First Nations Voice Regulations 2023

The Regulations revolve around a small set of recurring legal and administrative constructs. Those constructs and their immediate legal effect under the instrument are:

• Regions (r 4): The Act requires regions for Local First Nations Voices. The Regulations define each region by reference to a plan lodged in the General Registry Office (GRO Plan No 15/2023) and assign names to the numbered regions on that plan (Central; Far North; Flinders and Upper North; Riverland and South East; West and West Coast; Yorke and Mid‑North). The plan reference is open to change “from time to time” (r 4(1)), meaning the Regulations do not themselves contain map coordinates or text boundaries but anchor regional boundaries to the external GRO plan.

• Composition of Local First Nations Voices (r 5): The Regulations set membership numbers. Central region Local First Nations Voice is to have 11 members; every other Local First Nations Voice is to have 7 members. This fills out the Act’s section 11 requirement for composition by providing fixed numerical sizes.

• Prescribed native title bodies (r 6): The Regulations list 25 named corporations incorporated under the Commonwealth Corporations (Aboriginal and Torres Strait Islander) Act 2006 that are “prescribed” for the purposes of section 33(2) of the Act. The list is explicit and enumerated (r 6(a)-(y)). The Regulations therefore create a closed list for that particular statutory reference unless amended later.

• Security for costs (r 7): The Regulations prescribe the amount of $200 for the purposes of Schedule 1 clause 21(1)(f) of the Act. The wording fixes a specific monetary figure for a security requirement that the Act contemplates.

• Transitional timeframes and first-meeting procedures (rr 8-10): The Regulations require that consultation obligations under section 48 of the Act occur within six months after the first election of Local First Nations Voice members following the commencement of Schedule 2 clause 3 (r 8). They require first meetings of each Local First Nations Voice to occur within two months of the first election (or within two months of a supplementary election required by the Minister) and to elect joint presiding members at that meeting; a member chosen by those present presides until joint presiding members are elected (r 9). They also create specific relaxations for the calendar year of the first election, allowing non‑compliance with several meeting‑frequency and meeting‑convening provisions of the Act in that year (r 10 sets out particular Act provisions that need not be complied with in that year).

Together, these concepts make the Regulations a mix of geographic, membership and time‑limited transitional rules. They are targeted instruments that transform certain Act placeholders into enforceable, operational answers: mapped regions; a headcount rule; a list of relevant native title bodies; a monetary figure for security; and short windows for initial consultations and first meeting activities.

The Regulations affect different actors in distinct, concrete ways by fixing specifics the Act otherwise left to subordinate rules. Relevant actors and how they are touched by the Regulations include:

• Local First Nations Voices and their members: The Regulations set membership numbers,Central 11 members, other regions 7 members (r 5). That determines the size of the decision‑making body Local First Nations Voices must populate. The Regulations also prescribe first‑meeting timing, the requirement to elect joint presiding members at the first meeting, and that a member chosen by those present will preside until the joint presiding members are elected (r 9). Local First Nations Voices will therefore have to plan for elections that produce the right number of members, hold a first meeting within two months, and effect those officer elections.

• State First Nations Voice: The Regulations provide transitional exceptions affecting the State First Nations Voice’s meeting and convening obligations in the calendar year of the first election (r 10(b)-(d)). Those exceptions temporarily change the State First Nations Voice’s statutory meeting frequency and its duty to convene a meeting of all Local First Nations Voices in the relevant year.

• Native title bodies incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006: A specific, enumerated list of such bodies is prescribed (r 6(a)-(y)) “for the purposes of section 33(2) of the Act.” Entities on that list are thereby given a defined role under the Act by way of being prescribed in the Regulations. Other native title bodies not named are not covered by this prescription unless later added by amendment.

• The Minister: The Minister retains a concrete power under the transitional rules,the Minister may require a supplementary election if the first election fails, which triggers the two‑month first‑meeting clock to run from the supplementary election (r 9(a)(ii)).

