enunciated in the … Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
On the federal Attorney-General’s department website it goes on to state:
Australia is a party to 7 core international human rights treaties:
The right to health is contained in article 12, as I have just highlighted to you. In addition to that, the Medical Board of Australia’s code of practice 3.4 ‘Decisions about access to medical care’ includes:
Your decisions about patients’ access to medical care must be free from bias and discrimination. Good medical practice involves:
3.4.3 states:
Upholding your duty to your patient and not discriminating against your patient on grounds such as race, religion, sex, gender identity, sexual orientation, disability or other grounds, as described in antidiscrimination legislation.
3.4.4 states:
Giving priority to investigating and treating patients on the basis of clinical need and the effectiveness of the proposed investigations or treatment.
Also, the AMA has adopted the World Medical Association’s Declaration of Geneva as a contemporary companion to the 2500-year-old Hippocratic oath for doctors to declare their commitment to their profession, their patients and humanity, and in that pledge, it includes:
I WILL NOT PERMIT considerations of age, disease or disability, creed, ethnic origin, gender, nationality, political affiliation, race, sexual orientation, social standing or any other factor to intervene between my duty and my patient;
There is quite a bit in that, but it is very, very important, and I hope you were listening to what I was saying, because on the Department of Health’s website, the government’s own website, St Vincent’s has been nominated as a finalist for the Victorian public health care awards for the minimum category 3 triage for First Nations patients in the ED. It says:
First Nations patients are now seen more promptly than non-Indigenous patients …
Given that, how does the government reconcile differential treatment of Victorians based on race that this treaty will enshrine with our international obligations under those covenants and declarations and the AMA pledges that I have just read to you?
Lizzie BLANDTHORN: Just for the benefit of the house, I am struggling to understand your question as it relates to the bill.
Georgie CROZIER: This bill is going to enshrine treaty. I will explain it. In the Statewide Treaty, Minister, it talks about the path to this Statewide Treaty, and in it, it references health, and I will come to that. But this is really important because what you are saying in the treaty and the delivery of health care and what is happening is going against those very principles. So I am asking you: how does the government reconcile these actions, given it goes against all of those international covenants that Australia has signed up to, that are well known within medical circles and go with the medical code of ethics and practice?
Lizzie BLANDTHORN: I am still struggling to understand the connection between your question and the bill. I could equally list off a range of other international covenants that talk about the inalienable rights of each and every person and what is necessary to achieve human dignity and equality of people, and that some people need more assistance than others in order to achieve true equality. So we could all stand here and quote a number of international covenants and decisions, from the rights of the child to all of the ones you have just quoted. But I am still struggling to see the direct link between your question and the bill.
Georgie CROZIER: I am happy to explain it again. The bill we are debating today enables the statewide treaty. It is negotiated ‘pending assent’ – that is what this says. It is a 31-page document that will be enshrined. The treaty – the bill that we are actually talking about – is this document. Is that right?
Lizzie BLANDTHORN: Yes, we are talking about the treaty bill, Ms Crozier.
Georgie CROZIER: Correct – the bill will enshrine and enact this treaty, which this document is based on. In this document, it talks about health. I am going to the very principles around the delivery of health and what is happening in Victoria when there are actions being undertaken that contravene international law that Australia has signed up to. These are actions that contravene medical ethics and codes of practice that are well documented and supported and are pledged to by doctors through the Australian Medical Association declaration; the Hippocratic oath, which is 2500 years old; and the World Medical Association’s Declaration of Geneva, which has modernised that Hippocratic oath. I have read them all in. I will list them again, if you would like. They are very specific. The Medical Board of Australia code of practice says:
Upholding your duty to your patient and not discriminating against your patient on grounds such as race, religion, sex, gender identity, sexual orientation, disability or other grounds as described in antidiscrimination legislation.
And in section 3.4.4:
Giving priority to investigating and treating patients on the basis of clinical need and the effectiveness of the proposed investigations or treatment.
What is happening is that Indigenous Victorians are getting priority. It is there on the government’s website. St Vincent’s Hospital is going to be nominated for an award. It says that First Nations patients are now seen more promptly than non-Indigenous patients. That goes against the international covenant, the Medical Board of Australia code of practice and the AMA declaration, which I also read out, and I am happy to do it again. But these are the same issues. I am asking you: how does the government reconcile the treatment of Victorians based on what this treaty says around health care? Under ‘The path to this statewide treaty’ it says:
Treaty must live beyond the page. It must be felt in classrooms and courtrooms, in hospitals and homes …
So my question is: how does the government reconcile the different treatment – based on treaty – with our international obligations and those code of conducts, such as what is laid out in the medical board code of practice?
A member interjected.
Lizzie BLANDTHORN: I appreciate the clarification. I will take up the interjection of Ms Watt here, who said, ‘Give them an award.’ As a granddaughter and a daughter of nurses at St Vincent’s – and indeed my mother is currently one of the executive members of the old nurses’ organisation at St Vincent’s, and they currently invest most of their fundraising efforts in raising funds to support the training of Indigenous nurses. But as you have spoken to, they are getting a –
Georgie Crozier: That is not the question.
Lizzie BLANDTHORN: Deputy President, I listened at length to Ms Crozier’s explanation. I would like to be heard to respond to it.
As you have spoken to, this is work that has been ongoing over a period of time – my advice is, since April last year – so this is work that has been happening for nearly two years, and they are receiving an award for it. We are debating treaty today. This is not an outcome from treaty. This is an outcome where organisations in our community are recognising the need for greater self-determination and greater support and services to help Aboriginal people close the gap. To link, as you are, the program that is currently, I would say commendably, operating at St Vincent’s Hospital – and has been for nearly two years – to the bill we are debating today is disingenuous, divisive and designed to cause harm in the community. What we are talking about today is treaty, and the only link I can possibly find between the bill before us today and this policy is that the bill will require consultation in relation to the appointments of those people who will be on health boards, as I spoke to yesterday in my speech.
Georgie CROZIER: Minister, in today’s Department of Health annual report –
Lizzie BLANDTHORN: Today’s. Yes, before treaty.
Georgie CROZIER: Tabled today:
All Aboriginal people in Victoria have the right to a health system that is free from racism and discrimination …
Lizzie BLANDTHORN: Yes. You disagree?
Georgie CROZIER: No. It goes to my point in the previous question that I asked you, and then you went on and said that we were being divisive. No, you do not understand what you are saying, Minister, because you did not listen properly. This annual report today goes on and says:
… statements of priorities are aligned to government policy and priorities in this area, and they reflect the importance of delivering a health system grounded in respect and safety …
Their strategies included:
mandatory cultural safety training for health services
which you sort of alluded to –
streamlining guidelines and reporting for Aboriginal cultural safety fixed grants
There is a whole range of other things. But if this department report says today:
All Aboriginal people … have the right to a health system that is free from racism and discrimination …
and I am saying to you that there is discrimination in treatment being undertaken in Victoria’s hospitals today based on the colour of people’s skin and their race, is that not discrimination and racism? Go back to my original question: how does the government reconcile the differential treatment of Victorians based on what the annual report today says about one group of people and how it is actually operating in our health system today with a whole range of other Victorians? Is it not the same thing?
Lizzie BLANDTHORN: I would simply answer that question with the key point being that the bill is compatible with the right to equality in the Charter of Human Rights and Responsibilities Act, as outlined in the statement of compatibility, and the bill works to ensure substantive equality between First Peoples and other Victorians such that First Peoples have equal enjoyment of human rights and fundamental freedoms. The bill does not take anything away from anyone, Ms Crozier.
Georgie CROZIER: Minister, I go again to clause 1.2 of the Statewide Treaty document. Have you got that in front of you?
Lizzie BLANDTHORN: We have all the necessary documents.
Georgie CROZIER: Okay. It states:
The path to this Statewide Treaty
…
Treaty must live beyond the page. It must be felt in classrooms and courtrooms, in hospitals …
Minister, how will clause 1.2 operate in hospitals?
Lizzie BLANDTHORN: If we take the St Vincent’s example that you referred to previously, it is not specifically relevant to treaty as such other than to say that the research all showed that First Nations patients were more likely to remain engaged with care if seen within an appropriate amount of time. A St Vincent’s spokesperson stated:
First Nations patients were, on average, waiting longer to be seen compared to non-Indigenous patients …
What we are seeking to do here is ensure that there is the necessary relationship between Gellung Warl, the government and associated institutions and whatnot to ensure that Aboriginal people have access to the services that they need in an equal way. I know it is a foreign concept to those on the other side of the house, but there are a number of other international conventions that we can invoke that speak to the right to equality being influenced by some people needing more support and assistance at times, based on previous disadvantage or circumstance, that provides them with the assistance that they need to equally access services.
Georgie CROZIER: Does the government agree with equality of access to health care?
Lizzie BLANDTHORN: Yes.
The DEPUTY PRESIDENT: The minister without assistance, please.
Lizzie BLANDTHORN: As I just said in my previous answer, and I understand it is a concept foreign to those on the other side of the house, Ms Crozier has invoked a number of international conventions and treaties, and I urge her not to quote from them selectively. You will find across all of them a commitment that recognises that some people need more assistance at certain times, from children to those with disabilities to those who are First Peoples of their particular nations. But if the allegation is that Indigenous peoples, that First Peoples, would somehow be unfairly benefiting from treaty in the context of how people can equally access services in the community, that is not the case. It is disingenuous to suggest it.
The Statewide Treaty will not unfairly benefit Victorian First Peoples, and we already know from Closing the Gap and other initiatives that First Peoples experience significant inequality in Victoria. The Yoorrook Justice Commission heard how government policies and practices have created this inequality, which continues in Victoria today, and hence I commend the work of organisations such as St Vincent’s Hospital. But we have heard how government policies and practices have created this inequality, which continues today, and the Statewide Treaty is designed to help rectify this, improving the opportunities available to First People and ensuring equality across Victoria. If we can achieve equality across Victoria, Ms Crozier, that can only benefit all Victorians equally.
The DEPUTY PRESIDENT: Just before we go on, can people in the upper gallery please resume their seats.
Georgie CROZIER: Minister, again I say that nobody wants Indigenous Victorians to not be able to access health care. We all want the gap closed. We have all acknowledged that and will continue to do so. I know there are snide comments coming from other members of the house, but this is an important aspect because what is happening in Victoria is breaching international declarations that Australia has signed on to that have been part of our medical system and that code of practice, which is incredibly important for medical practitioners to abide by.
Sonja Terpstra interjected.
Georgie CROZIER: Well, it does, because I am going to it.
The DEPUTY PRESIDENT: Ms Terpstra, Ms Crozier has the call, please.
Georgie CROZIER: I know that there are a lot of people in here that want this bill to pass expeditiously. We have a right on this side of the house to ask questions about how this bill will impact on Victorians and what will happen.
Sheena Watt interjected.
Georgie CROZIER: Ms Watt, if you want to take the minister’s place, why don’t you sit next to her and start assisting her rather than commenting from over –
The DEPUTY PRESIDENT: Ms Crozier, through the Chair, please.
Sonja Terpstra: On a point of order, Deputy President, I would ask that Ms Crozier direct her comments through the Chair.
The DEPUTY PRESIDENT: I had already asked her that. Ms Crozier, through the Chair, please.
Georgie CROZIER: Chair, I would also ask that members also direct any comments through you. Or, if they want to assist the minister, maybe they can sit up at the table.
The Statewide Treaty, Minister, at clause 3 talks about Aboriginal law and Aboriginal lore. So where there is a difference in the longstanding clinical practice, which I have explained in my previous questions to you, and if there are any impacts from Aboriginal lore, which one will prevail? Will it be Aboriginal lore, or will it be those long-abiding practices?
Lizzie BLANDTHORN: Through the establishment of the guidelines that Gellung Warl will provide, what we do hope to achieve is culturally safe, culturally appropriate care – I am keeping my remarks here in relation to the health system. But I would think that the guidelines that are being produced would have at their core culturally appropriate and safe care and treatment for Aboriginal people in our health system. I cannot see how they would be inconsistent, but what is inconsistent is the way in which you are selectively quoting from some United Nations conventions and international instruments and not others. They are meant to be taken in their entirety. In order to achieve equality across all of our systems, those which Australia is a signatory to should be taken in a cohesive way.
Georgie CROZIER: Well, I am glad we have got this on the record, Minister. I am glad for what you have just said, because I actually think that this is going to have huge ramifications for Victoria, for Victoria’s health system and for Victorian patients, Indigenous and non-Indigenous. So I am very pleased with what you have got on the record, because I think that you have not understood what I have been asking, and I think that is highly unfortunate. You have not taken the time to understand the severity of what is actually going to occur.
If I can just go to the Aboriginal Health and Wellbeing Partnership Agreement 2023–2033, which is a government document that talks about, for Aboriginal people, the concept of health being that it encompasses the physical, social, emotional and cultural wellbeing of individual families, wider kinship groups and the entire communities. Is that the same for all Victorians?
Lizzie BLANDTHORN: Again, I would ask Ms Crozier to keep her questions to the bill, but I am more than happy to answer it in saying yes.
Georgie CROZIER: I agree with you. The reason I am asking these questions is because again I go to the Statewide Treaty. In schedule C of the Statewide Treaty, ‘Minimum content for guidelines’, it says:
(a) Section 88(1) of the Statewide Treaty Act requires that each Secretary must develop, in consultation with the First Peoples’ Assembly of Victoria, written guidelines for:
i) any matters specified in the Statewide Treaty; and
ii) the manner of consultation with the First Peoples’ Assembly of Victoria during the development of any legislative proposal, statutory rule (not including a court rule) or policy that is specifically directed to First Peoples.
Minister, how will these guidelines interplay with the various entities in health, such as VicHealth or any other health service in Victoria?
Lizzie BLANDTHORN: As I outlined earlier, Ms Crozier, the guidelines are non-binding, but I believe in everyone’s shared commitment to true equality, recognising that the very rights that you spoke to before, which belong to everyone and which everyone feels, since colonisation have in various ways and to various extents been denied to Aboriginal people. What we provide here is a framework and an opportunity to allow for justice to be restored and to ensure that with those rights that you spoke to before, which I agreed with you belong to everyone, we do the work necessary to ensure that Aboriginal people are afforded them in the same way that everyone else should be.
Georgie CROZIER: Minister, in that same document:
ACCHOs are Aboriginal led, community-controlled health services that provide a suite of primary care, allied health, mental health, alcohol and other drug, housing, disability and aged care services, and many other wrap-around supports for Aboriginal people.
That document also says:
… significant investment is required to bring about change, both in perception and reality.
But the government has ignored the needs of Aboriginal community controlled health organisations (ACCHOs), where community health buildings are literally falling down. In fact about 82 per cent of the sector’s 200 buildings will need replacement, so why has the government failed to address those basic needs in this important health area to provide care, support and health advice to Indigenous Victorians? These facilities are not even fit for purpose. In fact they have been said to be dangerous and not safe, so how can you espouse that you are doing one thing when you have ignored the very facilities and resources that are required to deliver appropriate care to Indigenous Victorians?
Lizzie BLANDTHORN: Again I would seek the guidance of the Chair – it is going to be a very long night if the questions are not contained to the clauses of the bill. Nonetheless, as I have explained already in this chamber – and I appreciate that you did not come in this morning, Ms Crozier – Gellung Warl will strengthen self-determination of ACCHOs through the infrastructure fund, which is being transferred from government. But it will also strengthen the opportunity for Gellung Warl to work with the various other government agencies responsible for the delivery of services and through the provision of guidelines which will be consulted on to ensure that it is an all-encompassing response that has self-determination at its heart.
Georgie CROZIER: For years you have ignored what has been required and for years we have had this crumbling infrastructure that is now unsafe, and you are trying to say that it will all be okay. It is just laughable given that you espouse one thing yet the facts are there with non-investment and actually just a disregard for it. How can programs and care be properly delivered when you have ignored those community health needs, where we want to keep people out of the acute system, Indigenous and non-Indigenous? I mean, it is just extraordinary. Anyway, I am moving on from that.
Lizzie BLANDTHORN: Was that a question? Do I get to respond to that?
Georgie CROZIER: No, it is not, it is just a statement. It was a response to your question.
The DEPUTY PRESIDENT: Do you want to respond? The minister has a right to respond.
Lizzie BLANDTHORN: As we all know, this is an opportunity for questions and answers rather than an opportunity for everyone to just give speeches from their chair. But as I said, the transfer of the Aboriginal community infrastructure program to Gellung Warl is consistent with the objectives that we are all committed to, I would hope, it advances the Victorian government’s commitment of enabling self-determination as outlined in the Victorian Aboriginal Affairs Framework and it clearly demonstrates the practical outcomes of Statewide Treaty. To somehow suggest that that is a negative is indeed disingenuous. It will ensure that the infrastructure fund will be established and operated by Gellung Warl, and that will allow for, as I said earlier, increased self-determination within those funds.
The DEPUTY PRESIDENT: I just need to correct the minister’s statement at the beginning of that. It is possible for people to make just a statement in committee; they do not necessarily have to ask a question.
Georgie CROZIER: Deputy President, thank you for that clarification; that is right. In this document that I referred to, which goes to the heart of this legislation and the treaty, it talks about a self-determined health system:
Aboriginal people are authorised and empowered to own, direct and make strategic decisions. A self-determined health system is one where legislative, governance, reporting and other structures and mechanisms have embedded Aboriginal voice, and which reflects Aboriginal values and culture.
…
Aboriginal voice determines the healthcare received by Aboriginal people in Victoria.
Minister, could you just enlighten or just explain that a little bit more in terms of how that is going to be delivered through the different layers of our health system: primary care, community care, acute care, emergency care and aged care?
Lizzie BLANDTHORN: The document to which you specifically refer, Ms Crozier, is not directly relevant to the bill. But what I would say is that in the development of guidelines by Gellung Warl in consultation with departments, with secretaries, with government organisation – those guidelines that are then developed being non-binding, there will be an opportunity to work together but for Aboriginal voice to be a fundamental part of the delivery of health care.
