Madeleine Perrett
12.11.2026
Introduction
In June 2026, an Opposition Bill to repeal the First Nations Voice Act 2023 (SA) (SA Act) was defeated in South Australia’s Legislative Council by a single vote, ten to nine. Across the border, the Victorian Coalition has promised that if it wins the election on 28 November 2026, it will repeal the Statewide Treaty Act 2025 (Vic) (Victorian Act) within 100 days, replacing Gellung Warl, the statutory corporation that includes the First Peoples’ Assembly, with a government department.
Both institutions grew out of the space the 2023 referendum left behind. With the proposed constitutional Voice to Parliament defeated, the states and territories became important sites for pursuing the Uluru Statement’s call for Voice, Treaty, and Truth. South Australia and Victoria did so in different ways. South Australia legislated for a First Nations Voice to Parliament (First Nations Voice). Victoria went further: on 13 November 2025, it signed a Statewide Treaty (the Treaty) with First Peoples, and on the same day the Victorian Act received Royal Assent.
It is easy to run those two Victorian instruments together, but this post focuses on the difference between them. The Victorian Act is ordinary legislation. It establishes Gellung Warl, sets out its functions, powers and funding, and has as one of its objects giving effect to the Treaty (s 2(1)(a)). The Treaty, by contrast, is an agreement, signed by the Premier, the Minister for Treaty and First Peoples and the members of the First Peoples’ Assembly, which records what the parties have committed to each other. It took effect not when Parliament legislated, but when the Treaty Authority published a statement that it had been formally agreed (sch A3 to the Treaty). Parliament can repeal the Victorian Act; nothing in the Treaty provides for its own repeal.
That distinction raises the central question of this post: does a negotiated treaty make a difference to the durability of a First Nations institution when the legislation establishing it remains vulnerable to repeal? I argue that it does, although not because the Treaty can prevent the Victorian Parliament from repealing the Victorian Act. It cannot.
South Australia provides an instructive comparison because its legislative and institutional context closely mirrors Victoria’s, with the notable exception of a treaty. Both the First Nations Voice in South Australia and Victoria’s Gellung Warl are established by ordinary, non-entrenched Acts of Parliament. Comparing their legal foundations, and what repeal would mean in each State, therefore isolates what a treaty adds to institutional durability. For clarity, ‘First Nations institution’ in this comparison refers to the statutory bodies created by each Act: the First Nations Voice in South Australia and Gellung Warl in Victoria.
The two Acts
On paper, the two Acts are more alike than the political debate would suggest. Each creates an elected First Nations body, gives it formal channels into Parliament and government, and stops short of giving it any binding power. They differ in how they were made, what their institutions do, and how those institutions are paid for.
Origins and institutions
The SA Act began as an election promise. Labor committed to a Voice in 2022, and two rounds of community engagement, led by Commissioner for First Nations Voice Dale Agius, shaped the model Parliament enacted. The SA Act places the Voice within a larger project, recognising that it complements the pursuit of truth-telling and treaty-making (s 8).
The Victorian Act had a longer and quite different path. It grew out of the Victorian government’s 2016 commitment to treaty, made after engagement with Aboriginal communities. The Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic) (2018 Act) then provided for an Aboriginal Representative Body to negotiate with the State, a role the First Peoples’ Assembly took on after its first election in 2019. Together, the First Peoples’ Assembly and the State built the machinery that made negotiation possible. It included a legally enforceable Treaty Negotiation Framework, an independent Treaty Authority, a Self‑Determination Fund, and the Yoorrook Justice Commission, which conducted a formal truth‑telling inquiry. The Act’s terms were then negotiated as part of the Statewide Treaty negotiations (Treaty cl 16(a)). Fittingly, the Victorian Act describes itself as designed by and for First Peoples (s 2(2)).
The bodies themselves are built differently too. South Australia’s First Nations Voice is built from the regions up: six elected Local First Nations Voices each choose two presiding members of different genders, and those 12 members together form the State First Nations Voice, supported by advisory committees for Elders, young people, Stolen Generations and native title bodies (ss 12, 24, 30–33). Gellung Warl, by contrast, is a statutory corporation with three arms:
First Peoples’ Assembly: a representative body of general elected members and reserved members appointed by Traditional Owner groups (ss 17, 62);
Nginma Ngainga Wara: an accountability body, appointed by the Assembly, that monitors the State’s performance on outcomes for First Peoples and its implementation of the Yoorrook Justice Commission’s recommendations (ss 92–94); and
Nyerna Yoorrook Telkuna: a body to continue the truth-telling work of the Yoorrook Justice Commission (s 121).