• The Premier and Cabinet and Chief Executives: The Regulations create targeted exceptions for the Premier’s duty to cause certain briefings and engagement hearings and for the requirement that the State First Nations Voice and Cabinet meet at least twice in the relevant year (r 10(d)-(f)). Those excused duties fall on the Premier and Cabinet in that transitional calendar year.

• Persons required to provide security for costs under Schedule 1 cl 21(1)(f) of the Act: The Regulations fix the prescribed amount at $200 (r 7). Any person required by the Act to provide that security must comply with that figure once the Act provision is invoked.

• Administrators of the General Registry Office and users of GRO Plan No 15/2023: The Regulations refer to an externally lodged plan in the General Registry Office for region delineation (r 4(1)). Officials who administer or rely on the GRO plan to determine region boundaries must use GRO Plan No 15/2023 as the statutory reference.

Several categories of actors are not specified in the Regulations but are nevertheless affected by implication through the Act’s cross‑references, for example: electoral officials arranging the first election, secretariat staff providing meeting support, and entities interacting with Local First Nations Voices during consultation windows (r 8). The instrument does not create new liabilities or criminal offences, but it prescribes processes and binding timeframes for those specified actors.

The Regulations crystallise a set of duties and procedural rights by reference to the Act. The primary duties and rights created or clarified by the instrument are:

• Duty to use the GRO plan for region boundaries: Administrators, electoral authorities, and those determining which Local First Nations Voice covers a geographic area must apply the area or areas delineated in GRO Plan No 15/2023 for the purposes of section 9(2)(a) of the Act (r 4(1)). That duty is about correct spatial identification.

• Right to a labelled region name: The Regulations attach names to the numbered regions on the GRO plan (r 4(2)). That provides a naming convention that stakeholders can use for communications, notices and electoral materials.

• Duty to populate Local First Nations Voices with the prescribed number of members: For composition under section 11 of the Act, a Local First Nations Voice must have 11 members for Central and 7 for each other region (r 5). This creates a fixed statutory quota for membership numbers.

• Duty to consult: Consultation duties under section 48 of the Act are given a concrete deadline by the Regulations: consultations must occur within six months after the first election of Local First Nations Voice members following the commencement of Schedule 2 clause 3 of the Act (r 8). The Regulations impose a temporal duty to comply with the Act’s consultation obligation within that transitional period.

• Duty to convene and conduct the first meeting: Each Local First Nations Voice must hold its first meeting within two months after the first election (or within two months of a Minister‑required supplementary election) (r 9(a)). The meeting must elect joint presiding members (r 9(b)), and until those joint presiding members are elected a member chosen by those present will preside (r 9(c)). Those are procedural duties for the initial governance set‑up.

• Right to initial flexibility on meeting frequency and inter‑body meetings in the first election year: The Regulations create explicit exemptions from several statutory meeting requirements for the calendar year of the first election (r 10). Specifically, Local First Nations Voices need not meet at least four times in that year (s 16(2) of the Act is excepted by r 10(a)); the State First Nations Voice need not convene a meeting of all Local First Nations Voices at least once in the year (s 22(1) is excepted by r 10(b)); the State First Nations Voice need not meet at least four times in that year (s 29(2) excepted by r 10(c)); and multiple State/Premier duties (s 43(1), s 45(1), s 46(1)) need not be complied with in the relevant year (r 10(d)-(f)). These are temporary rights to non‑compliance specific to the first election year; they do not repeal the duties permanently.

• Right to rely on a prescribed list of native title bodies for s 33(2): Where section 33(2) of the Act requires prescription of native title bodies, the list in r 6 is the authoritative list. That creates a right for those listed bodies to be treated as prescribed under that Act provision.

• Duty to provide the prescribed security amount: Where the Act requires a prescribed amount as security for costs under Schedule 1 cl 21(1)(f), the Regulations fix that amount at $200 (r 7). Any obligation arising under the Act to provide security is thereby tethered to that figure.