Georgie CROZIER: Well, that is hardly an explanation. You did not even address the very parts of our health system that all Victorians, including Indigenous Victorians, need to understand. You did not even address it, Minister. Minister, can you guarantee that the introduction of this massive layer of complexity to prioritise Indigenous patients, such as we have seen happen in St Vincent’s, will not compromise or leave any other Victorians worse off?
Lizzie BLANDTHORN: I am sure St Vincent’s, along with every other hospital, will continue to ensure that people are triaged and assessed according to risk and that there is equality in the delivery of health care.
Georgie CROZIER: That is the point, Minister. Triage is about risk and assessment – assessing a patient’s safety and getting an emergency response. It takes in their medical history and their physical condition as they walk through that emergency door. You cannot assess somebody on the colour of their skin. You have got to see that person in their entirety and their medical condition in its entirety. That is the point; that is the reason for triage. You never judge anyone on the colour of their skin – never.
Lizzie Blandthorn interjected.
Georgie CROZIER: Well, that is the medical code; that is exactly what it says. You do not put those biases in. You have got to assess somebody, and St Vincent’s is prioritising being an Indigenous Victorian rather than any other Victorian or any other Victorian from another marginalised group. So is this happening in other hospitals?
Lizzie BLANDTHORN: As I spoke to earlier, Ms Crozier –
Sarah Mansfield: On a point of order, Deputy President, on relevance to the bill, I am not quite sure how that last question was relevant to the bill that is before us.
Georgie CROZIER: It is relevant because of the minister’s previous answer, Dr Mansfield, around risk. Obviously, being an Indigenous Victorian is only part of that risk. It is not the entire picture.
The DEPUTY PRESIDENT: We do have a very broad discussion on clause 1. I will allow the question this time, but we do need to stick more to the bill.
Georgie CROZIER: My apologies. That was the point of me asking it – because of the minister’s response. As I said, that is only part of the risk profile when a patient is being triaged, and that is the failure of the minister to understand that. That is why I asked the question. Can the government guarantee that other Victorians will not be worse off with this policy in place?
Lizzie BLANDTHORN: As I said to you before – and if we take in particular the St Vincent’s example – a St Vincent’s spokesperson said research from the hospital’s emergency department found that First Nations patients were on average waiting longer to be seen compared to non-Indigenous patients. The research also showed First Nations patients were more likely to remain engaged with care if seen within their first hour of ED presentation. They said:
ED wait times for First Nations and non-Indigenous Australians are now comparable thanks to the introduction of this policy.
So the introduction of this policy has actually resulted in more equitable outcomes for all people – not just First Peoples but all people – at St Vincent’s Hospital. And I would hope that similar policies are in place across our health system, across various other ways, so we can ensure that sometimes more – I know it is a concept extremely foreign to those on the other side of the house, but as I indicated, you need to stop selectively quoting from certain international covenants and look at all of them, in particular the right to equality, which recognises that some people need more support and assistance to achieve equality than others.
The DEPUTY PRESIDENT: I just caution both Ms Crozier and the minister that it is going to be a long day and we need to take the level down just a notch, please.
Georgie CROZIER: I would just like to get confirmation from the minister. She said that it will be applied across the health system – the policy that is in St Vincent’s; that is what she said.
Lizzie BLANDTHORN: I am sorry, Ms Crozier, I did not hear your question.
Georgie CROZIER: I just want clarification, because you said that it would be applied across health systems – the policy that is being applied at St Vincent’s. You said it would be applied across the health system.
Lizzie BLANDTHORN: What I said, Ms Crozier – and I would appreciate if you did not put words in my mouth – is that I would hope that across our systems we have recognition – as provided for in various international conventions, including the United Nations declaration of human rights – that some people need greater assistance and support than others to achieve equitable outcomes. Indeed that is what is happening at St Vincent’s. And as someone who is committed to the fundamental provision of human rights across the board in order to get equitable outcomes, we need to see policies which ensure and recognise that some people need more assistance than others to achieve that.
Georgie CROZIER: I will check Hansard. That came following what you said, I think, but nevertheless I will take it as though you are saying that there is the possibility – and I do not want to put words into your mouth, Minister; I am just trying to get some clarity around this because it is important. It has concerned a number of people, given their obligations and understanding of their roles within the health system around those codes that I spoke of. And yes, there are many Victorians who are disadvantaged and who fall into a group that could equally have poor health outcomes similar to Indigenous Victorians. That is my point. How does a health system reconcile that – when we are literally taking one group out and prioritising them over others, when there are many other members of the Victorian community that fall into various, unfortunately, disadvantaged types of scenarios?
Lizzie BLANDTHORN: Sorry, Ms Crozier, could you repeat the question, please.
Georgie CROZIER: How will the government be able to manage other disadvantaged groups given that the Indigenous population is being selected out and prioritised over others?
Lizzie BLANDTHORN: As I said earlier, what we are doing here is a treaty bill which is designed to ensure that Gellung Warl and the associated entities have the opportunity to ensure that there is self-determination in the delivery of systems, services and supports. What we are not doing is setting up a system which your allegation, which I think is extremely divisive and disingenuous, suggests that somehow other people will lose from. If we provide for self-determination where Aboriginal families and Aboriginal children get better outcomes, then that is better for all families, that is better for all children and that is better for all of our community. That is not to say that other groups do not also have reasons why their disadvantage might also mean that they need extra support and services. We are not taking away from anyone. No-one loses anything here, Ms Crozier. What we are doing is ensuring that there is self-determination and that in so doing we have systems, services and institutions that are better equipped and better able to provide those equitable outcomes.
Georgie CROZIER: This is my last question, because I think there remains an enormous amount of concern from many people who work within the health sector around what has happened. As Professor John Wilson said this morning, in an attempt to eliminate inequalities, it can actually lead to unintended consequences, and that is what I think this policy will find. So I will leave it there, Minister, but I might come back later. I have got some more questions to follow up on.
Lizzie BLANDTHORN: I would simply reiterate my point that this bill does not take anything away from anybody, and to suggest that it does is extremely disingenuous. What we are seeking to do here is establish treaty, which is designed to ensure a new way, a new relationship with government that allows for self-determination and an Aboriginal voice in a system and across institutions that, since colonisation, has not had equitable distribution of those services.
Joe McCRACKEN: My question is on clause 7. Would the First Peoples’ Assembly be subject to parliamentary privilege when addressing the house, or any of the houses, either under clause 64, when they do their annual speech, or under clause 70, by invitation, or does this clause reserve that privilege only for members of Parliament?
Lizzie BLANDTHORN: There is no change to the existing parliamentary privilege rules, but we will seek some advice and provide you a more fulsome answer.
Joe McCRACKEN: I would appreciate that, Minister. Thank you for taking that up. I will move on to clause 8, then. This is the part where it says ‘Powers are not coercive’. 8(1) declares that powers of Gellung Warl and its components are not coercive. Would this prevent the issuing of binding directions of enforcement against departments or agencies?
Lizzie BLANDTHORN: No, nothing is binding.
Joe McCRACKEN: Sorry, I missed that.
Lizzie BLANDTHORN: Nothing is binding. Sorry – I took it as a double negative. The answer to your question is: yes, nothing is binding.
Joe McCRACKEN: What practical mechanisms ensure compliance with recommendations or requests made by Gellung Warl if they are non-binding?
Lizzie BLANDTHORN: The recommendations that are non-binding are still intended to be informative, and as you outlined in your earlier question, they are non-coercive and they are non-binding. But in the spirit of the legislation and what we are seeking to achieve and through the consultation that it would inevitably be part of development of the guidelines in the first place, one would envisage that they would be something that people can work with. But as I said at the outset, they are non-binding, they are non-coercive.
Joe McCRACKEN: I will just do this last one before I let someone else have a go, because I have got another whole section of ones to go on. If a minister or agency refuses to comply with a non-coercive request, nevertheless they could be characterised as being in breach of the good faith obligations, which are under clause 6. Is that true?
Lizzie BLANDTHORN: The good faith obligation obviously still exists.
Joe McCRACKEN: That is exactly my point, though. If a minister or an agency refuses to comply with a non-coercive request, they would be characterised as being in breach of acting in good faith.
Lizzie BLANDTHORN: More precisely, Mr McCracken – I cannot recall now if it was you or someone else that I responded to in these terms earlier – the good faith obligation is an obligation on the state government and the three arms of Gellung Warl, on the other hand, to conduct themselves, obviously, in good faith when engaging with each other in relation to the exercise of powers and functions by the arm of Gellung Warl. The obligation does not apply, as I said previously, to the Parliament or the judiciary. We all, I think, understand that good faith generally means that the state government and Gellung Warl must act honestly, fairly and reasonably when engaging with each other, and the obligation aims to support that unique relationship between the state government and Gellung Warl that is created under the Statewide Treaty by setting a standard of behaviour for the parties to support positive relations and minimise adversarial approaches to engagement. I do not think that is beyond the remit of what anyone here would be seeking to achieve – enacting those good faith obligations.
Joe McCRACKEN: I completely understand the intent behind what you are saying, Minister, but the practical reality is that this government or a future government or indeed any minister of those governments may not, for whatever reason, comply with a non-coercive request and could therefore be seen to be in breach of good faith. That is at least possible.
Lizzie BLANDTHORN: Again, as we talked about previously, none of Gellung Warl’s powers are coercive and it cannot impose penalties for noncompliance. The state is, however, subject to several requirements, including the overarching obligation to act in good faith – not that I think we are suggesting anyone would be seeking to act in bad faith – when engaging with the assembly, Nginma Ngainga Wara or Nyerna Yoorrook Telkuna, which is a legally binding obligation. If the state did not act in good faith, the court may be able to compel the state to do so. That is no different to good faith obligations across other pieces of legislation and in other settings across whole of government.
Joe McCRACKEN: I am actually going to carry on and move on to clause 9. Clause 9(2)(a) provides that Gellung Warl is to deliver improved and enduring outcomes for First Peoples. Are there any statutory performance indicators that help determine what this means?
Lizzie BLANDTHORN: Again, this is a question we have already had today. We could talk about those indicators that go to the operational issues with Gellung Warl, and they are subject to all of the usual oversight mechanisms. If we are talking about outcomes measures in relation to outcomes for Aboriginal people, we are talking in particular about the indicators that show that we are closing the gap.
Bev McARTHUR: Minister, the part 21 Freedom of Information Act 1982 amendments create a new section 32B, which provides that a document is an exempt document if it is a document of Gellung Warl that, if disclosed, would disclose culturally sensitive or culturally secret information. Culturally sensitive or culturally secret information is defined as:
(a) information that the individual or group providing it to Gellung Warl advises is culturally sensitive or culturally secret information; or
(b) if that advice was not given, information that is determined to be culturally sensitive or culturally secret information in accordance with the internal rules …
Minister, is it not the case that there are no checks and balances to determine what is culturally sensitive or culturally secret information?
Lizzie BLANDTHORN: Gellung Warl is subject to the freedom of information regime and act just like other public bodies. The bill creates a limited exemption for culturally sensitive and secret information, which is a much more limited exemption than that afforded to cabinet information, for example. The review processes in the FOI act apply to decisions made to withhold culturally sensitive and secret information. Decisions to withhold information under this exemption can be appealed and reviewed by the Victorian information commissioner and the Victorian Civil and Administrative Tribunal. The bill also requires additional independent review to ensure accountability and that information needs to be correctly classified as culturally sensitive or secret information. Despite this exemption, integrity and law enforcement bodies are always able to access culturally sensitive or secret information when they need to.
Bev McARTHUR: Are Victorians able to access what is culturally sensitive and culturally secret information for the purposes that they may well be involved in a situation with Gellung Warl?
Lizzie BLANDTHORN: Mrs McArthur, culturally sensitive or culturally secret information is information provided to Gellung Warl that a First Person or traditional owner group identifies as sensitive or secret for cultural reasons. It cannot be published or externally shared, except where required by law, and must be managed and protected in accordance with rules to be made by the assembly of Gellung Warl. Culturally sensitive or secret information is information that a First Person or traditional owner group says is sensitive or secret for cultural reasons; it could include, for example, information about sacred sites, secret men’s or women’s business, sensitive family matters relating to the composition of a traditional owner group, culture, ceremonial practices that are First People only or many other types of information. The bill prevents this information being released publicly except where required by an integrity body or for law enforcement and requires the assembly of Gellung Warl to make rules about how this information is protected within Gellung Warl. This includes that the person or traditional owner group about whom the information relates or who is the source of the information should have control over how that information is treated in line with principles of Indigenous data sovereignty.
Bev McARTHUR: Minister, why is Gellung Warl established as a body corporate with perpetual succession? Is this not, in substance, a permanent parallel government?
Bev McARTHUR: What mechanism exists for dissolution if the body fails to deliver outcomes?
Lizzie BLANDTHORN: There are different procedures for dissolution depending on who is dissolving the assembly; in each case, however, dissolution only takes effect on publication of the relevant notice of dissolution in the Government Gazette. If the First Peoples’ Assembly passes a resolution to dissolve itself, the chairperson will notify the Minister for Treaty and First Peoples of the dissolution and reasons for it, and a notice will be published on its website. In the case of dissolution by petition the petition must be provided to a member of the First Peoples’ Assembly, who must then notify the Minister for Treaty and First Peoples. In both cases the minister will publish a notice in the Government Gazette to give effect to the dissolution. If the Treaty Authority dissolves the First Peoples’ Assembly it will notify the First Peoples’ Assembly and then also publish a notice in the Government Gazette.
Bev McARTHUR: What about if the government needs to dissolve the First Peoples’ Assembly?
Lizzie BLANDTHORN: The assembly can be dissolved by itself, as I said, in accordance with any of the rules; by petition; or by the treaty authority, where it considers that serious or systemic corruption or maladministration has occurred after receiving a report from the IBAC or the Victorian Ombudsman. Part 16 of the Statewide Treaty Bill 2025 sets out who can dissolve the First Peoples’ Assembly and the grounds on which they can do that. As I said, the First Peoples’ Assembly can dissolve itself by passing a resolution to do so. First Peoples constituents of Gellung Warl can dissolve the First Peoples’ Assembly by submitting a petition, which I spoke to, and the Treaty Authority can dissolve the First Peoples’ Assembly if, based on a report from the Independent Broad-based Anti-corruption Commission or Victorian Ombudsman, it forms a view that serious or systemic corruption and maladministration has occurred.
Bev McARTHUR: So this Parliament could not dissolve the Gellung Warl?
Lizzie BLANDTHORN: Yes, it could, Mrs McArthur.
Bev McARTHUR: Under what circumstances?
Lizzie BLANDTHORN: That would be at the will of the Parliament, Mrs McArthur.
Bev McARTHUR: The phrase in clause 18 ‘matters that affect First Peoples’ is undefined. Can the minister confirm whether this could extend to planning, policing or taxation policy?
Lizzie BLANDTHORN: As determined by the state and the assembly, Mrs McArthur.
Bev McARTHUR: So how will it be determined by the state?
Lizzie BLANDTHORN: By agreement between the parties, Mrs McArthur, and of course that can evolve over time.
Bev McARTHUR: By agreement between the parties – which parties?
Lizzie BLANDTHORN: Gellung Warl and the state, Mrs McArthur.
Bev McARTHUR: What about if Gellung Warl did not agree with the state about dissolution? How could the state dissolve Gellung Warl, or can’t they?
Lizzie BLANDTHORN: Are you referring simply to dissolution matters? It would be by agreement between the parties, or – as in those other circumstances that I have previously referred to – I would refer you to my earlier answers.
Bev McARTHUR: Would it require an act of Parliament, or would it be a simple majority here or would it be a two-thirds majority? This Parliament having instituted this body, how would we dissolve this body if not by agreement?
Lizzie BLANDTHORN: Mrs McArthur, I would refer you back to my earlier answers that speak to how Gellung Warl could be dissolved if that was what was deemed to be the necessary outcome.
Bev McARTHUR: In clause 13, why is a publicly funded entity explicitly exempt from ministerial oversight? That is in clause 13.
Lizzie BLANDTHORN: The minister retains the responsibility for the act, Mrs McArthur, and so it is not.
Bev McARTHUR: If you say the minister has responsibility and oversight over it but it is exempt in this clause, how do you conflate the two?
Lizzie BLANDTHORN: The minister retains the responsibility for the act. The minister cannot, though, intervene with day-to-day operations, which is no different to other statutory entities, Mrs McArthur. If we take the Commission for Children and Young People, which I received questions about earlier today, I retain the ministerial oversight for the act, but it is an independent statutory authority that makes its own decisions.
Melina BATH: Just on that, Minister, I know that the Treaty Authority, in response to verified findings or allegations of corruption or maladministration by the Ombudsman or an IBAC investigation – they can identify these to the Treaty Authority, and then the Treaty Authority has to make that determination. The information that is provided by IBAC or the Ombudsman – what level of visibility is that? Is that provided just to the Treaty Authority? Is it provided to the minister? Is it provided to the Parliament? Is it a public document? Could you explain that?
Lizzie BLANDTHORN: The usual processes in relation to IBAC apply, Ms Bath.
Melina BATH: I have not got them in the back of my head, so could you just define what they are in round terms in answer to my question. At what level is it? Is it internal only? Is it to the minister? Is it to the Parliament? Is it to the public?
Lizzie BLANDTHORN: I also do not have the relevant legislation here, Ms Bath, but it is publicly available as per the IBAC legislation.
Melina BATH: I would like to move to some investigation around being eligible for election to the First Peoples’ Assembly. I am interested to understand what the government and what the Minister for Treaty and First Peoples did when assessing the criteria for election, because the criteria for election to become a First Peoples’ Assembly member is different to that for other bodies.
Lizzie BLANDTHORN: Before I answer that question, I have just received some advice in relation to Mr McCracken’s question on parliamentary privilege. For the record, parliamentary privilege applies to anyone, including individuals, who speaks in Parliament, and that would be the case here. I am sorry, Ms Bath, could you repeat your question?
