Second Reading
Danny O’BRIEN (Gippsland South) (14:58): I am pleased to rise to speak on the Statewide Treaty Bill 2025, and I acknowledge that this is a very special day for those in the Indigenous communities. I hope that this debate can be undertaken with respect and respect for differences of views. Whatever your view on treaty, and I will go to our position shortly, I do acknowledge that this is a historic day, and I acknowledge the co-chairs of the First Peoples’ Assembly, Rueben Berg and Ngarra Murray, and their contributions just before question time here in the chamber. I accept that the bill will, obviously, pass this chamber and will likely pass the other and become law, and I acknowledge those who have been working towards that end for many years.
I do want to be clear, though, from the start that the Nationals and Liberals will not be supporting this legislation, and this is no surprise to anyone in this chamber or indeed in the state. Our position has been that for some time. To say that we are very concerned about this legislation would be to understate our position. We do not support treaty. We certainly do not support this bill. I must say from my own personal point of view, even if I supported the concept of treaty I could not support this legislation, and there are a number of reasons why that is the case. I do want to be very clear that the Liberals and Nationals will not be supporting this, and if elected next year in November we will be seeking to repeal this legislation.
I will reiterate my point that I think we can agree on outcomes that we are seeking even if we disagree on how we get there. We have for a long time and certainly during my time in this place, particularly with the member for Murray Plains as the then shadow minister, been very focused on closing the gap and addressing that issue. I said to the First Peoples’ Assembly only a month or two ago that we disagree on the journey but we agree on the destination. We will always be working towards addressing those very fundamental issues where Aboriginal people are at a disadvantage. That is going to be the focus of our engagement, not on treaty, which we do not think is the right way to go.
We support equal treatment, equality of opportunity and justice for all Victorians, irrespective of their race, ethnic background, how long they have been here in Australia or any other characteristic. We support ensuring that everyone has the equality of opportunity to live a full, healthy, productive and happy life. That is something that we believe we can achieve for Aboriginal people, because we know and we understand the fact that on so many of the markers we are failing on closing the gap. And when I say ‘we’, this is a government that has been in power in Victoria for 20 of the last 24 years or more, and we have gone backwards. I acknowledge that the treaty is an attempt to change that, but we have been working on this now for eight years or nine years, and the government has failed. In child protection, for example, in 2023–24 Aboriginal children were placed in out-of-home care at a rate 20 times that of non-Aboriginal children; the suicide rate among Aboriginal people was 30 per 100,000 in 2023, making them over three times more likely to die by suicide than non-Aboriginal Victorians; an eight-year gap persists between Aboriginal and non-Aboriginal life expectancy; Aboriginal employment sits much higher than for non-Aboriginal Victorians, and all of these are signs of failure to close the gap.
Members interjecting.
Danny O’BRIEN: I hear those opposite say that is why we need treaty. I have not seen yet any evidence that this will actually change it, and this will be a difference of opinion in how things are done. And I would like to say to those opposite and to anyone listening today, we can have a difference of opinion on how things are done. Words have been thrown to me here across the table and frankly by the minister a couple of weeks ago in the chamber to say that we are peddling a policy that is shameful and wilful ignorance – that is what the minister said – and that we are choosing fear and division over respect and progress. There is no respect in abusing people because they have got a difference of opinion. You can have a policy and an objective in mind and be trying to achieve that objective and have a different way of getting there. As I said to Rueben Berg a few months ago, our objective is the same: closing the gap. We do not agree with the way the government is going. We are planning to go a different way, and I have talked about that before. I would ask everyone –
Members interjecting.
Danny O’BRIEN: Our First Peoples’ Assembly chairs talked about respect. The Premier in her second-reading speech talked about respect. I would hope that we can show that through this debate.
I want to acknowledge from the start the clear and obvious harm caused by colonisation in Victoria to First Nations people. I can only really speak from my own experience in Gippsland and what I have heard there. A few years ago there was a debate over Cairns celebrating, if you like, the journey of Angus McMillan as the so-called discoverer of Gippsland – the first European through Gippsland I think is how it is better put. We do not know enough about Indigenous history, or we do not have enough taught to us. I have been really pleased in the last few years that that is changing. One of the things that I have learned and that my children now learn is the creation story of the Gunaikurnai with Borun and Tuk and how that how they came to be in Gippsland and how that is one of their creation stories.