The Regulations do not create new decision‑making discretions; rather they remove some discretion by fixing numbers, names and a monetary figure. They do, however, preserve Ministerial discretion in relation to requiring a supplementary election if the first election fails (r 9(a)(ii)). The instrument does not set out procedures for elections themselves, eligibility criteria for members, or the content of consultations; those issues are left to the Act or other subordinate instruments where the Act provides for them.

The Regulations do not introduce new offences or specify penalty regimes. There are no monetary penalties, criminal sanctions, or administrative penalty amounts prescribed in these Regulations. Enforcement, to the extent implied by the instrument, is through the Act’s existing mechanisms and the imposition of procedural requirements and deadlines. Relevant points from the Regulations are:

• No penalty clauses: None of the Regulations (rr 1-10) create an offence provision, nor do they state enforcement mechanisms, administrative penalties, or prosecution routes. The instrument confines itself to specification and transition.

• Practical enforcement via procedural deadlines: The Regulations impose fixed timeframes for consultation (r 8), first meeting timing (r 9(a)), and the election of joint presiding members at the first meeting (r 9(b)). Failure to meet those deadlines would be a failure to comply with the Regulations. Any enforcement action, remedy, or legal consequence for non‑compliance is a matter for the Act’s enforcement and dispute resolution architecture if the Act provides any such remedies (the Regulations themselves do not refer to remedies).

• Security for costs as a procedural hedge: The prescribed $200 security (r 7) is a monetary requirement tied to Schedule 1 cl 21(1)(f) of the Act. While the Regulations simply fix the amount, the function of such a prescribed amount in litigation or procedural contexts can be to require payment before a party proceeds. The Regulations do not specify collection or refund mechanics; those would be handled under the Act or associated procedural rules.

• Ministerial role as a trigger for supplementary elections: The Minister’s ability to require a supplementary election where the first election “fails” (r 9(a)(ii)) is a decision point with operational effect. The Regulations do not prescribe sanctions for failure to obey a Ministerial direction, but once the Minister requires a supplementary election the first meeting timing is restated with reference to that supplementary election.

• Transitional non‑compliance carve‑outs: The Regulations expressly allow specified statutory meeting and engagement requirements of the Act to remain unmet in the first election year (r 10). Those carve‑outs operate as immunity from enforcement for specified duties in that calendar year but only for that transitional period.

Because the instrument lacks explicit enforcement prescriptions, any compliance failure will be actionable only under the Act or other applicable law. The Regulations’ primary enforcement mechanism is the clarity and certainty created by specifying dates, numbers, and a monetary figure; they do not themselves prescribe penalties or enforcement processes.

The Regulations are heavily framed as subordinate to and operationally tied to the First Nations Voice Act 2023 and to certain external instruments. The principal points of interaction are:

• First Nations Voice Act 2023: The Regulations repeatedly operate by reference to specific sections and schedules of the Act. Examples include:

  • Regions for the purposes of section 9(2)(a) of the Act are set by reference to GRO Plan No 15/2023 (r 4(1)).
  • Composition of Local First Nations Voices is for the purposes of section 11 of the Act (r 5).
  • The list of native title bodies is prescribed for the purposes of section 33(2) of the Act (r 6).
  • The prescribed security amount is fixed for Schedule 1 clause 21(1)(f) of the Act (r 7).
  • Transitional provisions refer to section 48 (consultation), section 16(2), section 22(1), section 29(2), section 43(1), section 45(1), and section 46(1) of the Act (rr 8 and 10). Each of these interactions converts Act placeholders and duties into concrete requirements or temporary exceptions.

• General Registry Office (GRO) Plan No 15/2023: The Regulations create a cross‑reference to an externally lodged cadastral or mapping instrument (r 4(1)). The effect is to tie statutory region boundaries to an administrative land registry plan rather than embedding boundaries in the instrument. That imports the GRO plan as an authoritative instrument for geographic delineation and makes the accuracy and availability of that plan material to the Regulations’ application.

• Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Commonwealth): The Regulations prescribe specific bodies that are “incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 of the Commonwealth” for the purposes of section 33(2) of the Act (r 6). This imports elements of Commonwealth corporate law by reference: the prescribed bodies are RNTBCs or similarly constituted corporations whose incorporation status under Commonwealth law determines their relevance under the State Act.

• Schedule cross‑references within the Act: The Regulations engage with the Act’s internal schedules. For instance, r 7 fixes a figure for a Schedule 1 clause and rr 8-10 are expressly transitional provisions tied to the commencement of Schedule 2 clause 3 of the Act. This shows the Regulations’ role in sequencing and configuring the Act’s internal schedule timelines.

• Administrative discretion under the Act: The Minister’s power to require a supplementary election (r 9(a)(ii)) is a Ministerial act under the Act. The Regulations do not expand or circumscribe that power but provide a downstream procedural rule tied to that decision.

• Absence of interaction with other enforcement statutes: The Regulations do not reference penalty provisions in other South Australian statutes, procedural rules of courts, or administrative tribunals. Any legal disputes about compliance, boundary interpretation or election failures would therefore require cross‑referencing the Act and, where necessary, general administrative law or common law mechanisms.

In short, the Regulations are a tightly scoped subordinate instrument that converts multiple Act references into working details, and they import an external GRO plan and a set of Commonwealth‑incorporated bodies into the State Act’s operational regime. Where the Regulations are silent on a procedural or substantive matter, the Act or other applicable law will govern.

The instrument’s legislative history in the text is brief and limited to its initial making. The recorded entries are:

• Principal regulations: First Nations Voice Regulations 2023, No 29 of 2023.
• Gazette publication: Gazette 11.5.2023 p 931.
• Commencement notation: r 2 indicates the Regulations come into operation on the day on which section 9 of the First Nations Voice Act 2023 comes into operation; the legislative history shows the Gazette date and a notation “12.5.2023: r 2” (indicating the commencement notice recorded in the Gazette).

There are no subsequent amending instruments or later entries recorded in the Regulations’ text provided. No repeal, amendment, or variation clauses are included in the Regulations themselves beyond the fact that r 4(1) links region boundaries to a GRO plan “from time to time,” which permits the external plan to be updated without amending the Regulations if the plan itself is altered in the General Registry Office. The Regulations do not contain a clause establishing automatic indexation of the prescribed security amount (r 7 fixes $200 without adjustment mechanism), nor do they include sunset, review, or automatic amendment provisions.

If future amendments occur, they would appear as subsequent statutory instruments amending these Regulations or replacing them; none are recorded in the text supplied. The Regulations therefore represent the original subordinate instrument as made in 2023 and do not show an amendment trail in the material provided.

There is no litigation history recorded or referenced in the Regulations text provided. The instrument does not refer to any judicial decisions, contested applications, or prior interpretations. It contains no schedule that lists cases, and the legislative history section lists only the Gazette entry for the making and commencement of the Regulations (Gazette 11.5.2023 p 931; commencement r 2 on 12.5.2023 as recorded).

Because the Regulations are recent subordinate legislation (dated 2023 in the legislative history) and are primarily procedural and prescriptive, absence of litigation in the instrument is not surprising. Any litigation that might arise in the future would likely concern:

• interpretation and application of the GRO Plan No 15/2023 for regional boundaries (r 4),
• disputes about whether an election “failed” and the Minister’s power to require a supplementary election (r 9(a)(ii)),
• challenges relating to whether a particular native title body is correctly prescribed under r 6 for the purposes of s 33(2) of the Act,
• disputes over compliance with the transitional timelines and exceptions in rr 8 and 10, or
• application of the $200 prescribed security amount in contested procedural contexts (r 7).

None of those possibilities are reflected in the Regulations’ text as presented. The Regulations therefore have no adjudicated interpretive history recorded in the source material.