Melina BATH: The Minister for Treaty and First Peoples made an assessment in this bill to change the threshold to become eligible for election. It is different, for example, to becoming an MP, and the criteria is different, for example, to becoming a councillor in local government. So I want to understand how that decision was made.
Lizzie BLANDTHORN: To be eligible to be an elected member of the assembly of Gellung Warl you must be on the electoral roll, a traditional owner in Victoria and a resident of Victoria or within 60 kilometres of the border of Victoria. Whether or not you are a traditional owner is guided by the definitions in the bill. It includes all traditional owner groups with formal recognition under other legislation, as well as those who are otherwise stipulated to be traditional owner groups in line with the assembly of Gellung Warl’s internal rules. It is based on the current election rules of the assembly, and this was created through the Victorian Treaty Advancement Commission.
Melina BATH: I appreciate that. That was not my question. I will give you an example. To become a local government councillor, under the Local Government Act 1989 individuals can be disqualified based on the severity of past offences, specifically convictions punishable by two or more years imprisonment. State members of Parliament are disqualified from becoming a member of Parliament if they are convicted or under sentence for an offence punishable by up to one or more years. But there is a different qualification for members to become a member of the First Peoples’ Assembly. Could I understand where that has come from?
Lizzie BLANDTHORN: Ms Bath, as we have said, there are limitations on who can be elected to the assembly. The point that you are seeking clarification on is that a person who has previously been convicted of an indictable offence and is not currently held in prison or subject to a parole order with a condition restricting travel in Victoria can be elected to the First Peoples’ Assembly. This requirement is comparable to that for other elected positions. It is typical for there to be some limits on people who have been convicted of certain offences from seeking election to public office, which vary depending on the position. For example, for election as a local councillor, as you have referred to, a person must not have been convicted of an offence when they were 18 or over that is punishable by at least two years imprisonment within the preceding eight years. For a member of Parliament, the person must not have been convicted or found guilty of an indictable offence when they were 18 or over that is punishable by imprisonment for life or for a term of five years or more.
The qualification requirement for the assembly of Gellung Warl has been carefully designed, having regard to the over-representation of First Peoples in the criminal justice system and the history of exclusion of First Peoples from state political representation. First Peoples are, for the record, imprisoned at around 15 times the rate of all people in Victoria. In the Yoorrook Justice Commission report, the Yoorrook Justice Commission found that a significant driver of overpolicing and over-representation is systemic racism and discrimination. This is also consistent with the findings from the Royal Commission into Aboriginal Deaths in Custody. It is imperative that treaty does not perpetuate the impacts of systemic racism in the justice system by preventing persons that may have been caught by that system in the past from participating in treaty once they have been released into the community again, including, if that person chooses, by seeking election to represent their communities as a member of the assembly. This is even more important having regard to the history of unequal treatment and exclusion of First Peoples from political representation and political life of the state. This has been extensively documented by the Yoorrook Justice Commission, including to acknowledge the role of prior legislators in contributing to this through law making.
It is imperative that the Parliament of today does not repeat the mistakes of the past and does not unduly limit the ability of First Peoples to politically represent themselves, particularly given the recognised systemic injustice in the criminal justice system experienced by First Peoples. The eligibility requirement works to ensure First Peoples can enjoy the right to participate in political life and strikes an appropriate balance between maintaining access to that right and ensuring standards of candidates are in line with community expectation.
Melina BATH: It is good to have that on the record. My final question in this is just for clarity. I am not saying that anyone is or will – I am not making any allegations. I am just seeking to understand the clauses in the bill. The clauses in the bill that relate to eligibility mean that individuals who have been convicted of serious offences – for example, fraud, deception, property offences or potentially violent crimes, as the government has delivered this bill to this house – are eligible if they do not fall into the other categories of not being currently imprisoned or mentally impaired or subject to parole conditions that restrict travel. They are enabled to become members of the First Peoples’ Assembly.
Lizzie BLANDTHORN: I refer you to my earlier answers.
Melina BATH: Could you clarify for me in terms of the verification of Aboriginality, can the government explain the three-part test? Aboriginality is descent, self-identification and community recognition. Is that correct? Or will Gellung Warl – the First Peoples’ Assembly – define its own criteria? Could we tease that out a little bit so that there is clarity?
Lizzie BLANDTHORN: It does not in any way change the tests that have been set by law previously. It does not change the test.
Melina BATH: I thought in the bill briefing there was some discussion about that community recognition. I felt that the bill was trying to clarify that more. So is the onus for that community recognition now put on the First Peoples’ Assembly? Has it changed from the last few years? Can you just provide that context for me?
Lizzie BLANDTHORN: Nothing has changed the previous tests.
Bev McARTHUR: Just further to that line of questioning, Minister, what is the expected voter turnout threshold for legitimacy? How will transparency be ensured if participation remains under 10 per cent in the election of the assembly?
Lizzie BLANDTHORN: This goes to the questions that we addressed earlier today, Mrs McArthur. As we have said, the assembly has a strong and growing voter turnout. Since its first election in 2019, the assembly has more than tripled its role. The 2023 election saw a 200 per cent increase in votes cast, with more than 7000 people participating. The assembly electoral roll is, obviously, held by the assembly, as we spoke about earlier and, as I said, voting continues to increase.
Melina BATH: That was good because I actually did some homework over the lunchbreak just to assess, because you said that 8000 people are on the First Peoples’ Assembly electoral roll at the moment – I think that was correct.
Lizzie BLANDTHORN: That is my advice.
Melina BATH: That is your advice. That is fine. Then there was a 200 per cent increase. The 2019 turnout would have been around 2500 voters. If that was the case and there was a 200 per cent increase, then you are up around 7500 voters. At the moment we cannot get an actual figure – I was trying to do that homework. Is that consistent with your advice, Minister?
Lizzie BLANDTHORN: Yes. The annual report says more than 7000.
Melina BATH: The ABS and the census data that I can see says that the Aboriginal and Torres Strait Islander population in Victoria is, and I will say approximately, 66,000. Based on the facts that I can glean from those figures, that 7500 is about 11 per cent of the entire population. That is my understanding, Minister.
Lizzie BLANDTHORN: Those figures that you quote, Ms Bath, would also obviously include people who are under 16 and people who do not meet other eligibility requirements, such as how long they have been in Victoria.
Melina BATH: So then that 66,000 represents every man, woman and child. Does the government have any other figures around that 66,000 about what proportion would then be of voting age, which would be 16 upwards? Does the government have any understanding? I am just trying to get a picture of the make-up of this cohort, our Aboriginal and Torres Strait Islanders.
Lizzie BLANDTHORN: Not at hand, Ms Bath.
Bev McARTHUR: Minister, in part 4 regarding rule-making powers, clauses 30 to 48, what safeguards exist to prevent the assembly from expanding its own powers through internal rules?
Lizzie BLANDTHORN: Internal rules, Mrs McArthur, can only relate to internal affairs.
Bev McARTHUR: Minister, how will Parliament or the courts determine whether a rule, even an internal rule, exceeds its mandate?
Lizzie BLANDTHORN: Internal rules made by the assembly of Gellung Warl must be consistent with state and Commonwealth legislation and statutory rules. In such a case of inconsistency the state or Commonwealth law or statutory rule prevails, Mrs McArthur. The bill only includes the one substantive rule-making power in relation to how First Peoples organisations in Victoria provide certification or evidence that a person is accepted as Aboriginal or Torres Strait Islander, but in relation to internal rules that is how it will apply.
Bev McARTHUR: Why are the rules not subject to ordinary subordinate legislation scrutiny under the Subordinate Legislation Act 1994?
Lizzie BLANDTHORN: The internal rules, Mrs McArthur, relate to the internal affairs and operations of Gellung Warl, such as rules about elections, conflicts of interest, the appointment of chairpersons of the First Peoples’ Assembly, the appointment of the CEO and staff recruitment, for example. I would also make the point, Mrs McArthur, that internal rules cannot be inconsistent with any other act or statutory rule, as per clause 34 of the bill.
Bev McARTHUR: Will guidelines issued by the assembly be legally binding if incorporated into state contracts?
Lizzie BLANDTHORN: If people voluntarily choose to enter into a contract or agreement, Mrs McArthur, then the usual contract laws would apply.
Bev McARTHUR: If there was a state contract and the assembly disagreed with that state contract, who would have authority over that contract? Would it be the state or the assembly, who can set their own rules in relation to things?
Lizzie BLANDTHORN: It might help, Mrs McArthur, if you could clarify exactly what sort of contract you are talking about, and between whom?
Bev McARTHUR: Well, if there was a contract between a corporation and the state, could the assembly have any authority over that?
Bev McARTHUR: Minister, clause 66 requires a statement of treaty compatibility. Is this not compelled political speech for members of Parliament?
Melina BATH: I want to go into the Public Administration Act 2004, clause 10. As I see it, there is an exemption from that part of the act, which would normally enforce employment standards and various levels of hiring and accountability across the sector. I want to understand why the government chose to make exemptions. Explain how those exemptions work and define the difference between what happens normally in a different statutory body and Gellung Warl.
Lizzie BLANDTHORN: It is to maintain the independence of Gellung Warl.
Melina BATH: That was nice and short, Minister. Thank you. It is to maintain the independence of Gellung Warl. From that, then, Gellung Warl is able to set its own salaries and employment terms. Is that correct?
Lizzie BLANDTHORN: This is a usual process, Ms Bath, including for other statutory entities like local councils.
Melina BATH: Do local councils provide the salaries and employment terms either to the Minister for Local Government or in financial reports at the end of the year? If so, is Gellung Warl subject to the same level of transparency and information requirements as, for example, under the Local Government Act 2020?
Lizzie BLANDTHORN: Local councils also have the PAA exemption, Ms Bath, but the Public Administration Act 2004 does obviously, as I have said, not apply to Gellung Warl or persons appointed or employed by Gellung Warl. This ensures that Gellung Warl members and staff are not captured by the general administrative regime that applies to the public sector, so as to facilitate their independent operation of the tailored governance and democratic accountability framework established by the bill. This reflects the position of Gellung Warl as a distinct category of government in Victoria, as is the case for local government – obviously, as I said, also not subject to the PAA.
Melina BATH: So are those particular rules around employees and salaries transparent in any way? Does the minister get to understand what they look like, or are there internal eyes on this only?
Lizzie BLANDTHORN: As I said, Ms Bath, it is to maintain the independence of Gellung Warl.
Bev McARTHUR: Minister, clauses 83 to 89 compel departments and agencies to respond within 60 days to assembly requests. Has Treasury estimated the administrative cost of compliance?
Lizzie BLANDTHORN: The legislation is before the house now, Mrs McArthur, and those costs will be taken into consideration at a later date.
Bev McARTHUR: Minister, the state is clearly going to incur costs. Surely you would have been able to establish exactly what this legislation is going to cost the state of Victoria. Isn’t it essential to know how much this particular clause is going to cost?
Lizzie BLANDTHORN: Mrs McArthur, I am here progressing the treaty bill as the representative of the minister for First Peoples, and those are matters that you would take up with the Treasurer. But I would say that it will streamline engagement with First Peoples organisations. Government already responds to correspondence within existing resourcing, and I do not imagine that this would be terribly different.
Bev McARTHUR: We will suck it and see, I guess is the answer to that. What enforcement mechanism applies if a minister or department disagrees with an assembly recommendation?
Lizzie BLANDTHORN: None.
Bev McARTHUR: Clauses 94 to 107 give inquiry powers across government. How is duplication with IBAC, the Ombudsman or the Auditor-General avoided?
Lizzie BLANDTHORN: We do not envisage duplication. They would be inquiring into different things, Mrs McArthur, and their functions are different.
Bev McARTHUR: I guess we will have to just see. Minister, the preamble of the bill says:
Future Treaties will continue to advance and restore the inherent rights of First Peoples and honour First Peoples’ Ancestors and Elders.
This means that treaties will continue to be made into the future. Wouldn’t additional treaties divide Victoria into multiple nations?
Lizzie BLANDTHORN: Mrs McArthur, we are here advancing this Statewide Treaty Bill. The answer to your question on the evolution of treaty, including individual treaties, is no. This is intended not to be divisive but indeed to bring Victorians together in the spirit of recognising self-determination. Sorry, Mrs McArthur, while I turn the pages here – it tells me exactly what I have already told you, Mrs McArthur. It is about bringing people together.
Bev McARTHUR: How many future treaties do you envisage and with whom?
Lizzie BLANDTHORN: Treaty will evolve, Mrs McArthur.
Bev McARTHUR: Again we will have to wait and see. Minister, part 7, clause 66 of the bill outlines the process by which a member of Parliament has to issue a statement of treaty compatibility, to be prepared in respect of that bill. In particular I want to ask about subparagraph (ii) of subclause (3)(d), where the member has to state in their opinion whether the bill is compatible with addressing the unacceptable disadvantage inflicted on First Peoples by the historic wrongs and ongoing injustices of colonisation. In Australia we have an implied right to freedom of political communication recognised by the High Court, but this provision would compel a politician to actually say that colonisation has caused historic wrongs and ongoing injustices. Has the government considered that compelling an MP to do this may violate their right to freedom of political communication?
Lizzie BLANDTHORN: Members of Parliament who propose to introduce a bill to Parliament will indeed prepare a statement of treaty compatibility to be presented before the second-reading speech, and this will require setting out details of consultation, if any, with the assembly of Gellung Warl and an assessment of whether the bill is compatible with certain objects – similar to the obligation to prepare a charter assessment, for example. The statement of treaty compatibility will be required to state whether the assembly of Gellung Warl has been given an opportunity to advise on the bill or has otherwise made representation about the effect of the bill; the nature and timing of the opportunity to advise of representations made; whether in the member’s opinion the bill is consistent with any advice given or representations made; and whether in the member’s opinion the bill is compatible with advancing the inherent rights and self-determination of First Peoples, addressing the disadvantage inflicted on First Peoples by the historic wrongs and ongoing injustices of colonisation and ensuring the equal enjoyment of human rights and fundamental freedoms by First Peoples. The statement of treaty compatibility will assist members of Parliament to assess the impacts of proposed laws on First Peoples before voting on such laws, and indeed it is the intention of these statements to create better policy and laws.
Bev McARTHUR: Part 10 – and excuse me if I have got the pronunciation wrong – ‘Nyerna Yoorrook Telkuna’, clauses 117 to 129: how will truth-telling findings be verified?
Lizzie BLANDTHORN: Nyerna Yoorrook Telkuna will facilitate truth-telling about historical events. It will collect and hold an archive of truth-telling information. It will conduct research. It will provide education and support the public understanding of the history of our state. It will facilitate truth-telling about historical events, and in doing so it will also facilitate understanding of the ongoing contemporary impacts of historical events and support and promote healing and reconciliation. It will receive and collect information; hold an archive of truth-telling information which will build on the official public record of the Yoorrook Justice Commission; conduct research; provide education; and support understanding of the history of our state, including in a place-based and local way. It must include the involvement of all Victorians, Aboriginal and non-Aboriginal. I will leave it at that.
Bev McARTHUR: Does the minister accept that publishing one-sided historical interpretations could have reputational or legal consequences for individuals and institutions?
Lizzie BLANDTHORN: As I said, it must include the involvement of all Victorians, Aboriginal and non-Aboriginal, and its focus is on reconciliation.
Bev McARTHUR: How do all Victorians get involved in the truth-telling process?
Lizzie BLANDTHORN: As I indicated in my earlier answer, the role of the truth-telling body will be to conduct research and to provide education. There will be local place-based truth-telling in local communities. There will be the opportunity to contribute to the record that they collect through the receipt of information, holding that information and building on the record that was created by Yoorrook. They will conduct other research. There will be numerous ways in which all Victorians can be involved in the collection and verification of information.
Bev McARTHUR: Why is Gellung Warl granted exemptions from the Freedom of Information Act 1982 – clause 141?
Lizzie BLANDTHORN: I refer you to my earlier answers.
Bev McARTHUR: Does the government accept that cultural secrecy should not equate to cabinet confidentiality?
Lizzie BLANDTHORN: Again, I would refer you to my earlier answers.
Joe McCRACKEN: On clause 10, clause 10(2) establishes the three bodies, as has been spoken about. Are these three separate legal entities or functional divisions of one single statutory corporation?
Lizzie BLANDTHORN: It is one statutory body with three arms.
Joe McCRACKEN: Clause 10(4) states that Gellung Warl does not represent the Crown but is a public authority for the purposes of the Charter of Human Rights and Responsibilities Act 2006. Does this create a hybrid status similar to that of statutory corporations?
Lizzie BLANDTHORN: It is a statutory corporation.
Joe McCRACKEN: What are the implications of Gellung Warl not being a Crown body? For instance, does it lose access to Crown immunity, and can it sue or be sued as an ordinary corporation?
Lizzie BLANDTHORN: It is a separate Aboriginal body, separate from the Crown, and it can be sued.
The ACTING PRESIDENT (Gaelle Broad): We will suspend proceedings for 5 minutes, just for a short break. Then we will come back and Mr McCracken will have the floor.
Sitting suspended 4:28 pm until 4:35 pm.
Joe McCRACKEN: I know there has been a little bit of discussion about clause 10(5), which talks about the disapplication of the Public Administration Act 2004. Does the exemption remove public sector employment standards, whistleblower protections and those sorts of things?
Joe McCRACKEN: How will conflicts between the various arms of Gellung Warl be resolved if each claims autonomy under different parts of the act?
Lizzie BLANDTHORN: Through internal rules, and the act limits information flow between them.
Joe McCRACKEN: Sorry, Minister, I missed that.
Lizzie BLANDTHORN: Through the internal rules, and the act limits the information flow between them in order to protect their independence.
Joe McCRACKEN: I will move on to clause 11, which is about the common seal. Clause 11(1)(a) and (b) vest custody of the use of the seal in accordance with the internal rules. Who is responsible for ensuring those rules provide adequate controls to prevent the unauthorised use of that seal?