I acknowledge the horrendous impact that occurred, particularly the amount of massacres. Gippsland was no different to anywhere else in the country where there were massacres. I have followed this debate quite a bit, as I mentioned, particularly in relation to the history of Angus McMillan. People will be aware of the book from a couple of decades ago by Peter Gardner called Our Founding Murdering Father, which was about Angus McMillan and posited his involvement in various massacres in Gippsland. I have just finished reading a book, though, that replies to that. It is a book called A Convenient Scapegoat by Rob Christie, which again does not for a second deny that those horrendous massacres took place but goes into some of the history and the evidence as to whether Angus McMillan himself was involved. I have visited Libby Balderstone at Warrigal Creek station; Libby’s house is only a few hundred metres from the site of the Warrigal Creek massacre. These are devastating things to come across, but they are also from a period where written history was extremely rare, probably deliberately so in some part on the case of the settlers – things were covered up – and I acknowledge that absolutely some horrendous things happened.
I would also like to point out that from that there were good acts, including one that touched me and my family particularly. I only discovered this issue a couple of years ago. In my family I am descended on my mum’s side from the O’Rourkes, who came across from New South Wales, the Monaro, about the same time as John Batman was settling Melbourne, into Suggan Buggan, Gelantipy and Wulgulmerang, that area. Two of the O’Rourke boys were out one day and came across – there are different aspects of the story – the aftermath of a massacre or at least an Aboriginal woman who had been shot on the banks of the Snowy River. These men came across the woman. She was dead, and next to her was a baby. They picked up that baby and took it home, and the baby became Jambi, later known as Ned O’Rourke, and was raised by the O’Rourke family as one of their own. I have not got the family tree here in front of me, but I think they had 10 or 13 kids, depending on who you believe, of their own, and added Jambi to that family. Ned O’Rourke, as I said, was raised by the O’Rourkes. I think it is a fascinating story.
What added to the fascination is how I found out about it. Ken Hodge, who was a cousin of my mum’s, had done some research himself on this issue, again as a descendant of the O’Rourkes, and was keen to find descendants of Neddy, of Jambi. By sheer coincidence he was at Southern Cross Station. He lives in Mortlake, and he was on his way back to East Gippsland and came across some Aboriginal people, and he said, ‘Are you from Lake Tyers?’ and they said yes. He had played footy against Lake Tyers and knew people from there. They got talking, and lo and behold he met Elaine Terrick, who was a descendant of Ned O’Rourke. Within a few minutes they worked out that they had both been searching for descendants of the respective families. There is a video online on YouTube about this story, and in it Ken Hodge says, ‘I thank your people for allowing my people to settle in this area,’ which might be an interesting way to put it. He said they were outnumbered. They were a small family and they were very, very isolated. They could have been wiped out I think were the words Ken used. And Elaine says to him, ‘We’re a pretty good mob.’ And then she says, ‘And you were a pretty good mob too.’ I think that is the way we all should be trying to work together. I tell that story because I guess everyone has similar stories or has some history, particularly those of us whose families have been around for a long time, and yet there are many recent immigrants who do not have that connection and that history, for whom all of this discussion is very new.
I now want to talk a bit about the legislation itself and highlight why we are not supportive of it. For me personally, and I think for all of us on this side, the norms of the Westminster system are very important – that you have elected representatives, ministers who are members of the Parliament, who are part of the executive but accountable to the Parliament and by being accountable to the Parliament are accountable to the people. That is something that I think is extremely important and has served us very well. What I am concerned about with the establishment of Gellung Warl are the governance arrangements around it that are outside the norms of that Westminster system, and effectively Gellung Warl is granted a level of unprecedented autonomy, operating independently of ministerial direction – it cannot be directed by the minister – and given substantial and ongoing taxpayer funding. I know that is deliberate, and this is where we disagree. This is not something that the government is trying to hide, nor the First Peoples’ Assembly, but I do not support that as a principle that should be introduced in this legislation. The bill states that:
Gellung Warl is not subject to the direction or control of the Minister in respect of the performance of its functions and the exercise of its powers.
That is something that concerns me in terms of accountability. I will talk a little bit more about accountability later.
A second aspect of that is that the bill requires that every member introducing a bill must prepare a statement of treaty compatibility, detailing whether the First Peoples’ Assembly was consulted, the nature and timing of any advice and an assessment of the bill’s alignment with treaty principles. That basically says every piece of legislation has to be at the very least consulted on, if not indeed ticked off by, Gellung Warl. What concerns us is, in parallel with that, clause 1 of the bill uses the phrase ‘matters that affect First Peoples’, but nowhere in the legislation is there a definition of ‘matters that affect First Peoples’; almost by definition any matter could or will affect First Peoples. I think the absence of a clear definition of that phrase creates legal and procedural ambiguity, enabling the First Peoples’ Assembly to assert relevance over virtually any area of public policy. Again, I appreciate that may well be the intention of the government, that First Peoples have a say over literally everything that we deal with; that is not something I think is fair. Going back to my initial statement, I think the Liberals and Nationals support equal treatment and equality of opportunity and justice for all Victorians, and I do not think that one group of Victorians should have that additional privilege without being elected to Parliament. That is the nature of our arrangements.