The Regulations are short and specific, but several potential operational pitfalls and sources of uncertainty arise from what the instrument does and does not say. These are points to watch for administrators, counsel, and advisers who implement or advise on compliance.

• Reliance on an external GRO plan (r 4(1)): Region boundaries are defined by reference to GRO Plan No 15/2023 “from time to time.” The Regulations do not reproduce the map, provide coordinates, or specify what changes to the GRO plan (if any) alter region boundaries in practice. Users must obtain and rely on the GRO plan. Risk areas include delays or disputes if the GRO plan is difficult to access, unclear, or subsequently amended without publicised notice tied to the Regulations.

• Closed, enumerated list of native title bodies (r 6): The Regulations prescribe 25 named bodies “for the purposes of section 33(2) of the Act.” This is an explicit list; bodies not named are excluded from that prescription unless the Regulations are amended. Practitioners should not assume inclusion of any body not on the list, and any omission may require regulation amendment or an Act‑based mechanism to include additional bodies.

• $200 security for costs (r 7): The Regulations set the prescribed amount at $200 but do not specify collection mechanisms, indexation, or whether that amount applies per proceeding or per person. Practitioners must trace the Act’s Schedule 1 cl 21(1)(f) to determine the triggering circumstances and the mechanics of payment. The flat figure creates certainty but also raises practical questions about appropriateness, waiver, or variation, none of which the Regulations address.

• Timing constraints with minimal detail (rr 8-9): The Regulations impose short windows (six months for consultations under s 48; two months for first meetings after election or supplementary election). The Regulations do not define who organises the consultations, how consultation adequacy is assessed, or what evidence demonstrates compliance. Similarly, the Regulations require joint presiding members to be elected at the first meeting, but do not set out nomination, voting or tie‑breaking procedures for those elections.

• Ministerial discretion without process detail (r 9(a)(ii)): The Minister can require a supplementary election if the first election “fails.” The Regulations do not define “fails” or set standards for when the Minister should exercise that power. That may produce disputes about whether the Minister’s requirement was validly exercised.

• Transitional exceptions limited to the “relevant year” (r 10): The Regulations allow non‑compliance with several statutory meeting obligations in the calendar year of the first election after Schedule 2 clause 3 commences. Those exceptions are narrowly timed to that year. Parties should not assume broader relaxation of statutory duties beyond that defined period. Also, the Regulations do not provide guidance about counting meetings that straddle calendar years or what happens if an election occurs late in the calendar year.

• Scope omissions: The Regulations do not address electoral methods, membership eligibility, terms of office, conflict of interest rules, meeting quorum rules, record‑keeping, or public disclosure requirements. Those matters either sit in the Act or elsewhere. Practitioners should map the Act and associated instruments to ensure full compliance.

• No penalty or enforcement detail: Because the Regulations contain no enforcement provisions, the practical consequence of non‑compliance will require resort to the Act or general administrative law. That may mean delays or procedural uncertainty where the Regulations are silent.

In short, the Regulations provide definitive answers on a small number of points, but leave other operationally significant issues to the Act or administrative practice. This creates precise duties where the Regulations speak, and potential ambiguity where they do not.

This section is a practical compliance checklist distilled from the Regulations. It identifies the concrete actions required, the documents and timings to track, and the decision points that carry obligation or discretion. Each bullet cites the Regulation provision that creates the duty or right.

1. Confirm commencement timing (r 2)

   • Monitor the commencement of section 9 of the First Nations Voice Act 2023. These Regulations come into operation on that day. Do not act under the Regulations before that commencement.

2. Obtain and use GRO Plan No 15/2023 for region boundaries (r 4(1))

   • Obtain the current version of GRO Plan No 15/2023 from the General Registry Office and use it to determine which geographic area falls into which region.
   • Note that the plan may change “from time to time”; establish an administrative check so you use the current lodgement.

3. Use the prescribed region names in documentation (r 4(2))

   • When preparing electoral materials, consultations, notices, or minutes, use the names assigned by r 4(2): Central, Far North, Flinders and Upper North, Riverland and South East, West and West Coast, and Yorke and Mid‑North.