Lizzie BLANDTHORN: The internal rules, which obviously are also provided to the minister.
Joe McCRACKEN: Clause 11(2) provides that courts may take judicial notice of the common seal. Does this elevate Gellung Warl to the same evidentiary status as a statutory authority? I am guessing yes, but I just want it on the record.
Lizzie BLANDTHORN: Gellung Warl is a statutory authority.
Joe McCRACKEN: Is there any requirement for registration of instruments executed under this clause in the register of statutory bodies maintained by the Department of Government Services?
Joe McCRACKEN: Why?
Lizzie BLANDTHORN: The independent authority of Gellung Warl.
Joe McCRACKEN: I am going to clause 12, which talks about the functions and powers of Gellung Warl. Clause 12(1) states that:
The functions of Gellung Warl are the functions conferred on the First Peoples’ Assembly, Nginma Ngainga Wara and Nyerna Yoorrook Telkuna …
Does that mean that Gellung Warl has concurrent jurisdiction with its bodies, or are the powers mutually exclusive? Does that make sense? I apologise – I will try and make it as easy as I can. It says in clause 12(1):
The functions … conferred on the First Peoples’ Assembly …
and they have got the names there. The powers that they have, do they cross over or are they mutually exclusive from each other – does that make sense – the three arms?
Lizzie BLANDTHORN: They are distinct. They have distinctive functions. They are obviously all part of the one statutory entity. The internal rules which we referred to earlier will provide limits on how information would flow between them.
Joe McCRACKEN: Clause 12(3)(b) authorises Gellung Warl to engage in commercial activities to raise revenue. Are there limits that exist to ensure that such activities do not conflict with its representative role or create any sort of risk?
Lizzie BLANDTHORN: Gellung Warl is subject to the Financial Management Act. An example of the sort of thing we are talking about is that the assembly currently run Treaty Day Out, for example. They would still be able to conduct such events.
Joe McCRACKEN: How will accountability for financial transactions be ensured given the disapplication of the Public Administration Act 2004 and the autonomy conferred within that clause?
Lizzie BLANDTHORN: They remain subject to the Financial Management Act.
Joe McCRACKEN: Just that one.
Lizzie BLANDTHORN: Yes.
Joe McCRACKEN: Okay. I will go on to clause –
Lizzie BLANDTHORN: Sorry, Mr McCracken, just to supplement that, obviously there is the usual – as we have gone through a number of times already today – oversight bodies et cetera. There are other levels of oversight, but in terms of the specifics of your question, the Financial Management Act.
Joe McCRACKEN: I am going to clause 13. Could the absence of ministerial control limit the government’s ability to intervene if Gellung Warl acts unlawfully or beyond its power? I am happy to rephrase it.
Lizzie BLANDTHORN: Yes, good.
Joe McCRACKEN: My question is essentially saying that if, for whatever reason and in whatever circumstance, Gellung Warl acts outside of its bounds, without ministerial oversight, how do you correct that?
Lizzie BLANDTHORN: Gellung Warl can obviously only spend in accordance with the bill and must provide annual reporting of its operations and its financial statements under the Financial Management Act. As I said, it is subject to the other layers of oversight and so forth. I would also refer you back to my earlier answers in relation to the ways in which, if necessary, these things can be held to account, either through oversight bodies or ultimately through dissolution in those provisions. There are a number of ways in which that can happen, but they are subject to the Financial Management Act and the usual oversight activities.
Joe McCRACKEN: I will move on to clause 14. How will matters relating to local government be defined? Would that include matters such as planning schemes, land management or community services, for example? What is the definition of ‘matters relating to local government’ under clause 14?
Lizzie BLANDTHORN: It would be as defined by the matters that are associated with local government as through the Local Government Act.
Joe McCRACKEN: Well, I know the Local Government Act, and the Local Government Act does not define what it is responsible for. So I ask the question: how is that defined within this current circumstance?
Lizzie BLANDTHORN: The key point here, Mr McCracken, is that Gellung Warl will not be able to exercise its statutory advisory functions and powers in relation to local government. Specifically, Gellung Warl will be able to continue to conduct the usual and general engagement with local councils that currently the assembly conducts. If matters relating to local government are raised through the exercise of Gellung Warl’s advisory powers, then those matters in particular would be directed to the relevant minister.
Joe McCRACKEN: I am just a bit worried there, because obviously the Local Government Act, as far as I am aware, does not define what it is responsible for and what it is not responsible for. It is a pretty serious question because this piece of legislation obviously has an interaction with that, as the minister has said. I am asking: how is that defined? How does that work? You could talk about many different aspects of local government, from local roads, to planning, to public land use and all those sorts of things, but unless it is defined, what is the limit?
Lizzie BLANDTHORN: If it was a matter generally understood, to take your examples of local roads or whatnot, then those issues would be raised in conjunction with the relevant minister, essentially attempting to establish the independence of Gellung Warl, the responsibilities of the state, and how it will interact with local government which, to repeat my point from before, will not be able to exercise its statutory advisory functions and powers in relation to local government. Those matters remain the responsibility of local government and then, as duly necessarily, are raised with the relevant minister.
Joe McCRACKEN: In the circumstance where there is joint funding – for example, in local government, libraries are jointly funded. If Gellung Warl says there should be a particular piece of literature in a library, does that fall with a local government authority or does it fall with the state in terms of talking about that particular matter?
Lizzie BLANDTHORN: In that instance Gellung Warl would go to the Minister for Local Government, who would then take the matter up.
Joe McCRACKEN: Could a local council refuse to engage with Gellung Warl on the basis that its statutory functions under the Local Government Act 2020 are independent of state direction?
Lizzie BLANDTHORN: Yes.
Joe McCRACKEN: Does this clause, clause 14, imply that any memorandum of understanding between Gellung Warl and local councils must be endorsed by the Minister for Local Government?
Joe McCRACKEN: I will go to clause 15. Clause 15(1) and (2) provide broad indemnities for members, staff and office bearers acting in good faith. Is there any upper limit or statutory cap on the financial exposure of the state arising from such indemnities?
Lizzie BLANDTHORN: They are not immune to legal liability, and the standard provision applies.
Joe McCRACKEN: Would the indemnity cover acts of negligence, defamation or breaches of fiduciary duty, provided they were done in good faith?
Joe McCRACKEN: Are these indemnities self-funded by Gellung Warl or guaranteed through consolidated revenue to be covered?
Lizzie BLANDTHORN: Gellung Warl would do the indemnity.
Joe McCRACKEN: What audit mechanism exists to ensure claims under those indemnities are properly validated and reported publicly or to the Parliament?
Lizzie BLANDTHORN: Gellung Warl would remain subject to VAGO.
Joe McCRACKEN: How does this indemnity provision compare to those applicable to public sector boards under section 76 of the Public Administration Act 2004?
Lizzie BLANDTHORN: This is a standard provision, Mr McCracken, that protects members and staff from financial loss incurred in carrying out functions or powers, and it is not an immunity from legal liability.
Joe McCRACKEN: I will move on to clause 16. Clause 16(1) establishes the First Peoples’ Assembly as a self-determining, democratically elected, enduring institution. What is the legal meaning of ‘self-determining’ within the context of Victorian law, and does it imply autonomy beyond that of a statutory authority, which, as you have said, this is.
Lizzie BLANDTHORN: Self-determination is not unique to an Aboriginal affairs framework. It has indeed been determined by the courts previously.
Joe McCRACKEN: The question I asked was really: does it imply autonomy beyond that of a statutory authority? I did not really think I had a clear response to that.
Joe McCRACKEN: No. It does not. Okay. Thank you, Minister. I appreciate that. Clause 16(2) states that the assembly is answerable to First Peoples through its democratic nature and cultural obligations. What legal mechanisms exist to enforce accountability through cultural obligations, and who adjudicates compliance with those cultural obligations?
Lizzie BLANDTHORN: The First Peoples’ Assembly is responsible for ensuring Gellung Warl remains answerable to First Peoples through its democratic nature, community accountability requirements and cultural obligations and responsibilities. The community governance and answerability framework will set out how the assembly will practically engage with First Peoples by a set of principles, a charter, a vision and a strategic plan, which will need to be followed by the assembly. The approach has been modelled on the Local Government Act 2020.
Joe McCRACKEN: I am not quite clear, Minister. I do apologise if I did not hear it correctly. My question was particularly about what legal mechanisms exist to enforce accountability, particularly the point about cultural obligations which you just mentioned, but particularly who adjudicates compliance with those cultural obligations, whatever they may be.
Lizzie BLANDTHORN: The assembly.
Joe McCRACKEN: I will move on to clause 17. Clause 17 establishes membership through election or appointment in accordance with the electoral rules. Are those electoral rules subordinate legislation under the Subordinate Legislation Act 1994, or are they internally binding instruments only?
Lizzie BLANDTHORN: Internal.
Joe McCRACKEN: What legislative oversights exist to ensure those rules comply with the Victorian electoral standards – for example, universal suffrage, transparency or anti-corruption provisions?
Lizzie BLANDTHORN: I would refer you to my earlier answers, in relation to both the election of the assembly and oversight.
Joe McCRACKEN: How does the mixture of elected general members and reserved members align with the principle of one person, one vote, and does it risk contravening section 85 of the Constitution Act 1975 concerning representative democracy?
Joe McCRACKEN: What is the legal status of decisions of the assembly if an election or appointment is later declared invalid under part 6?
Lizzie BLANDTHORN: It would then be void, Mr McCracken, is my advice.
Bev McARTHUR: Minister, will the Yoorrook commission’s 100 recommendations still be considered in the future treaties?
Lizzie BLANDTHORN: I am not entirely sure how your question relates directly to the bill, but the Yoorrook Justice Commission made a number of recommendations that remain a priority for government and in particular Gellung Warl.
Bev McARTHUR: Maybe you can continue to answer the question about the Yoorrook commission recommendation 19, which requires churches to hand over land or share land sale profit. Would that be included in future treaties, do you envisage?
Lizzie BLANDTHORN: That would be a matter for the relevant churches, Mrs McArthur.
Bev McARTHUR: But nothing to do with the government?
Lizzie BLANDTHORN: I refer you to my previous answer, Mrs McArthur.
Bev McARTHUR: To what extent will truth-telling impact the Victorian curriculum? Would it be a change in a history subject, for example, or is it a whole-school approach?
Lizzie BLANDTHORN: Mrs McArthur, this treaty does not change the Victorian curriculum as Aboriginal and Torres Strait Islander cultures and histories are already in the curriculum. One of the Statewide Treaty reforms included in the Statewide Treaty is the use of the Yoorrook Justice Commission’s official public record as an optional, not mandated, resource for schools that deliver the Victorian curriculum foundation to year 10. The resources used to teach Yoorrook’s official public record will be co-designed between the assembly of Gellung Warl, the Victorian Curriculum and Assessment Authority, the Victorian Aboriginal Education Association Inc and the responsible department and will be subject to approval by the responsible minister.
Bev McARTHUR: Clause 144 establishes a standing appropriation. How can Parliament fulfil its constitutional role over public finance when expenditure is automatic and unreviewable?
Lizzie BLANDTHORN: I refer you to my earlier answer, Mrs McArthur.
Bev McARTHUR: Has the department modelled the total 10-year cost?
Lizzie BLANDTHORN: Again, Mrs McArthur, I refer you to my earlier answers. I will always endeavour to supplement that and be as helpful as I can, Mrs McArthur, if you bear with me.
Mrs McArthur, the funding provided for in the appropriation is, I am advised, appropriate for the functions, and as I have spoken to previously, Gellung Warl will be responsible under the Financial Management Act and subject to the usual accountability and oversight mechanisms.
Bev McARTHUR: Minister, on clauses 151 to 158, who enforces misconduct provisions if the treaty authority itself is not independent of Gellung Warl?
Lizzie BLANDTHORN: It is independent, Mrs McArthur. It is its own statutory agency.
Bev McARTHUR: So are the standards consistent with the Public Administration Act 2004?
Lizzie BLANDTHORN: They will need to be developed, Mrs McArthur, but the intention is: yes.
Bev McARTHUR: Who will be developing them?
Lizzie BLANDTHORN: The internal rules are obviously developed by the assembly and presented to the minister, Mrs McArthur.
Bev McARTHUR: If they are being developed internally, they have not been developed so far, so we do not know what the standards will be.
Lizzie BLANDTHORN: They will be developed, Mrs McArthur.
Bev McARTHUR: Within what timeframe?
Lizzie BLANDTHORN: Mrs McArthur, could you please clarify your question for us?
Bev McARTHUR: We were referring to the standards consistent with the Public Administration Act. You said they were being developed by Gellung Warl. I am just asking: in what timeframe will they be developed?
Lizzie BLANDTHORN: Are you referring to the member standards, Mrs McArthur?
Bev McARTHUR: Yes.
Lizzie BLANDTHORN: Yes. Sorry, that was my fault, my misinterpretation of your question. The advisers in the box were correct. Clause 153 specifies the member standards of conduct and the minimums that are to be included, so that is set out in the legislation. My apologies; I thought you were asking something different.
Bev McARTHUR: Part 14 talks about community answerability. How will community answerability be measured?
Lizzie BLANDTHORN: My advice is evolving as I stand here. The First Peoples’ Assembly is responsible for ensuring Gellung Warl remains answerable to First People through its democratic nature, community accountability requirements, as you said, and cultural obligations and responsibilities. The community governance and answerability framework will set out how the assembly will practically engage with First Peoples via a set of principles, a charter, a vision and a strategic plan, which will need to be followed by the assembly. This approach has been modelled on the Local Government Act. The First Peoples’ Assembly community answerability obligations are modelled on the requirements of local councils as well as the practices of the current First Peoples’ Assembly of Victoria. The current assembly is obviously the Aboriginal representative body under the treaty act. As a democratically elected body of 34 members the current assembly has been effective in representing the diversity and interests of traditional owners and Aboriginal Victorians in Victoria’s treaty process since 2019.
Under part 14 of the bill, as you referred to before, Gellung Warl is required to develop a community governance and answerability framework that remains publicly accountable and answerable to its constituents. This framework, as I said, has been developed in consultation with First Peoples. It must include the larbargirrar gnuurtak tulkuuk, community answerability principles, including that community members must have the opportunity to access accurate, relevant and timely information and a community engagement charter to give effect to the larbargirrar gnuurtak tulkuuk principles and describe types of community engagement that will be undertaken by the First Peoples’ Assembly; a Ngarrakeetoong Martongakeeyt, which will describe the aspiration of the First Peoples’ Assembly’s constituents as well as Gellung Warl’s goals and objectives; and a strategic plan to set out the strategic directions and objectives of Gellung Warl.
Bev McARTHUR: There was a lot in that, Minister. Gellung Warl is answerable to itself, correct, not the outside community?
Bev McARTHUR: Minister, can you define community answerability?
Lizzie BLANDTHORN: Again I refer you to my previous answer.
I can add to that, Mrs McArthur, for you. Part 14 provides a framework for how Gellung Warl ensures it is answerable and accountable to community and how it performs its functions and exercises its powers. ‘Community’ is defined to mean First Peoples and First Peoples organisations, which reflects the broad collective of persons which Gellung Warl represents and acts in relation to. This is an intentionally broader collective than eligible electors, who are persons listed on the Gellung Warl electoral roll. This recognises that First Peoples that do not meet the eligibility requirements, such as age and residency requirements, for inclusion on the Gellung Warl electoral roll or that are eligible but have chosen not to enrol are able to engage with the body that represents them in relation to the state of Victoria and under Statewide Treaty.
Bev McARTHUR: Thank you, Minister, for that clarification. What you are saying is community answerability refers to their own community, not the wider Victorian community.
Lizzie BLANDTHORN: I will refer you to my previous answer, which is yes.
Melina BATH: Minister, just for clarity, when we have the statement of treaty compatibility, that is all bills, both government-based bills and private members bills? I did not hear you mention that.
Lizzie BLANDTHORN: Yes.
Melina BATH: Has the government done any modelling about additional staff required, whether it be for a private member’s bill or for a government minister, in creating that statement of treaty compatibility, of what additional staff resources? Are legal experts or experts in relation to treaty and First Peoples required? How does that look, Minister?
Lizzie BLANDTHORN: As with statements of compatibility prepared in accordance with the Charter of Human Rights and Responsibilities Act, it is estimated that there would be some additional consideration and preparation required to ensure that statements of treaty compatibility are provided to Parliament. However, the experience in relation to the charter is that these requirements are not unduly burdensome and that the process itself supports better policy and lawmaking.
Melina BATH: I understand that and I appreciate that. I am just trying to get an understanding about any additional level of staffing or resources. That did not provide that clarity. I am just trying to understand how many extra people this would require in terms of bureaucrats or staffing.
Lizzie BLANDTHORN: As I said, Ms Bath, it is estimated that the experience in relation to the charter is that these requirements are not unduly burdensome. The process, as we said, supports better policy and lawmaking. It is not intended that that would become so burdensome as to become an imposition in the way that you are insinuating.
Melina BATH: Minister, please do not get me wrong, I am not insinuating anything, I am just trying to understand the ramifications. You, Minister, have had the long privilege of being in government. Having not been on that side, I am yet to understand the processes around the consultation that would occur. How does the government or a private member’s bill and the First Peoples’ Assembly, Gellung Warl, ensure that it is not holding up the flow of bills through the house, noting that every single bill has to have a statement of treaty compatibility? How is that going to look, Minister, in the reality of application?
Lizzie BLANDTHORN: I appreciate that we have been in government for a long time and it is not, as you said yourself, something you have yet experienced. But in relation to the process of applying the charter test to bills, it is business as usual across government. It is not considered burdensome. It is something that is built into the process, and building this into the process is intended to be complementary to that.
Melina BATH: I am not going to labour the point. My last question on this is: is there any reporting on that function of the statement of compatibility normally? Is there any reporting in that? How is it measured now for the current one? Is there any reporting on that?