In addition to that, the First Peoples’ Assembly has power to make representations to inform Parliament on legislation, advise government departments and service providers and question ministers and secretaries during engagement hearings. Noting that this legislation will get through, I wish them well in that because as members of Parliament we get to question ministers, and we rarely actually get any answers, so I hope they do better than us. Similarly, the First Peoples’ Assembly is mandated under the act in clauses 86 and 87 to meet with departmental secretaries and the Chief Commissioner of Police, and those agencies – the departments and VicPol – must develop consultation guidelines which must be considered by government authorities and state-funded service providers. They are, again, matters that no other organisation or group has access to under law in Victoria, and that is a concern that we have.
I appreciate the electoral process that both was set up previously in 2019 and 2023 for the election of the First Peoples’ Assembly and now is codified under this bill and appreciate the acknowledgement that we have heard from co-chairs past and present that the actual turnout, if you like, for those elections was small, particularly in 2019. It increased in 2023, but still only 2000 voted in 2019 and about 4200 voted in 2023 out of 7000 on the roll and out of an estimated 50,000 Aboriginal people who could have voted. I raise that because it then goes to the issue of the community answerability framework, which is covered in some detail in the bill. The stated aim is for Gellung Warl to be democratically and publicly accountable and answerable to community. The rhetoric stresses answerability to community. I asked in the bill briefing who we are referring to when we say ‘community’, and the answer was ‘the Aboriginal community’. I do not see the same level of answerability to the broader Victorian public, and that is also a concern. Yes, the First Peoples’ Assembly, the other part of Gellung Warl, are answerable to their community. But this Parliament needs to be answerable to all Victorians, and that is an area of this legislation that I do not support.
Another area where again there is a separate and different rule which I do not think is fair is the exemptions from things like freedom of information. There are significant exemptions from freedom of information for Gellung Warl. There are some broad automatic exemptions for entire categories of documents, and that goes to culturally sensitive or culturally secret information. I understand some of that. There are reasons for that. But it effectively places cultural secrecy on the same level as cabinet confidentiality but with much broader scope and far less oversight. The First Peoples’ Assembly, literally under the act, has more FOI and secrecy protections than ministers or other statutory bodies. Again I do not think that is something that we should have in a strong democratic Westminster system.
Finally on the legislation, the issue of ongoing funding for Gellung Warl through a standing appropriation bypasses the usual budgeting processes. I understand we have the Parliament, the electoral commission and maybe one or two others that do receive standing appropriations, but they are based on discussions with Treasury and on need, whereas the legislation literally puts this money, $207 million, if I am not mistaken, in the first four years. But when you read the operational and capital expenditure funding ongoing over the next 10 years, it actually equates to around about $2.7 billion, depending on the discount rate that you used. That is a significant investment. I would welcome the minister or further speakers giving some clarity on this, but certainly that initial funding in the next four years is largely for the set-up of Gellung Warl. It is not for health services or for housing or for child protection or for any of those matters – employment and economic opportunity for Aboriginal people. It is actually the cost of setting up Gellung Warl.
Finally on that issue also, the government’s decision to hand over what is currently the Aboriginal community infrastructure program, which will become the First Peoples’ Infrastructure Fund, directly to Gellung Warl to control, again, is giving taxpayers money to an unelected body to make decisions. The Parliament at this point has the opportunity to have a say on that, and that is why we are having our say and saying we do not agree with that. We think that the principles of democratic responsibility and accountability should ensure that whenever taxpayers money is being spent, there is a minister ultimately responsible, and this is not the case under this proposed legislation.
There are a number of other parts of the legislation that are probably a little bit vague and we need clarity on, particularly with relation to the framework on water entitlements. The bill empowers the assembly to issue guidelines and standards on the sharing of water entitlements, but what that actually means we do not yet know.
A member interjected.
Danny O’BRIEN: No, Minister, I have actually been to the briefings. I remember asking questions of the then Minister for Water about some entitlements that were allocated in last year’s budget, or maybe the year before’s, and the minister could not tell me what the status of those entitlements were. These are some of the questions that I think need answering.