4. Populate Local First Nations Voices to the prescribed size (r 5)

   • Ensure election or appointment processes deliver 11 members for the Central Local First Nations Voice and 7 members for each other Local First Nations Voice.
   • Verify how the Act or other instruments govern filling vacancies or over‑/under‑subscription.

5. Plan for first meeting timing and agenda (r 9)

   • Schedule the first meeting of each Local First Nations Voice to occur within two months of the first election of its members, or within two months of a Minister‑required supplementary election if that occurs (r 9(a)).
   • Agenda items must include election of joint presiding members (r 9(b)).
   • Provide for interim chairing: a member chosen by those present will preside until joint presiding members are elected (r 9(c)).
   • Ensure logistics, quorum, and voting arrangements comply with the Act and any other applicable rules (the Regulations do not specify quorum or procedural rules).

6. Prepare for consultations under section 48 within the six‑month window (r 8)

   • Arrange any consultation obligations with Local First Nations Voices required under section 48 to take place within six months of the first election after the commencement of Schedule 2 clause 3.
   • Document the consultation process and outcomes to demonstrate compliance with the time window.

7. Note first‑year meeting exceptions (r 10)

   • For the calendar year in which the first election occurs, be aware that:
     • Local First Nations Voices are not required to meet at least four times (exception to s 16(2)) (r 10(a)).
     • The State First Nations Voice is not required to convene a meeting of all Local First Nations Voices at least once (exception to s 22(1)) (r 10(b)).
     • The State First Nations Voice is not required to meet at least four times (exception to s 29(2)) (r 10(c)).
     • The State First Nations Voice and Cabinet need not meet at least twice (exception to s 43(1)) (r 10(d)).
     • The Premier need not cause a Chief Executive’s briefing to be held at least twice (exception to s 45(1)) (r 10(e)).
     • The Premier need not cause an engagement hearing to be held in the relevant year (exception to s 46(1)) (r 10(f)).
   • Do not rely on these exceptions beyond the relevant calendar year; ensure normal statutory meeting requirements resume thereafter.

8. If an election fails, track Minister‑required supplementary election timing (r 9(a)(ii))

   • If the Minister requires a supplementary election because the first election “fails,” schedule the first meeting to occur within two months after that supplementary election (r 9(a)(ii)).
   • Establish a record of the Minister’s direction and the supplementary election date.

9. Apply the prescribed native title bodies list where s 33(2) applies (r 6)

   • For any function or interface under the Act that relies on prescribed native title bodies under s 33(2), consult the list in r 6(a)-(y) and engage those entities accordingly.
   • Do not assume inclusion of any native title body not on the list; seek amendment if a body that should be prescribed is omitted.

10. Provide the prescribed security for costs where Schedule 1 cl 21(1)(f) is triggered (r 7)

    • If Schedule 1 cl 21(1)(f) of the Act requires a prescribed amount, ensure the amount provided is $200 as per r 7.
    • Keep records of payment and the procedural context that demanded the security. The Regulations do not specify payment channels or indexation, so follow mechanisms in the Act or in procedural rules.

11. Recordkeeping and evidence

    • Because the Regulations set time limits, keep dated records demonstrating that meetings, elections, and consultations occurred within the prescribed windows.
    • Retain evidence of GRO plan versions used and any Ministerial directions regarding supplementary elections.

12. Monitor for amendments

    • Because the Regulations are short and could be amended to add native title bodies, change prescribed amounts, or alter timings, set an administrative review date to check for amending regulations or for changes to GRO Plan No 15/2023.

In practical terms, compliance is largely an exercise in timing, documentation, and use of the specified external instruments (the GRO plan and the prescribed native title bodies list). The Regulations do not detail electoral or procedural minutiae; ensure that those gaps are filled by the Act’s provisions or by authorised procedural instruments before running elections or consultations.