Lizzie BLANDTHORN: Ms Bath, not that I am aware of. If there is something different that I am not aware of, we can provide that to you. The only other thing I would add is: indeed you and I both, in our first term, were on the Scrutiny of Acts and Regulations Committee (SARC) together and there is nothing to say that it cannot also go through that process.
Melina BATH: That is an interesting one, because the scrutiny of acts and regulations is a very important feature of parliamentary scrutiny. So I could ask: would the statement of compatibility for treaty go through SARC?
Lizzie BLANDTHORN: It would be a matter for SARC.
Joe McCRACKEN: I will go to clause 18, Minister. Clause 18(1)(a) empowers the assembly:
to represent First Peoples and make decisions in relation to First Peoples …
Does this confer a general representation mandate akin to a parliament, or are decisions confined to internal governance?
Lizzie BLANDTHORN: Gellung Warl can only make decisions on those matters which are contained in the bill, and one example of that is administering the infrastructure grants, but certainly they represent First Peoples to Parliament and to government.
Joe McCRACKEN: Clause 18(1)(c) authorises participation in statewide treaty negotiations. Is this function statutory, or is it merely a facilitator sort of way of making a separate treaty at a future point in time?
Lizzie BLANDTHORN: Sorry, I am not sure we understand the question, Mr McCracken. Could you rephrase it?
Joe McCRACKEN: So 18(1)(c) authorises participation in statewide treaty negotiations. Is this function statutory? I will ask that question for a start.
Lizzie BLANDTHORN: The statute will ensure that Gellung Warl represents First Peoples in ongoing decision-making.
Joe McCRACKEN: Clause 18(1)(d) allows the assembly to make representations to Parliament, which you alluded to before, Minister. Does this confer a statutory right to an audience of either house? I will just ask that question first: does that confer a statutory right to an audience in either house?
Lizzie BLANDTHORN: As I said earlier, Mr McCracken, that will be up to the presiding officers.
Joe McCRACKEN: Clause 18(1)(f) and (g) empower the assembly to make guidelines and standards and appoint a chief executive officer. Are these instruments reviewable under administrative law? Are they subject to internal governance?
Lizzie BLANDTHORN: Rules made by the assembly of Gellung Warl must be consistent with state and Commonwealth legislation and statutory rules. In such a case of inconsistency, the state or Commonwealth law or statutory rule prevails.
Joe McCRACKEN: Clause 18(2) requires collaboration with traditional owner groups. Does this clause create an enforceable duty, or is it an aspirational statement?
Lizzie BLANDTHORN: It is not enforceable, Mr McCracken, and there are robust complaint processes that can take place.
Joe McCRACKEN: Just to be clear, those particular aspects where it requires collaboration with traditional owner groups – they are not enforceable. Is that a correct understanding?
Lizzie BLANDTHORN: Mr McCracken, on the example that has just been used, in many respects it is neither of those two things. Consider that the principles of self-determination – we will take, for example, place naming – will require Gellung Warl to consult with the relevant traditional owners in relation to place naming. So the question, as you put it, is very difficult to answer because in many respects it is neither of those two things. But when we consider the principles of self-determination and the necessary consultation that flows from that with the people who are making the decisions for themselves, then that will be the process.
Joe McCRACKEN: I can appreciate that, Minister, and thank you, but my question is: what if that does not happen? How is that enforced?
Lizzie BLANDTHORN: Mr McCracken, perhaps it would help if we talk about who could make a complaint, for example, and that might allay your fears. The bill sets out an additional internal complaints mechanism, which is on top of the existing complaint mechanisms available to all people, which apply to bodies like Gellung Warl. The additional internal complaint mechanism sets out that complaints can be made directly to Gellung Warl by any individual of the First Peoples or First Peoples organisation that have an interest in the subject matter of the complaint. This process is additional to existing oversight mechanisms that apply to public bodies, which are accessible by any person. For instance, any person can make a complaint about Gellung Warl or its members to a relevant integrity or oversight body with jurisdiction to hear such complaints or through other standard avenues such as their local member of Parliament or through existing legal mechanisms. The First Peoples’ Assembly is required to make rules about how complaints to Gellung Warl are handled. As a minimum, complaints must be reviewed by someone other than the person who the complaint is about. The Treaty Authority can also assist in the resolution of complaints upon assembly request.
Joe McCRACKEN: Again, I can appreciate that there is a complaints process, and that might be one way of dealing with the matter after the fact of non-consultation occurring, but the one that I am referring to is clause 18(2). I will just read it out for clarity. It says:
The First Peoples’ Assembly is to work collaboratively with Traditional Owner groups in Victoria to meet cultural obligations and responsibilities and realise self-determination for First Peoples in accordance with the United Nations Declaration on the Rights of Indigenous Peoples.
My question is: how is that enforced? How do you make sure that the First Peoples’ Assembly works collaboratively with traditional owner groups? The reason I ask is because we have already heard earlier that sometimes there can be conflict between those different groups. What is the enforcement mechanism? I understand there is a complaints mechanism – I appreciate that – but how is it enforced?
Lizzie BLANDTHORN: It is an independent body designed around the principles of self-determination. There is a complaints mechanism if people feel aggrieved within that process, which I have just taken you through, and I would refer you to my previous answers.
Joe McCRACKEN: I did not get a response that addressed my particular question. I do not mean any disrespect to you, Minister, but I just really do not have clarity about how that is enforced. I will go on to clause 20, which is about delegations by the First Peoples’ Assembly of Victoria. Clause 20(1) permits delegations to committees or the chief executive officer. Are those delegations legislative in nature, and must they be gazetted before they are published?
Lizzie BLANDTHORN: It is a facilitative provision, so no.
Joe McCRACKEN: Clauses 22 to 3 exclude the delegation of key powers such as appointments and rule making and so forth. How will compliance with those limitations be audited or reviewed?
Lizzie BLANDTHORN: I refer you again, Mr McCracken, to my earlier answers in relation to the Victorian Auditor-General’s Office and other integrity agencies as necessary.
Joe McCRACKEN: Clause 20(4) allows delegation to appoint an acting chief executive officer. What safeguards exist to ensure that such appointments are merit based and may not be for any other particular purpose?
Lizzie BLANDTHORN: Clause 26 requires the First Peoples’ Assembly to develop, adopt and enforce an executive employment and remuneration policy, which must provide for the executive staff a recruitment and appointment process, including an annual review of executive staff. The executive and employment remuneration policy must provide for the recruitment and appointment process, for example, and for matters to be addressed in the contract, performance and monitoring and annual review of executive staff of Gellung Warl.
Joe McCRACKEN: With the greatest respect, I was referring to clause 20(6), not clause 26.
Lizzie BLANDTHORN: And 26, as I said, Mr McCracken, was the answer to your question in relation to 20(4).
Joe McCRACKEN: Okay. Clause 20(6) requires monetary limits for delegated expenditure. Will those limits be fixed in the internal rules, or are they subject to external financial management standards?
Lizzie BLANDTHORN: Both.
Joe McCRACKEN: Clause 20(7) mandates a public register of delegations. Will failure to maintain that register invalidate delegated acts?
Lizzie BLANDTHORN: As with my previous answers, Mr McCracken, there are the internal rules, there is the oversight, there is obviously the oversight of the integrity agencies, and they all apply as is relevant.
Georgie CROZIER: Minister, I have previously raised in the house the issues around the Medical Board of Australia’s code of practice, and I have referenced those. I am going to just repeat those because my question goes to the fact that the bill makes repeated reference to UNDRIP, including in the preamble and section 18, where it refers to article 5:
Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.
Yet the other international obligations Australia has been a signatory to in terms of the International Covenant on Economic, Social and Cultural Rights – and I will not go through that again – under article 2 refers to rights in the covenant being exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion. Again, the Medical Board of Australia’s code of conduct says things around those areas of discrimination as well.
So can I ask: which will be the priority for any health institution who want to clarify how they are to operate? Should it be under what is referred to in the bill, or will it be as in the medical code of practice and Australia’s international obligations as a signatory, as I have explained, around the discriminatory aspects that medicos and others try to avoid?
Lizzie BLANDTHORN: The guidelines in the bill are not binding.
Georgie CROZIER: The bill obviously has had a lot of preparation, and the Statewide Treaty, at clause 3, talks about Aboriginal lore, law and cultural authority, and I referred to this earlier in my previous questioning. It says:
The practice and revitalisation of Aboriginal Lore, Law and Cultural Authority has been upheld through Treaty negotiations that have resulted in this Statewide Treaty and will continue through further Statewide Treaties and Traditional Owner Treaties …
multiple. I know that Mrs McArthur has asked about what the expectation is around how many treaties this will entail, and I understand that you were unable to provide an answer to that. Nevertheless, I go to what has been tabled in the Parliament today, and that is the Treaty Authority 2024–25 Annual Report. Page 3 of the report goes on to say that:
Our mandate is also to ensure we uphold two systems of law – Aboriginal and Western.
So this emphasis on dual governance was confirmed by this report today. I would like to ask, Minister, what would happen if a non-Indigenous person was accused of a serious crime against an Indigenous person, or vice versa? Which criminal justice system would apply, and how would this be determined?
Lizzie BLANDTHORN: I would refer you to my earlier answer, Ms Crozier. Treaty is about bringing people together – the Victorian government, First Peoples and all Victorians. It is not about separating us or creating new systems. There is an existing criminal justice system that applies. This treaty will benefit us all as a change and as a new beginning, as an opportunity to reset the relationship between First Peoples and the state to create a better future. It is about those practical changes to do things better that we can all indeed get behind and be proud of. But there is an existing criminal justice system, Ms Crozier, and there is no intention to replace that.
Georgie CROZIER: So in terms of what is being said in this Treaty Authority report, the government has no intention to ensure that the mandate that they state to ensure we uphold two systems of law – Aboriginal and Western – will not take place through this treaty process.
Lizzie BLANDTHORN: I refer you to my previous answers, Ms Crozier. If you would like an official definition of law and lore, I can take you through that. But I can also simply refer you to my previous answers, because this is ground we have already well traversed today. But matters of Aboriginal law, lore and cultural authority are obviously matters for traditional owner groups to self-determine, and a definition is therefore not specifically in the bill. They do not operate in a homogeneous way across Victorian traditional owner groups and therefore cannot be defined in the bill. The treaty negotiation framework refers to the definition of Aboriginal law, lore and cultural authority depending on the context and the traditional owners involved, and the process for determining what Aboriginal law, lore and cultural authority is and how it applies in any particular context will be a matter for the internal rules of Gellung Warl.
As is recognised by the United Nations Declaration on the Rights of Indigenous Peoples, Aboriginal law and lore do form a legal system, and this includes a body of authority that informs agreement making, decision-making and governance structures, including rules about eldership and who holds cultural authority, for example. There is no intention here to replace. If what you are trying to get at is a replacement of the criminal justice system, that is not what this treaty does, Ms Crozier.
Georgie CROZIER: Thank you, Minister, for that assurance. But it is in the Treaty Authority annual report tabled today. That is very clear. And they go on and talk about the monumental treaty making and talk about the extensive negotiations that they have been undertaking, a whole range of things. Therefore I think it is very relevant for the Victorian public to understand exactly what is going on. I am not sure – if they are saying it is a mandate, if the Treaty Authority mandate is to have two systems of law, how can that be so? Given they have the authority, the self-determination and the body that you are setting up, can that body override what you have just said to me?
Lizzie BLANDTHORN: Ms Crozier, you are being, I fear, deliberately disingenuous here and divisive. But clause 43 specifically says all other acts of Parliament stand and are not replaced. Would you like me to repeat that? Clause 43 – all other acts of Parliament stand and are not replaced. The Treaty Authority is the independent body that oversees negotiations, and it also cannot override any other act of Parliament.
Georgie CROZIER: Well, thank you, I needed that answer 5 minutes ago. Minister, can I take you back to UNDRIP not being binding in relation to – in that preamble of the bill, which explicitly states that future treaties have to be negotiated in accordance with UNDRIP. Can you, Minister, clarify how it is not binding if future treaties will be negotiated in accordance with it?
Lizzie BLANDTHORN: The preamble is an interpretive provision only. Thank you, Ms Crozier.
Georgie CROZIER: You just faded away. The preamble is a what?
Lizzie BLANDTHORN: An interpretive provision.
Georgie CROZIER: However, if it is an interpretive provision, who will then make the final decision about how it is to be applied, how that article 5, as I read out previously, may be applied or not applied?
Lizzie BLANDTHORN: When the parties, Ms Crozier, are considering future treaties, they would consider how the UNDRIP principles of self-determination and free and prior and informed consent are already used, and how they will be used in future treaty making.
Bev McARTHUR: Minister, in clause 66 ‘Statement of Treaty compatibility’, the bill says:
A member of Parliament who proposes to introduce a Bill into the Parliament must cause a statement of Treaty compatibility to be prepared in respect of that Bill.
In particular, they must say:
(d) whether, in the member’s opinion, the Bill is compatible with—
…
(ii) addressing the unacceptable disadvantage inflicted on First Peoples by the historic wrongs and ongoing injustices of colonisation …
Minister, what if, hypothetically, an MP does not agree that there are ongoing injustices of colonisation? Are they still able to table this statement?
Lizzie BLANDTHORN: Yes, is the short answer. They do not have to do a statement. I will leave it there and refer you to my previous answer to the same question.
Bev McARTHUR: So they will not be forced to agree in order to table the statement?
Lizzie BLANDTHORN: They do not have to do a statement.
Bev McARTHUR: Can you explain the use of the phrase ‘ongoing injustices of colonisation’?
Lizzie BLANDTHORN: What we are embarking on here is a new relationship between the state and First Peoples, and I will refer you to my previous answers. I think we have well traversed today the impact of colonisation and the ongoing injustices. If I refer to my own portfolio, the continued over-representation of children in the out-of-home care system is a continuing injustice. The Yoorrook Justice Commission stated that the First Peoples have experienced systemic injustices. We are all hopeful that in resetting the relationship and in establishing treaty we will find a new way of a relationship that allows for self-determination and in so doing better outcomes, particularly as measured by the Closing the Gap indicators, for Aboriginal people.
Bev McARTHUR: You are saying that the ongoing injustices of colonisation have caused the issues that you are dealing with in your portfolio area?
Lizzie BLANDTHORN: Many examples have been provided by those here, and were documented in the Yoorrook Justice Commission’s report, of institutional racism and systemic and ongoing injustice for Aboriginal people. They have existed since colonisation. They remain real. Indicators such as the over-representation of children in out-of-home care is but one example of that. Over-representation of Aboriginal people in our corrective services is another. The hope in having this bill before Parliament today is that we have a reset of the relationship between government and First People and that we allow for the provision of self-determination. Again if I refer to an example in my own portfolio, we know that when Aboriginal families make decisions for their own Aboriginal children, there are better outcomes.
Bev McARTHUR: What you are saying then is your department will still be administering the care of those within your portfolio, but you have had 11 years to fix this problem. How come you have not fixed it by now? How is it that ongoing injustices of colonisation have not been repaired in the 11 years you have had to sort this problem out?
Ryan Batchelor: On a point of order, Deputy President, this is not an opportunity for question time about the minister’s portfolio. It is about questions relevant to the scope of the bill, and I think Mrs McArthur’s question falls outside of that.
Georgie Crozier: On the point of order, Deputy President, the minister referenced her portfolio, and she made that as an example, so I think Mrs McArthur is well in her rights to be asking the question as she has.
Lizzie Blandthorn: I am happy to answer.
The DEPUTY PRESIDENT: The minister has indicated that she is happy to answer. If the minister is happy to answer, I will allow her to answer.
Lizzie BLANDTHORN: I will answer Mrs McArthur by providing her with the exact same answer I did many hours ago. It may not have been Mrs McArthur directly, but it was certainly from those opposite. As I said in my speech yesterday, there have been, since colonisation, ongoing examples of injustices, systemic injustices, for Aboriginal people. But one of the things that we have learned over time, and Aboriginal people have always known and have always sought to tell us, is that when Aboriginal people make self-determined decisions, there are better outcomes. As I referred to in this place earlier, I was very pleased when Dr Bach was here and supported our legislation which enabled us to have Aboriginal children in Aboriginal care with both investigative and case management authority given to Aboriginal people for Aboriginal children, because we know that when Aboriginal families are cared for by their own families, we have better outcomes. That has been part of the journey towards treaty, and what we hope in establishing Gellung Warl and a self-determined authority that can provide this advice in a much more systemic way are the sorts of outcomes that we are seeing with things like –
Members interjecting.
The DEPUTY PRESIDENT: Sorry, Minister – can we just have some quiet? The Minister seems to be competing with some other conversations, and it is becoming confusing.
Lizzie BLANDTHORN: The short of my answer is: we know that when Aboriginal people make decisions for themselves, when they are self-determined decisions, we get better outcomes, and that is what we are seeking to do here.
Bev McARTHUR: Well, we can only assume you have not consulted with Aboriginal communities in administering your department care and responsibility over this period of time. But I will go to another point. Can you tell us –
Lizzie BLANDTHORN: On a point of order, Deputy President, I provide an answer, I get a statement and then I get an unrelated question, so I do not get the opportunity to rebut the statements that are put. If there are going to be statements that I need to respond to, then I would like the opportunity to respond to them before a subsequent question is raised.
The DEPUTY PRESIDENT: If you would like to respond, that is fine.
Lizzie BLANDTHORN: I can assure the house that – and again, if Dr Bach was here, he would also assure the house, because we worked on this together – when we established the legislation and the framework to provide for the care of Aboriginal children, for example, there was broad consultation with Aboriginal community controlled organisations about what was the best way in which to provide, in that instance, child protective services to Aboriginal people. I can talk about the Aboriginal Children’s Forum or the Aboriginal Justice Forum if we want to talk about consultation. What we are saying here is that treaty is a way forward for a self-determined authority that can, through a democratically elected, representative body, provide a formal way in which Aboriginal people can contribute on each and every piece if they have that advice to provide to government.