What will we do? My colleague in the other place Melina Bath has been on a journey since becoming the shadow minister at the start of this year, literally and figuratively. She has gone from Orbost to Mildura to Portland and everywhere in between, meeting with Aboriginal communities, with Aboriginal community controlled health organisations (ACCHOs) and with traditional owners. She has given me a couple of points from the feedback that she got on those trips regarding what the community is calling for: practical, place-based solutions; flexible and long-term funding; greater autonomy and representation; early and respectful engagement in planning; and policies that reflect lived experience and community priorities. That is why we have announced today our alternative to treaty, and that is to establish First Nations Victoria (FNV) – a standalone department dedicated to improving the lives of Aboriginal and Torres Strait Islander Victorians, taking them out of the Department of Premier and Cabinet and giving them their own organisation, one that can work with Aboriginal people. There will be a ministerial advisory council to ensure that we are working with them. Melina Bath’s intention for that is particularly to devolve the decision-making to those areas that are on the ground trying to address those Closing the Gap issues.
Why we have done this – again, I will give credit to the member for Murray Plains, who took this policy, or a very similar version, to the last election – is to put in some accountability. I hear some commentary from people who are on the Public Accounts and Estimates Committee and who have sat next to me when I have been asking questions of the minister for Aboriginal affairs in the past about education completion rates, about child protection matters, about housing and all of those things, and so often the response was ‘That is a question you need to ask the minister for housing’ or ‘That is a question you need to ask the Minister for Education.’ It was a very, very good way for ministers to avoid accountability for this. That is why we will establish First Nations Victoria, responsible to a minister who, with a ministerial advisory council, will work with Aboriginal people to address those issues.
I want to go to a little bit about where that aligns. There are four nationally agreed Closing the Gap priority reforms. Bear with me on this. Priority reform one is formal partnerships and shared decision-making. First Nations Victoria will establish, as I said, a ministerial advisory body made up of Aboriginal leaders across regions and sectors. We will embed co-location with ACCHOs to co-design services and align programs with local priorities. We do not want to have people sitting in the Department of Premier and Cabinet telling those, particularly ACCHOs and the like, on the ground what they will do. We are going to send them out to work with them directly. Priority reform two is building the Aboriginal and Torres Strait Islander community controlled sector. Our First Nations Victoria alignment consolidates funding and reinvests savings into ACCHO capacity building, implements performance-linked funding agreements with ACCHOs and recognises ACCHOs as essential partners in service delivery and policy implementation.
Priority reform three is transforming government organisations. First Nations Victoria will create a standalone department to coordinate Aboriginal affairs across government, lead an Aboriginal Workforce strategy to build capability both within the public service and in the Aboriginal workforce more generally and introduce binding policy instructions to drive accountability across agencies. Priority reform four is shared access to data and information at the regional level. FNV will commit to quarterly dashboards with regional data and case studies on our approach to dealing with the Closing the Gap issues, ensure annual reporting to Parliament and public transparency and use this data to guide corrective action and inform policy decisions.
That is the alignment that we are seeking. One of the things that Ms Bath in the other place heard about so often was the lack of flexibility. I have got the member for Eildon sitting beside me, and she mentioned visiting Oonah at Healesville, others in Mildura, in Horsham and in Portland, where they have funding for housing, for example, but what they really need is dental services. They said that the bureaucracy and the red tape of being able to transfer funding from one priority to another just does not work. I think what we are seeking to do is to devolve power to those organisations to ensure that what the Victorian government is doing is actually delivering on need as best it can where it is needed, particularly to address the Closing the Gap priorities.
I just want to touch on one or two other matters that are relevant to this legislation. I know the government talked about and indeed the Premier in her second-reading speech talked about the use of First Nations language as a practical way we can show respect. I would agree with that. The fact that the Kurnai people, whose term Gellung Warl has been used, are upset with that highlights that the government has not necessarily got this right. I acknowledge that I am sure there is a difference of opinion within the Kurnai and the Gunaikurnai. I think the Gunaikurnai did give permission, but it is a matter that highlights that there is not unanimous agreement on this matter among the Indigenous communities in Victoria.
The other thing I would like to mention from the Premier’s second-reading speech is that she thanks the Victorian community for coming along with us on this journey. I would posit to the Premier and to the minister that most Victorians did not even know this journey was occurring. I acknowledge that it has been in train since, as I said, 2016 or 2017, but very few people, until this was actually announced some months ago as coming, were even aware of it. What is now the case, though, is that Victorians will be able to have their say. I know that there have been calls by some that there should be a referendum or a vote on this. That is not something I support, but the reality is that now Victorians will have the opportunity, because the Liberals and Nationals do not support this legislation and if elected in November next year, within 100 days we will introduce legislation to repeal the treaty arrangements, and the Victorian people will have their say. We do not support treaty. We want to continue to work with Aboriginal people to close the gap.