Bev McARTHUR: On a point of order, Deputy President, the Minister has gone over this before.
The DEPUTY PRESIDENT: That is not a point of order, Mrs McArthur. We will move on.
Bev McARTHUR: All right. Well, we will leave it there, and we will accept that the government have failed over a long period of time to deliver outcomes that they are now going to deliver with a new bureaucracy.
The DEPUTY PRESIDENT: Mrs McArthur, if we can just have a question without a statement in between, it might assist the committee, please.
Bev McARTHUR: Minister, can you just tell us how cultural heritage assessments and cultural heritage management plans will intersect with this new authority?
Lizzie BLANDTHORN: They will not.
Bev McARTHUR: So we will have cultural heritage assessments acting separately and we will have cultural heritage management plans which impact the community and especially local government – all very costly procedures. They will be operating, plus we will have this body intercepting in every department that we are dealing with. Is that how we will operate?
Lizzie BLANDTHORN: I refer you to my previous answer.
Melina BATH: Minister, on the Aboriginal heritage council – it is a very important council. It advises ministers on heritage issues, naturally – registers and permits and plans and sites and archaeology – and it promotes best practice of heritage management and cultural awareness. It consists of 11 traditional owners, and this bill removes the right of the minister to make determinations as to who those 11 traditional owners are and puts it in place with Gellung Warl. This is a shift of power, and I am interested in understanding how the new process will work to ensure that there is good representation across the state – that there is independence, that there is oversight and that there is confidence in that governance of the new bodies elected by Gellung Warl.
Lizzie BLANDTHORN: Gellung Warl, Ms Bath, is representative of the Aboriginal community, so they are best placed to determine the representatives.
Melina BATH: At the moment they have got 8000 voting members in that space. There are traditional owners; there are reconciliation action plans. There are some clans and members of our Aboriginal community that do not have either native title or a RAP status. How is the Gellung Warl going to ensure that there is fair assessment of those bodies and those people who are not sitting under RAPs or native title holders?
Lizzie BLANDTHORN: As I have said a number of times now today, Ms Bath, the First Peoples’ Assembly of Victoria is the independent, democratically elected body representing First Peoples in the treaty process. The assembly has been obviously operating since 2019. It has had two statewide elections. Its members were elected to represent the diversity of traditional owners and Aboriginal Victorians when working with the Victorian government to establish the elements necessary to support treaty negotiations and in the Statewide Treaty negotiations under the Treaty Negotiation Framework. The current assembly was elected to represent the diversity of those traditional owners and Aboriginal Victorians in Statewide Treaty negotiations under the Treaty Negotiation Framework. I will leave it there.
Melina BATH: In relation to the different regions, Minister, what frameworks will be put around to ensure that the larger entities will not have the larger share of the pie? I mean this in terms of whether it is either being selected on the Aboriginal council, for example, but not specifically, or in terms of funding allocation. Is it that Gellung Warl will be responsible for taking over the funding of ACCOs? How will there be a mechanism, and what level of transparency is there that there is fair representation – I mean, that there is equity in assessment and equity in funding for those smaller areas and smaller clans, as I said before?
Lizzie BLANDTHORN: I refer you to my previous answer on community answerability.
Melina BATH: Minister, earlier on today we were talking about a very important subject, which is Closing the Gap and the importance of closing the gap that has not been closed – and indeed some sectors and important targets are going backwards. You mentioned that there is going to be an independent panel, and at the end of five years the independent panel will assess Closing the Gap to see how it is all going. I want to understand the make-up of that independent panel. Can you inform us who will be on that independent panel? How will it be selected? That is my first question.
Lizzie BLANDTHORN: The state and Gellung Warl, as the parties, will determine who makes up the independent panel.
Melina BATH: So as it stands, there is absolutely no criteria as yet decided that is to come into the future. Is that correct?
Lizzie BLANDTHORN: The parties will determine it.
Melina BATH: And once that is determined over the next period of time, will there be any transparency about how that is determined? Who is on it? Any reporting mechanisms? Is that going to be in any way transparent?
Lizzie BLANDTHORN: That will also be determined by the parties.
Melina BATH: Also to be determined, I am assuming, are the terms of reference – the criteria for the terms of reference and whether or not Gellung Warl will be able to write its own terms of reference. One of the most crucial parts to the whole crux of this bill is about Closing the Gap targets and measuring outcomes and making the lives of people better on all of those criteria. There is a new independent panel that is going to be established. What visibility at all will this Parliament and the Victorian population have in terms of that independent organisation or independent review panel?
Lizzie BLANDTHORN: I refer you to my previous answers.
Bev McARTHUR: I am referring to part 21, on the amendment of other acts, specifically clauses 232 to 237, dealing with amendments to the Aboriginal Heritage Act 2006. By transferring appointment and removal powers for members of the Victorian Aboriginal Heritage Council from the minister to the First Peoples’ Assembly, this bill gives the assembly effective influence over registered Aboriginal parties, the same bodies that determine cultural heritage management plans for planning and development proposals. What safeguards exist to ensure the cultural heritage management plan decisions remain impartial and are not politicised or influenced by the assembly’s broader treaty agenda?
Lizzie BLANDTHORN: It is the same answer. It only impacts the appointments.
Bev McARTHUR: Under these amendments can the assembly remove or replace Victorian Aboriginal Heritage Council members at will? Will there be any conflict-of-interest provisions to prevent assembly-aligned RAPs from adjudicating cultural heritage management plans on their own projects or developments? If not, how will fairness be maintained for councils, landholders and developers?
Lizzie BLANDTHORN: As we have said a number of times, the assembly is a democratically elected body. The bill amends the Aboriginal Heritage Act 2006 to provide for the assembly of Gellung Warl to appoint and remove members of the Aboriginal Heritage Council under the act. These appointments are simply currently made by the Minister for Treaty and First Peoples, who will no longer make these appointments following the amendment. The bill also requires the First Peoples’ Assembly to have internal policies and process for how it makes those appointments, including requirements for probity checks, merit-based selection and others. The First Peoples’ Assembly will also be required to have regard to relevant state policies and procedures in making appointments and its community engagement charter. Gellung Warl will not be able to interfere with the heritage council’s operations. It is about the appointments, not the administration of the act.
Georgie CROZIER: If I could just go back to my line of questioning, because I was wanting to continue, section 18 also mentions UNDRIP, so it is not just in the preamble, as you previously have told me. Can you clarify whether or not UNDRIP will be binding?
Lizzie BLANDTHORN: No, it will not be.
Georgie CROZIER: You also said before that the bill will not set up a separate legal system. So how does an Indigenous person self-determine in the Western legal system?
Lizzie BLANDTHORN: You are confusing multiple concepts here. There is clearly the established legal system. Someone will tell me if I am incorrect, but I believe clause 43 sets it within the bounds of existing laws and says that there will be no change to other laws. An example of this – as I have been provided with in advice – is Mabo, which operates within the bounds of existing laws.
Georgie CROZIER: In the Treaty Authority annual report that was tabled today, which I have referenced previously, it says:
Our mandate is also to ensure we uphold two systems of law – Aboriginal and Western.
It goes on to say:
Over the past year, we have been overseeing negotiations between the State and the First Peoples’ Assembly of Victoria, which on 9 September 2025 resulted in a negotiated Statewide Treaty that will initiate a process to deliver broad, long-term reform.
In those negotiations with the state, was it made clear that there would not be two systems of law, as is referenced here and stated that the authority is going to mandate two systems of law?
Lizzie BLANDTHORN: There are not going to be two systems of law, Ms Crozier.
Georgie CROZIER: That was not my question, Minister. I am wondering if you would just answer the question in terms of the negotiations, and was it made clear, as this is not clear in the Treaty Authority report, where they clearly stipulate what their mandate is, and then they go on to talk about the negotiations. Was it discussed and ruled out at that time by the state?
Lizzie BLANDTHORN: This bill is a negotiated outcome of the treaty negotiations, Ms Crozier.
Georgie CROZIER: Minister, you are avoiding the question. It is very simple: did the state, in those negotiations, tell the authority that there would not be two systems of law, that what you have told the chamber is what will happen because the Treaty Authority says that is their mandate? I want to know if the state, through those negotiations, told the authority that that was not to be the case?
Lizzie BLANDTHORN: What is being referred to is about how Gellung Warl operates. Only the Parliament can make laws of the state, Ms Crozier, and I refer you to my previous answers. There is no intention that there be two systems of law. The bill itself is the negotiated outcome of treaty negotiations, and the independent authority is exactly that.
Joe McCRACKEN: I will go to clause 21(3), which permits nomination for – and just to be clear, that particular aspect is about qualification to be a member of the First Peoples’ Assembly, clause 21 there. Clause 21(3) permits nomination while on leave from disqualifying offices. What oversight exists to ensure compliance with that? For example, if someone is a local government councillor, and they resign or they go on leave or whatever, they can nominate to be a member of the assembly. What arrangements around that go towards enforcement and compliance? That is essentially what I am asking.
Lizzie BLANDTHORN: The same oversight bodies and the internal electoral rules.
Joe McCRACKEN: How will disputes about qualification be resolved? Is it internally, is it via the Treaty Authority or through another, perhaps judicial, process?
Lizzie BLANDTHORN: These are also under the same internal rules, but ultimately complaints could be made to VCAT.
Joe McCRACKEN: I will go to clause 22, which is about the term of office of members of the First Peoples’ Assembly of Victoria. Clause 22(1) leaves the term to be specified in the electoral rules. Is there any statutory upper limit to prevent any indefinite tenure?
Lizzie BLANDTHORN: Four years.
Joe McCRACKEN: Sorry, is that a statutory limit?
Lizzie BLANDTHORN: That is my advice.
Joe McCRACKEN: Clause 22(2) states the office becomes vacant at expiry. Does failure to hold a timely election create a hiatus in the assembly’s lawful constitution?
Lizzie BLANDTHORN: Elections need to be conducted in accordance with the electoral rules.
Joe McCRACKEN: Is there provision for continuity of service, effectively holding over until a successor is appointed, as in section 10 of the Public Administration Act 2004?
Lizzie BLANDTHORN: Mr McCracken, it would be determined by the electoral rules, and there are also as a safeguard the dissolution powers that I referred to earlier.
Joe McCRACKEN: I will move on to clause 23, which talks about the suspension of a member of the First Peoples’ Assembly of Victoria. Clause 23(1) allows suspension in accordance with the internal rules. Does natural justice – procedural fairness – apply to such suspensions, and when those decisions are made, who is the decision-maker?
Lizzie BLANDTHORN: Principles of natural justice would apply, Mr McCracken. Ultimately it could be taken to the Treaty Authority and ultimately through core mechanisms.
Joe McCRACKEN: Could a suspended member seek – I will ask a different way. Are there rights of appeal of a decision contained within the authority if the authority is the decision-maker – is that correct?
Lizzie BLANDTHORN: As I just outlined, Mr McCracken, ultimately matters such as you refer to could be taken to the Treaty Authority and could be taken through a court process.
Joe McCRACKEN: Clause 23(2) prohibits the member from performing any functions during suspension. Does this include attending meetings as an observer, or does it only talk about voting rights?
Lizzie BLANDTHORN: It would depend on the established internal rules.
Joe McCRACKEN: In clause 24, which talks about the removal from office, clause 24(1) and (2) authorises removal under the internal rules. Must those rules specify the grounds, whether it is misconduct or incapability, or may removal occur for any particular reason?
Lizzie BLANDTHORN: The bill clearly sets out the key reasons why an assembly member could be suspended, including matters such as misconduct or not performing their role, in line with similar provisions in the Local Government Act. The First Peoples’ Assembly may make rules with additional grounds for suspension or removal. A member can be suspended where an allegation of misconduct or serious misconduct has been made, which will enable the allegation to be investigated. A member may be removed if they have been absent, for example, for four consecutive months without approval, or if they no longer meet qualification requirements – for example, if they have been declared bankrupt – if they are unable to perform their duties or if they have been found to have engaged in serious misconduct.
Joe McCRACKEN: Does removal under this clause, clause 24, extinguish entitlements such as remuneration, leave, pensions and other sorts of benefits that might be acquired in the normal course of that work?
Lizzie BLANDTHORN: That would also be a matter for the internal rules.
Joe McCRACKEN: I will move on to clause 25. Clause 25 requires the assembly to employ a CEO in accordance with the executive employment and remuneration policy. Is the CEO’s appointment terminable at will or subject to any statutory protections?
Lizzie BLANDTHORN: The existing employment law would apply, Mr McCracken, for example, the Fair Work Act 2009.
Joe McCRACKEN: Does the CEO hold office under contract or statute?
Lizzie BLANDTHORN: It would be a normal employment contract, Mr McCracken.
Joe McCRACKEN: Will the CEO be considered a public officer under the Public Administration Act 2004 for integrity and reporting purposes?
Joe McCRACKEN: I am going to go to the next clause, clause 26. Clause 26(1) and (2) mandates development of a remuneration policy. Is this policy subject to approval by the minister, Treasury or any other internal body?
Joe McCRACKEN: Who does approve the policy then?
Lizzie BLANDTHORN: The assembly.
Joe McCRACKEN: Clause 26(3) requires adoption within six months. What occurs if the assembly fails to comply? Is there some sort of default mechanism that automatically sets in place or not?
Lizzie BLANDTHORN: The whole act is obviously subject to the same oversight bodies, Mr McCracken. I refer you to my earlier answers in regard to oversight.
Joe McCRACKEN: Are salary bands expected to align with those of the Victorian public service, or may the assembly set independent executive pay scales that are outside those bounds?
Lizzie BLANDTHORN: To be determined by the assembly, Mr McCracken.
Joe McCRACKEN: Will the policy and remuneration data be publicly disclosed in annual reports, or is that separate?
Lizzie BLANDTHORN: Yes.
Joe McCRACKEN: I will move on to clause 27. Clause 27(a) and (b) make the CEO responsible for day-to-day operations of all three arms of Gellung Warl. How is operational authority delineated when those arms have independent statutory mandates?
Lizzie BLANDTHORN: As I have already outlined for the house, Mr McCracken, it is one statutory authority, one CEO, three arms, and there are obviously provisions which relate to managing conflict of interest, information sharing and information protection within that.
Joe McCRACKEN: No, I understand that, but the point I was trying to make is that you have got one CEO responsible for three different arms. How are those responsibilities delineated, because sometimes there is conflict between those arms?
Lizzie BLANDTHORN: I refer you to my previous answer, Mr McCracken.
Joe McCRACKEN: Clause 27(c) refers to other functions specified in this act or internal rules. Could internal rules expand the CEO’s authority beyond what Parliament might intend?
Joe McCRACKEN: Is there any statutory requirement for the CEO to act independently or under direction of the assembly’s chairperson?
Lizzie BLANDTHORN: The bill sets out the authority of the assembly, the authority of the CEO and how they relate with each other.
Joe McCRACKEN: The question I asked was: is there a statutory requirement for the CEO to act independently or under direction of the assembly chairperson?
Lizzie BLANDTHORN: It is neither of those, Mr McCracken. I refer you to my previous answer.
Joe McCRACKEN: Clause 28, which is about staff and contractors, authorises employment engagement ‘as required’. Are these employees subject to the Victorian public sector employment conditions such as superannuation, code of conduct – all those sorts of things?
Lizzie BLANDTHORN: I refer you to my previous answer, Mr McCracken.
Joe McCRACKEN: Will contractors be bound by the same confidentiality and conflict of interest provisions as staff members?
Lizzie BLANDTHORN: Yes.
Joe McCRACKEN: Does this power extend to engagement of political consultants or lobbyists using public funds?
Lizzie BLANDTHORN: It is only relevant to the functions of Gellung Warl.
Joe McCRACKEN: What if they engage a lobbyist or a political consultant using public funds? Is that still subject or not?
Lizzie BLANDTHORN: This act does not in any way, Mr McCracken, change anything in relation to laws around government lobbyists or lobbyists generally, if that is what you are referring to.
Joe McCRACKEN: I will go to clause 29. Clause 29(1) permits delegation to staff by instrument. Must such delegations be in writing and retained for audit purposes?
Lizzie BLANDTHORN: Yes.
Joe McCRACKEN: Clause 29(2) restricts delegation to staff associated with particular arms of Gellung Warl. How will compliance with these limits be verified?
Lizzie BLANDTHORN: I refer you to my previous answers in relation to oversight.
Joe McCRACKEN: Can delegated power include financial authorisations and contracting authority, and if so, who monitors expenditure thresholds?
Lizzie BLANDTHORN: Again, I refer you to my earlier answers in relation to financial accountability.
Joe McCRACKEN: Could an unlawful delegation under this clause give rise to personal liability for the CEO?
Lizzie BLANDTHORN: Yes.
Bev McARTHUR: Minister, just in response to a previous answer to me, I refer back to clause 66, which clearly says the MP must table the statement of treaty compatibility. Can you clarify, Minister, what you meant by saying the statement is optional?
Lizzie BLANDTHORN: Mrs McArthur, I was referring to clause 68, ‘No effect on Victorian law’. This provision provides certainty about the effect of noncompliance with representation procedures to ensure parliamentary sovereignty is maintained. You can also see clause 7, which makes it clear that the bill does not limit the powers, privileges and immunities of the Parliament or each house of Parliament and their members and committees, including any joint committees of both houses, and clause 75, which provides that nothing in the bill impacts Parliament’s ability to conduct its business. Gellung Warl has no power of veto in relation to Parliament.
Sitting suspended 6:29 pm until 7:31 pm.
David DAVIS: I have a few questions. I have listened to a large part of the proceedings today. Members have asked I think very pertinent questions. Mr McCracken asked some questions about referendums at one point, but I want to go back and understand why the state government as a preliminary did not believe it was necessary to consult the Victorian people regarding these proposals?
Lizzie BLANDTHORN: Treaty has been more than a decade in the making. It is something that has been part of this government’s commitment across two state elections. There has been broad consultation across the community over many years, beginning, as I outlined in my second-reading contribution yesterday, with Minister Hutchins meeting literally around kitchen tables and opportunities for discussion in many forums right across our state through to being part of our commitment across more than a decade of public consultation and at least two elections. It has been well traversed with the community, in particular with First Peoples but with the whole of the Victorian community, and it is something this government has been on the record as being proud to support for a very long time.
David DAVIS: I think we will just have to agree to disagree about this, but I just note on the record that I do not believe most Victorians understand this treaty. I do not believe most Victorians understand the details of it. They do not understand the ramifications of it. After the Voice referendum, where just under 55 per cent voted against the Voice, I would have thought the government would have reconsidered at that point that it was important to have a proper process of consultation, given the decisive position adopted by the Victorian community. Did the government reconsider at that time?
Lizzie BLANDTHORN: I cannot speak to the national process around the referendum. That was an entirely different process. It is outside of the scope of this bill, and I do not intend to entertain the question.
David DAVIS: You arrogantly refuse to answer that, but the fact is you were aware of the referendum result and the government chose to proceed nonetheless. I do think that it is a major problem that there was not sufficient consultation for most Victorians to have a deep understanding of this, and I do not believe they do. I will leave that as a comment.
The DEPUTY PRESIDENT: Sorry, Mr Davis, the minister has a right to respond to the comment.
Lizzie BLANDTHORN: As I said, the referendum was a national process. It was entirely outside of the remit of the bill that we have before us today. The bill that we have before us today has been widely consulted on. This government has gone to at least two elections with a commitment to treaty and has been re-elected overwhelmingly, as I think your side can feel on those benches. I would caution you on such outlandish statements. This is a representative democracy. It is a representative government, a government that took treaty to two election, and that is why we are here today. It has absolutely nothing to do with what you refer to, which is outside the scope of this bill.
David DAVIS: With respect, we will just have to agree to disagree on that. There are a number of points I want to make. Ms Crozier talked at length in conversation with you about the United Nations agreements that are mentioned in this, and you indicated that they are not binding, is that correct? Is my understanding of that correct?
Lizzie BLANDTHORN: I refer to my earlier answers.
David DAVIS: So it is not binding?
Lizzie BLANDTHORN: I refer to my earlier answers.
David DAVIS: It is not binding.
Lizzie BLANDTHORN: I have answered your question, Mr Davis.
David DAVIS: A non-answer is an answer too. I want to ask you also about the interplay with Commonwealth legislation. Has the government considered whether the Racial Discrimination Act 1975, which is 50 years old – maybe even today, or around this time – is consistent with this bill?
Lizzie BLANDTHORN: Yes.
David DAVIS: Section 31 has a substantive rule-making power in it. It has certainly been put to me by a number of lawyers that it is not consistent and that there may well be areas of significant inconsistencies depending on the rules that are made. Is that your understanding?
Lizzie BLANDTHORN: The government’s advice is that it is consistent.
David DAVIS: Did the government seek formal legal advice on this matter?
Lizzie BLANDTHORN: The government has solicitor-general advice, and our view is that it is consistent.
David DAVIS: Will you make that advice available to the committee and the community?
Lizzie BLANDTHORN: I refer to my answers earlier today.
David DAVIS: Will you make it available to the community with respect to section 31 of the bill?
Lizzie BLANDTHORN: Again I refer to my answers of earlier today.
David DAVIS: Did you accept any legal advice from an external source other than the solicitor-general’s office?
Lizzie BLANDTHORN: We have the treaty council, which is led by the solicitor-general.
David DAVIS: Was there any further KC advice or similar received externally?
Lizzie BLANDTHORN: I refer to my previous answers.
David DAVIS: Did the government expend any money on external consultants on legal advice about consistency with the Commonwealth act?
Lizzie BLANDTHORN: Yes.
David DAVIS: How much?
Lizzie BLANDTHORN: The Department of Premier and Cabinet (DPC) annual report would record such matters.
David DAVIS: Who was that from?
Lizzie BLANDTHORN: As I said earlier, Mr Davis, the treaty council, which is led by a number of different barristers.
David DAVIS: So there is no external consultancy advice. Is that what you are saying?
Lizzie BLANDTHORN: I will refer you to my previous answers.
David DAVIS: Again, how much was expended?
Lizzie BLANDTHORN: I again refer you to my previous answers.
David DAVIS: What was your previous answer as to how much is expended?
Lizzie BLANDTHORN: You can check Hansard, Mr Davis, but I informed you that it would be reported in the DPC annual reporting.
David DAVIS: I am asking you now. How much?
Lizzie BLANDTHORN: I do not have that available to me right now, Mr Davis. It will be reported in the usual way.
David DAVIS: I understand you said it was available in the annual report, but I would have thought you would have that available for a discussion of this nature. I want to talk about the important principles of parliamentary sovereignty and the control over public expenditure. This bill changes that longstanding arrangement that has been part of our system certainly since the establishment of this jurisdiction but long before. Why did the government decide to lock in allocations and increases into the future? Why was that done?
Lizzie BLANDTHORN: Mr Davis, again I will refer you to my earlier answers about the appropriations and obviously the ongoing appropriation, and of course we want to ensure that there is financial certainty for Gellung Warl.
David DAVIS: So it is just simply about financial certainty, is it?
Lizzie BLANDTHORN: Yes, Mr Davis, it is about financial certainty. But you can rest assured it is also reviewed every four years.
David DAVIS: But actually that is not the case in this bill, is it? It actually goes on beyond the four years.
Lizzie BLANDTHORN: Ongoing funding has been provided for, but as I have informed you, there will be regular reviews of that.
David DAVIS: I put to you that there are many institutions that would like funding security of this type into the future, whereas the tradition in our system is that each year budget bids are put in and the arrangements are put forward in a way where they are subject to change in the next financial year. I am still not understanding why this institution would receive different treatment than a major hospital, for example – the Alfred, St Vincent’s – or a university. Why is this being differentiated from other important institutions that we would fund?
Lizzie BLANDTHORN: Mr Davis, a number of statutory authorities and entities across government receive ongoing funding. Of course it is regularly reviewed by virtue of –
David Davis interjected.
Lizzie BLANDTHORN: Mr Davis, if I can answer the question without interruption, that would be appreciated, please. Ongoing funding is provided for here, and it is provided for in many other institutions across government. There is no special treatment here, if that is what you are trying to insinuate. It is ongoing funding open to regular review, in the same way that is for other institutions as well.
David DAVIS: With respect, Minister, that is not true. This is different from other funding. It is locked in legislation, and there is an escalation clause in there. It will be $2.7 billion – just shy of – over four years, or over 10 years in expenditure if it goes forward in the way it is put without any additional funding. It is actually not the same as other institutions that are funded through the state budget. I think you are wrong on that, and I think you should confess that you are wrong.
Lizzie BLANDTHORN: Mr Davis, you are putting words in my mouth. I did not say that the terms of this funding were the same as that of every other agency. But what I did say was that there are many agencies across government that do receive ongoing funding and that in –
David Davis interjected.
Lizzie BLANDTHORN: Deputy President, it is very difficult to answer Mr Davis’s questions for him.
The DEPUTY PRESIDENT: Mr Davis, if you can let the minister answer, please.
Lizzie BLANDTHORN: There are many agencies across government that receive ongoing funding subject to regular review, and that is what is happening here.
David DAVIS: With respect, Minister, it is not the same, and we may just have to agree to –
Lizzie Blandthorn: I did not say it was exactly the same.
David DAVIS: Well, you did imply that it is exactly the same, and it is not. It is very different. The truth of the matter is other institutions can have their funding altered each and every year, whereas this institution appears to be immune from that and a special arrangement has been struck. You can respond to that, or we will just move on in the sense we have a different view.
Lizzie BLANDTHORN: I will refer you to my earlier answers, Mr Davis.
David DAVIS: In terms of performance accountability, will there be budget output measures for this organisation in the normal way that are put into budget paper 3 (BP3), traditionally, but now the performance budget paper?
Lizzie BLANDTHORN: Given that the bill is yet to pass, Mr Davis, a decision on the BP3 reporting has not yet been made.
David DAVIS: So are you able to give a commitment that the expenditure of public money will be reported in a way that has clear output measures and that they are put into the standard budget so that they can be seen by all Victorians, they can be questioned in the Public Accounts and Estimates Committee, they can be questioned in this chamber – or will this be a special arrangement where there are no budget output measures?
Lizzie BLANDTHORN: I refer you to my earlier answers in regard to financial accountability, Mr Davis.
David DAVIS: The minister is unable to give an assurance that there will be budget output measures. Is that correct?
Lizzie BLANDTHORN: As I said, Mr Davis, I appreciate you have come into the chamber late in this conversation today, but I refer you to the extensive answers I have already provided the house in relation to financial management. I will add to that that the minister can be questioned at PAEC, obviously, and further to that, I refer you to the previous answers I have already given in relation to financial accountability.
David DAVIS: But the minister is not responsible here in this case directly, and that is made clear in the legislation. That is correct, isn’t it?
Lizzie BLANDTHORN: I refer you to my earlier answers, Mr Davis.
David DAVIS: I can see we are going to have a few moments here. I want to talk about the independence and oversight of the integrity bodies. I am deeply concerned about aspects of this bill and how they will interact with the integrity bodies. How do you assure that bodies like IBAC – and I will pick that as an example, but this could apply to the Auditor-General, the FOI commissioner, the Ombudsman and so forth; let us just stick with the example of IBAC. IBAC will be required to strike certain arrangements about certain cultural matters with this new set of bodies that has been established, and IBAC will not be required to report in precisely the normal way. That is correct, isn’t it?
Lizzie BLANDTHORN: That is incorrect, Mr Davis, and again, I refer you to my earlier answer.
David DAVIS: How will we guard against the use of cultural safety negotiations as a lever against IBAC?
Lizzie BLANDTHORN: Again, Mr Davis, I have already taken the house at length through the provisions that apply in relation to the integrity agencies, and I refer you to earlier answers that I have provided on each of those in relation to FOI, in relation to the Ombudsman, in relation to IBAC. In particular the cultural safety guidelines are not binding on IBAC, but I certainly do not intend to keep repeating every answer I have already provided the house over extensive hours today. I will continue to refer you to my earlier answer if you have not been here to participate in those discussions.
David DAVIS: I heard most of the debate earlier. This question, I do not believe, was specifically asked about how the cultural safety guidelines can be used as a lever or a bludgeon against the Independent Broad-based Anti-corruption Commission. How will we guard against the misuse of those cultural safety provisions?
Lizzie BLANDTHORN: I said it earlier today, Mr Davis. I said it again now. The cultural safety guidelines are not binding on IBAC.
David DAVIS: With respect, that does not answer the question. They can still be misused and used as a lever to beat IBAC around the ears. I just want to understand how you are intending to protect IBAC from that.
Lizzie BLANDTHORN: Again, Mr Davis, I said it earlier today; I have said it again now, but the bill does not in any way impact on the independence of IBAC.
David DAVIS: With respect, Minister, that is not true, because the cultural safety arrangements do actually change the balance of power between this organisation and IBAC, unlike other organisations. The use of those cultural safety mechanisms and discussions could be misused, if I can put it directly, by people who wish to protect themselves from investigation. What mechanisms are there to stop that occurring?
Lizzie BLANDTHORN: Again, Mr Davis, the cultural safety guidelines are non-binding on IBAC and the bill says that it does not impact the independence of IBAC. I refer you to my earlier evidence.
David DAVIS: But with respect, your earlier evidence did not deal with this exact aspect of the misuse of the cultural safety powers as a lever against IBAC. Let me put a scenario to you that you have one or two corrupt individuals – we have them all around our society and we have some at the CFMEU and elsewhere at the moment – at these new bodies that are being established. They could use these cultural safety powers as leverage against IBAC. What would stop a corrupt official doing that?
Lizzie BLANDTHORN: Mr Davis, I will say it one more time and then I will continue to refer you to my earlier evidence. The bill says that it does not impact on the independence of IBAC.
David DAVIS: The bill may well say that, but that is not how the real world works. In fact the cultural safety mechanisms can be used as leverage to bully IBAC or another independent agency.
Lizzie BLANDTHORN: Mr Davis, clause 263 inserts a new section 15A into the Independent Broad-based Anti-corruption Commission Act to require the IBAC to establish cultural safety guidelines and procedures for how the IBAC exercises its powers and platform functions in relation to Gellung Warl and Gellung Warl public offices. The guidelines must be established in consultation with the First Peoples’ Assembly, and the Treaty Authority may provide advice if requested by the IBAC. The purpose of the guidelines and procedures is to support the organisational development and practice of cultural safety and cultural competency so that IBAC is equipped to provide oversight in relation to Gellung Warl that is appropriate to its character as the First Peoples-led statutory corporation with unique cultural responsibilities and governance practices.
David DAVIS: I have read that, too, Minister, but none of that assures me. It in fact leads me to the opposite conclusion, that in fact IBAC must and is going to have to consult on that. I do not think that is surprising, but actually it does provide leverage back in the other direction for these new bodies. You may want to disagree with that, but I think that is the truth of the matter and I will put on record that I am very concerned about how this will operate with our independent agencies. I do not want to see a body that is able to strike back at an independent agency.
Lizzie BLANDTHORN: The cultural safety guidelines are not binding on IBAC, and the bill explicitly says that it does not impact on the independence of IBAC.
David DAVIS: It says that, but we will not go over this ground any further. On the exercise of public power without democratic accountability, I am concerned that this body will have a very significant suite of powers and it is not democratically accountable to the Victorian community – it is to a small subset of the Victorian community, and it obviously deals with its electoral base and its voting mechanisms and so forth, but this is a fundamental break with our Westminster principle that all executive power has got to be exercised under ministerial responsibility to Parliament. This body has powers that will not be amenable to control by Parliament. Is that correct?
Lizzie BLANDTHORN: Gellung Warl does not change the tenets of the Westminster system in Victoria, and it operates within that existing framework. Parliament remains sovereign over Gellung Warl and its enabling legislation, and standard accountability and oversight frameworks apply to Gellung Warl to ensure it operates within existing norms of good government and democratic principles. Gellung Warl is ultimately subordinate and accountable to Parliament. Indeed, Mr Davis, RMIT professor of law Kate Galloway AM recently described the bill and the architecture of Gellung Warl as:
… constitutionally respectful, offering a model for how Indigenous institutions can be embedded within a Westminster framework without disrupting its foundational principles.
Kate Galloway AM further noted that:
Its role is advisory, consultative, and educative, consistent with the principles of responsible government and parliamentary sovereignty.
David DAVIS: With respect, I am not being negative about that obviously eminent person, but I do not think they understand how the Westminster system works, and it is very clear indeed that the minister will not have the accountability that they have as the usual position in the Westminster system. But I will just, again, leave that for the moment. If you want to say more, please do.
Lizzie BLANDTHORN: Yes, I do, thank you, Mr Davis. If you are going to make a statement, I am going to respond. As I said, it will be accountable to all Victorians as the minister administers the act, and Parliament can also change the act at any time as well.
David DAVIS: We will again have to agree to disagree. Under section 52 the use of voluntary standards allows cultural safety guidelines to become legally enforceable through contractual arrangements, and this was discussed earlier at several points in the discussion. Section 50 permits guidelines to be issued without defined criteria. This potentially creates a system where businesses and organisations face compliance requirements that lack objective standards. It is true that organisations do not have to sign up to these points, but once they do sign up, it is correct that they are legally enforceable. My understanding is correct on that, I think.
Lizzie BLANDTHORN: As you indicated, Mr Davis, this was discussed earlier, but what you have just put now is not correct. I refer you to my earlier answers.
David DAVIS: In which way is it not correct?
Lizzie BLANDTHORN: I refer you to my earlier answers, Mr Davis.
David DAVIS: I thought I had carefully phrased it in a way that was slightly different to the earlier points, but if you do not want to answer, that is okay too. I want to talk about the legal certainty and the rule of law issues. There is what I would call the subjective standards without objective criteria issue. The bill repeatedly relies on subjective standards – ‘good faith’ in section 6, ‘unreasonable’ throughout various provisions, ‘culturally sensitive information’ in section 4 – without providing clear, precise definitions, if you will. Section 99 allows for consideration of such other matters, if any, as they think fit, while internal rules can define what constitutes culturally sensitive information. Again, I know some of this was discussed earlier, but I just want to be very clear that those phrases and words are not defined in the act, and in that sense they may well be subjective.
Lizzie BLANDTHORN: They are common terms, Mr Davis, in legislation that are interpreted by the courts on a regular basis, and the legislation itself is not meant to be overly prescriptive, but these are common terms regularly used across a range of pieces of legislation in a range of areas, and the courts are well equipped to interpret them as appropriate.
David DAVIS: I do not want to labour this, but there are a couple of points I do want to make. I am very concerned, Minister, about the ability of the new bodies to call up departments, agencies and ministers. Would you explain what criteria they would do that on?
Lizzie BLANDTHORN: As I have said a number of times, these are non-binding, not coercive powers. But of course, in being able to fulfil its functions, Gellung Warl can engage in a number of ways at times with government, government departments and ministers in order to fulfil its functions. Are you referring specifically to the annual reporting or just generally?
David DAVIS: A particular agency, whatever – it could be the Department of Education. The bodies collectively or singularly can seek engagement, but if the agency rejects that, what steps can they take?
Lizzie BLANDTHORN: As I have said, they are non-binding, non-coercive powers, Mr Davis.
David DAVIS: So there will be no capacity to compel any person to attend under any circumstances?
Lizzie BLANDTHORN: I refer you to my earlier evidence, Mr Davis.
David DAVIS: So that is a yes or a no? I do not recall that being asked in that way.
Lizzie BLANDTHORN: These are good-faith principles, and there can be no compulsion. They are non-coercive and non-binding, and I have answered it in a number of ways in response to a number of questions so far today, Mr Davis.
David DAVIS: It is not the way when I read it that I see it. I am heartened to hear that nobody can be compelled to attend. Documents – can these bodies demand documents be provided? Can they strongarm – if I am going to use a word – an agency to provide documents?
Lizzie BLANDTHORN: As per my earlier evidence, Mr Davis, there is no compulsion, but the state would act in and would be expected to act in accordance with the principles of good faith.
David DAVIS: And what would prevent these new bodies acting with bad faith and actually entering the political fray in a party-political way? What would stop them doing that?
Lizzie BLANDTHORN: They also have to act in good faith, Mr Davis.
David DAVIS: So could they endorse one political party for an election?
Lizzie BLANDTHORN: Mr Davis, it is a very provocative question. What we are talking about here are commonly understood principles of good faith that will apply to all of the parties, including the responsibility to act reasonably and in accordance with those principles.
David DAVIS: I think by your non-answer we have established that they could act in a highly party-political way. They could endorse one candidate or one party for an election. That would be one point. Will political parties be empowered to run candidates for these elections?
A member interjected.
David DAVIS: No, it is relevant. It is a huge power – and resources. It is deeply relevant.
Lizzie BLANDTHORN: It would not be in good faith, Mr Davis.
David DAVIS: Why is that? Why could the body not pass a resolution to say, ‘We will support X party, and every Indigenous person should vote against Y party’?
Lizzie BLANDTHORN: Mr Davis, I refer you to my earlier answers in relation to principles of good faith as they would be commonly interpreted by the courts.
David DAVIS: They may well regard it as good faith to say, ‘We think this party is better and that party is not as good.’ Why would that be bad faith?
Lizzie BLANDTHORN: Mr Davis, I refer you to my earlier answers.
David DAVIS: I do not believe you answered that directly previously, I am sorry – at least I did not hear it. I will go back and check.
In terms of the ability to engage with a particular agency – I am a former health minister; let me give you an example. The health department has agreements with the Commonwealth. Would these bodies be empowered to look at the arrangements that have been signed with the Commonwealth?
Yes, is the answer.
Lizzie BLANDTHORN: Firstly, Mr Davis, I would appreciate it if you did not interpret the advisers box yourself, because the advisers and I were talking briefly about an unrelated matter as well. It is not appropriate for you to take an interaction at the advisers box and turn it into what you perceive to be the answer.
The answer to your question is that Gellung Warl can provide advice to the state of Victoria and its entities and so forth. It cannot provide it to another jurisdiction. In relation to a bilateral agreement, it could provide the state with advice, but it would be simply that – and it cannot obviously impact an agreement between the state of Victoria and the Commonwealth or other jurisdictions.
David DAVIS: So the answer is yes, it can actually look at a bilateral agreement between the state and the Commonwealth or indeed another jurisdiction. There is nothing to stop that. I predict firmly that it will – and quickly – get into this, because there is obviously significant money involved, and the agencies, the new bodies, will quickly begin to look at a number of these points. You may disagree, but that is my humble view – it is a completely clear way for them. It could be a joint agreement between the Commonwealth and Victoria – funding for education, funding for health, funding for transport. They could look at the Suburban Rail Loop, for example, couldn’t they?
Lizzie BLANDTHORN: As I indicated, Mr Davis, Gellung Warl could provide advice to the state and provide that contribution. Indeed ACCOs already do do that in a number of ways. For example, aged care is funded by the Commonwealth and they advocate to Victorian ministers to get outcomes in order to close the gap. Across my portfolios there would be numerous ways in which First Peoples make contributions to those processes as well, including through education ministers, who now are directly represented at the table, or indeed tomorrow at our community services ministers meeting, where we have a shared decision-making part to that meeting. So there are numerous ways in which First People already provide contributions into state and federal processes, but at the same time what this act will provide for is the capacity for Gellung Warl to provide direct advice to the state government on matters that affect them.
David DAVIS: So the truth is that yes was the answer. Those matters can be investigated. There can be a document sought, there can be hearings held and there can be a whole series of steps taken by these new agencies. The same is true of councils, isn’t it, Minister? The activities of councils are squarely in the gun on this too. There are agreements between councils and state governments on funding for any manner of programs and capital items too, and the bodies could well start to take a special interest in those agreements between state government and councils. Is that correct?
Lizzie BLANDTHORN: Mr Davis, as I have said a number of times, Gellung Warl can provide advice on any matters that affect them to the state government.
David DAVIS: I think the answer is yes, but we do not want to quite say yes. I ask about another point: could Gellung Warl strike a deal with particular councils to add additional levies and arrangements to the rates?
Lizzie BLANDTHORN: Mr Davis, Gellung Warl will not be able to exercise statutory advisory functions and powers in relation to local government. Gellung Warl will be able to continue to conduct the usual and general engagement with local councils as the assembly currently conducts those matters as they relate to them. Indeed if matters relating to local government are raised through the exercise of Gellung Warl’s advisory powers, which I have spoken to, then they also may be directed to the relevant minister, which I have also spoken to earlier today.
David DAVIS: So the answer again is, yes, they can impact on a number of those council matters. But let us ask specifically about that. Could the organisation strike an arrangement with a local council for a special levy to be imposed on rates notices?
Lizzie BLANDTHORN: As I have said, Mr Davis, Gellung Warl will not be able to exercise its statutory advisory functions and powers in relation to local government. Gellung Warl will be able to continue to conduct the usual and general engagement with local councils that the assembly currently conducts.
David DAVIS: Will the body be in a position, Minister, to seek to advise groups like councils on reparations?
Lizzie BLANDTHORN: I refer you to my earlier answers, Mr Davis, and I would simply remind you and the house that this is about a new relationship between the state government and First Peoples through the democratically elected Gellung Warl.
David DAVIS: But, with respect, what you have not done is to say that is not possible. So I think we can interpret it as possible that they could advise a local council that it would be a good thing to strike a special rate for a reparation purpose. They might be a northern suburban council. There might be an interest in taking some steps in that direction, and this body could well play a role in seeing a special rate struck. That is correct, isn’t it?
Lizzie BLANDTHORN: Please do not put words in my mouth, Mr Davis. You asked the question; I have answered it, and I have also referred you to earlier evidence I have given today. It is not, therefore, your role to come here and say what the bill does and does not do. This is quite disingenuous. The purpose of the bill is to improve outcomes, to help close the gap. I again refer you to the earlier evidence that already answers these questions that you are putting from earlier today. I appreciate you were not here, but perhaps you would like to consider Hansard.
David DAVIS: I am just going to put on record that the minister will not rule out this body playing a significant role in encouraging a council to put on a special rate which could be used for the purpose of a reparation. That is a fact.
The DEPUTY PRESIDENT: Minister, did you want to respond?
Lizzie BLANDTHORN: Only to suggest that Mr Davis is putting words in my mouth. I would ask that Mr Davis not do that, and I would suggest that if Mr Davis is going to come in here at the very end of the day and repeat all of the questions that have been considered earlier in the day, that he might have had the courtesy to read Hansard first.
David DAVIS: I did not hear that question earlier, and I certainly do not believe exactly that question was asked. Some earlier points certainly informed my thoughts on this, but those were specific questions. It could be a particular council, and I think it is very instructive that the minister will not rule that matter out.
Richard WELCH: I would like to ask some questions about the infrastructure fund. Is it governed by a written mandate?
Lizzie BLANDTHORN: In relation to the infrastructure program and it being transferred to Gellung Warl, it is the view of the government that Gellung Warl is best placed to hold and disperse funding for First Peoples programs, as it will hold the relevant expertise. This will enable efficiencies to be gained through greater self-determining control and oversight of government First Peoples programs and services. Transfer of the Aboriginal community infrastructure program to Gellung Warl advances the government’s commitment to enabling self-determination as outlined in the Victorian Aboriginal Affairs Framework and clearly demonstrates the practical outcomes of statewide treaty to both First Peoples and the broader Victorian community. ACIP will be superseded by a First Peoples infrastructure fund established and operated by Gellung Warl.
Richard WELCH: So there is no written mandate?
Lizzie BLANDTHORN: If you were able to clarify what you mean by that, that would be appreciated.
Richard WELCH: To clarify: even with the greatest experts in the world running it at the highest professional levels, no fund of this nature operates without a written mandate – which is what you can invest in, what you cannot invest in, the instruments in which you can apply. That is called the mandate.
Lizzie BLANDTHORN: I have been advised the assembly does have such relevant experience, as acquired through running things such as the Self-Determination Fund, for example, and the necessary parameters will be put in place to provide for that.
Richard WELCH: So at this point we are allocating over $2 billion to a scheme that has no mandate – that is, a mandate to be determined?
Lizzie BLANDTHORN: The current guidelines will be used and adopted by Gellung Warl.
Richard WELCH: So the mandate will be set by the First Peoples’ Assembly?
Lizzie BLANDTHORN: I refer you to my earlier answer, Mr Welch.
Richard WELCH: I have not asked that question before.
Lizzie BLANDTHORN: Yes.
Richard WELCH: Who can amend the mandate?
Lizzie BLANDTHORN: The assembly, in accordance with the act, Mr Welch.
Richard WELCH: So is there anywhere within the act that actually puts any constraint onto what that mandate allows?
Lizzie BLANDTHORN: We cannot be that prescriptive in the act, Mr Welch, but it will occur.
Richard WELCH: That is extraordinarily concerning. That is unprecedented. I am blown away, frankly. I am at a loss for words. Who operates the fund? And to clarify on that, would there be an investment committee? What will be the governance structure?
Lizzie BLANDTHORN: It will be in the treaty that the parties agree that Gellung Warl will establish and operate a new First Peoples’ Infrastructure Fund from 1 July 2026 onwards. Gellung Warl will operate the infrastructure fund to support Aboriginal community controlled organisations as defined under the National Agreement on Closing the Gap with maintenance, minor building works, capital works, infrastructure upgrades and related project planning. The infrastructure fund will be administered in accordance with guidelines developed by the First Peoples’ Assembly of Victoria in line with its larbargirrar gnuurtak tulkuuk – community answerability principles – and best practice financial management principles. The infrastructure fund will supersede the state’s Aboriginal community infrastructure program, ACIP. From 1 July 2026 the state will no longer offer new grants under the ACIP, and access to funding from the infrastructure fund will not impact the eligibility of ACCOs and other First Peoples’ organisations to seek funding under other Victorian government infrastructure grant programs.
Richard WELCH: I saw there was a thread of governance in there. If it is operating under best practice, there will be certain architecture put around it for people, committees et cetera. Who will pay for those people? Does that come from the from the existing budget or is that funded externally?
Lizzie BLANDTHORN: From the appropriation, Mr Welch.
Richard WELCH: Can the infrastructure fund enter into commercial contracts?
Lizzie BLANDTHORN: Mr Welch, could you please provide some clarity in terms of what types of commercial contracts you might be suggesting?
Richard WELCH: Any whatsoever.
Lizzie BLANDTHORN: In relation to an ACCO, funding would be provided under an agreement, obviously a contract.
Richard WELCH: Given that it is entering into commercial contracts and presumably projects as well, can the infrastructure organisation enter into any exercise of lending, leveraging or collateral arrangements?
Lizzie BLANDTHORN: They provide grants, Mr Welch. They do not lend money.
Richard WELCH: They provide grants. Would the fund be eligible to receive additional funding from sources other than the allocation?
Lizzie BLANDTHORN: Yes.
Richard WELCH: Actually that is all I have got on that, because Mr Davis has asked a couple of those, so I will not repeat. Can I ask whether the various bodies under the treaty umbrella will have communication and PR roles in their departments?
Lizzie BLANDTHORN: That would be a matter for those parts of the organisation to determine.
Richard WELCH: Can any of the organisations under the treaty umbrella receive further funding from non-government sources?
Lizzie BLANDTHORN: Gellung Warl can receive philanthropic funding, Mr Welch.
Bev McARTHUR: Minister, will this body be subject to normal council rates?
Lizzie BLANDTHORN: There is nothing in the bill that exempts that, Mrs McArthur.
Bev McARTHUR: Would the body be exempt from payroll tax, land tax or any other taxes that apply to any individuals or businesses?
Lizzie BLANDTHORN: It will be exempt from payroll tax.
Bev McARTHUR: Minister, any other taxes – land tax, windfall gains tax?
Lizzie BLANDTHORN: As is the case for other statutory entities who can also be exempt, it will be exempt from land tax and payroll tax.
Bev McARTHUR: Clause 77 allows for what are called representation meetings, meaning the First Peoples’ Assembly can require up to two meetings a year with cabinet to make representations to the cabinet about matters affecting First Peoples. Which other organisations in Victoria have the power to require two meetings a year with cabinet to discuss their grievances?
Lizzie BLANDTHORN: That is outside of the scope of this bill, Mrs McArthur.
Bev McARTHUR: Minister, this is discriminating against other people, isn’t it? If one organisation can demand meetings of cabinet but nobody else in Victoria can, isn’t that discriminatory?
Lizzie BLANDTHORN: Mrs McArthur, this is a bill that is about resetting the relationship between First Peoples and the state of Victoria, and it is about ensuring that Aboriginal voices have an opportunity for self-determination through Gellung Warl and the capacity to then provide that advice through to government, and cabinet is an important part of providing that advice to government.
Bev McARTHUR: Why is the Chief Commissioner of Police being singled out for special attention in this bill? Who else gets to demand legislated meetings with the police commissioner?
Lizzie BLANDTHORN: Again, Mrs McArthur, I will refer you to my previous answers around the fact that this is about resetting the relationship between the state of Victoria and First Peoples. This will be a democratically elected body with the responsibility for self-determination and providing advice on how institutions, systems and programs can work for Aboriginal people in the way that best suits them and providing that advice to the whole of government, which obviously includes the Chief Commissioner of Police. He is not special. It also includes secretaries as heads of departments, and he is the head of the police.
Bev McARTHUR: Minister, is the police commissioner compelled to attend these meetings?
Bev McARTHUR: Under clause 79, these meetings get cabinet confidentiality – why the secrecy?
Lizzie BLANDTHORN: If it is a cabinet meeting, Mrs McArthur, it receives cabinet confidentiality.
Bev McARTHUR: But this is between the group plus other individuals or the police commissioner. Why is there such secrecy attached to the meetings? Can they not be reported? Can we apply for the information under FOI?
Lizzie BLANDTHORN: As I said, Mrs McArthur, and perhaps to expand if it is not clear, it is because they are meetings of cabinet, and it is only meetings of cabinet that receive cabinet confidentiality.
Bev McARTHUR: Minister, if a meeting is held between the group and the police commissioner, this section also specifically provides an exemption from freedom-of-information laws – why the lack of transparency in that instance?
Lizzie BLANDTHORN: We have discussed freedom of information extensively earlier today, and I will refer you to my earlier answers.
Bev McARTHUR: In part 9 section 107 says the body can request a minister or an agency head or an agency give them any information or any document they believe is relevant to their inquiries. What happens if they refuse?
Lizzie BLANDTHORN: As I have said, there are no coercive powers.
Bev McARTHUR: What are the boundaries here, though? Can they demand protected or cabinet documents? What about budget-related documents? Can they ask for those?
Lizzie BLANDTHORN: As I indicated, there are no coercive powers or compulsion powers.
Bev McARTHUR: Section 108 says they may request the attendance of a minister or an agency head for an interview to answer questions for the inquiry. Is a minister compelled to attend the inquiry?
Lizzie BLANDTHORN: You answered your own question. You said they can request, and the answer to your question is no.
Bev McARTHUR: Clause 182 allows the Treaty Authority to dissolve the assembly. Why is this power not vested in Parliament?
Lizzie BLANDTHORN: We have been through already today the powers in relation to dissolution. I would refer you to my earlier answers.
Bev McARTHUR: Last question. Why does the bill repeal substantial sections of the Advancing the Treaty Process with Aboriginal Victorians Act 2018 and the Treaty Authority and Other Treaty Elements Act 2022 instead of amending them incrementally?
Lizzie BLANDTHORN: Those acts were the beginning of treaty, It is to ensure that the settings are current.
Bev McARTHUR: Do these amendments transfer assets or liabilities from previous bodies to Gellung Warl without audit or valuation?
Clause agreed to; clauses 2 to 299 agreed to; schedules 1 to 4 agreed to; preamble agreed to.
Reported to house without amendment.
Lizzie BLANDTHORN (Western Metropolitan – Minister for Children, Minister for Disability) (20:40): I move:
That the report be now adopted.
Motion agreed to.
Report adopted.
Third reading
Lizzie BLANDTHORN (Western Metropolitan – Minister for Children, Minister for Disability) (20:40): I move:
That the bill be now read a third time and do pass.
Council divided on motion:
Ayes (21): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Anasina Gray-Barberio, Shaun Leane, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt
Noes (16): Melina Bath, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Evan Mulholland, Rikkie-Lee Tyrrell, Richard Welch
Motion agreed to.
Read third time.
The PRESIDENT: Pursuant to standing order 14.28, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the bill without amendment.
Interjections from gallery.
The PRESIDENT: Order! I am not going to stop this. If anyone wants to leave before I call the next item of business, please do.
Georgie Crozier: On a point of order, President, the chamber has just witnessed a display that I think has diminished the standing orders of this place. The opposition has a right to ask questions in committee, and that is exactly what we have done.
Jaclyn Symes interjected.
Georgie CROZIER: I beg your pardon? I raise this point of order because there are standards in this place that need to be upheld for a whole range of reasons, and I think you have disregarded those. I make the point that it is incredibly disappointing.
The PRESIDENT: I take on board your criticism. I think that there are occasions where it does not matter what I do or what I say, I would not be able to control certain situations. I do not think there was –
Members interjecting.
The PRESIDENT: Order! As I said, I think there are certain situations sometimes where it would not matter who was sitting here – I do not think there would be any difference to an occasion. But as I have said, I am always open to any sort of criticism from the chamber. There are vehicles for people if they are unhappy with the way I am presiding; in the next sitting week, I invite anyone. I have said a number of times in this chamber that I might not reach the greatness of some of the previous Presidents, but I will do my best.