As representative bodies, the State Voice and the First Peoples’ Assembly are close counterparts, and the next section compares them. Gellung Warl’s accountability and truth‑telling arms have no equivalent in South Australia.
Parliament and government
Neither body can veto legislation, including legislation that affects First Nations people. Both must be notified of Bills (SA Act, s 39; Victorian Act, s 65), and both address Parliament each year (SA Act, s 38; Victorian Act, s 64), but in neither State does a failure to notify affect the validity of legislation (SA Act, s 39(2); Victorian Act, s 68). The Acts differ on who bears the burden of engagement. Beyond the annual address each body makes to Parliament (SA Act, s 38; Victorian Act, s 64), South Australia gives the First Nations Voice the stronger right to be heard, allowing it to address either House on any Bill as of right (s 40), whereas the First Peoples’ Assembly may speak on a Bill only by invitation (s 70). Victoria places the onus instead on the Bill’s sponsor, who must table a Statement of Treaty Compatibility (s 66). As with notification, a failure to do so does not affect the validity of the resulting Act (s 68).
With respect to the executive, the Acts are almost interchangeable. Each body meets with Cabinet at least twice a year (SA Act, s 43; Victorian Act, s 78), receives at least two briefings a year from senior officials (SA Act, s 45; Victorian Act, ss 86–87) and can hold an annual engagement hearing with Ministers, with a published record (SA Act, s 46; Victorian Act, ss 80–82). Each may also report to Parliament, and the Minister must respond within six months (SA Act, s 41; Victorian Act, s 74). None of this, however, allows either body to make the government act on its advice.
Functions and funding
The sharpest differences lie in what each body can do and how secure its money is. The First Nations Voice’s functions are advisory, accompanied by provisions for a First Nations-led review between the third and fourth anniversaries of commencement (SA Act, s 50). In contrast, Gellung Warl exercises broader functions: the Assembly possesses limited rule-making power regarding the certification of Aboriginal and Torres Strait Islander identity (Victorian Act, s 32); Nginma Ngainga Wara is authorised to conduct systemic inquiries (Victorian Act, ss 103, 107–108); Nyerna Yoorrook Telkuna advances truth-telling (Victorian Act, s 121); and the Victorian Act contemplates expansion of powers through future treaty-making (s 2(2)(f)).
The funding arrangements for each institution play a critical role in shaping their stability and independence. The First Nations Voice relies on allocations determined at the Minister’s discretion following consultation (SA Act, s 48), leaving its financial viability susceptible to shifts in executive priorities without the need for legislative approval. In contrast, Gellung Warl’s funding is a standing appropriation fixed in the Victorian Act, up to $72.179 million for 2028–29 and rising each year after that (s 144). Gellung Warl therefore does not depend on annual budget decisions, which narrows the executive’s room to cut its funding, though the appropriated amounts are ceilings rather than floors. A government could reduce the First Nations Voice’s resources at will; reducing Gellung Warl’s would be harder and far more visible.
Amendment and repeal
The SA Act says nothing about its own amendment or repeal. The Victorian Act adds only a procedural step: a member proposing to repeal the Act or abolish Gellung Warl must table a statement on whether the Assembly and the Treaty Authority were consulted at least six months beforehand, and how their responses were considered (ss 186–187). Even that step can be skipped, since a failure to comply does not affect the validity of the repealing law (s 189).
On the face of the legislation, then, the two institutions are equally exposed. Queensland shows how quickly such exposure can be exploited. When the Path to Treaty Act 2023 (Qld) was repealed in 2024, the treaty process ended with it, because no agreement had yet been reached that could outlast the Act.
What repeal would mean
If the SA Act were repealed, the First Nations Voice would go with it. Nothing in South Australian law would give the First Nations Voice, or the relationship it represented, any continuing legal form. The work of the First Nations South Australians who designed the First Nations Voice and served on it would not be erased, but no instrument would remain to point to.
Victoria’s position is different because the Treaty is a separate instrument and the State’s commitment to Gellung Warl is written into it. The parties record their intention that Gellung Warl ‘will play a central part in the democratic life of the State’ and ‘grow and thrive as the representative structure for First Peoples’ (cl 5). They recognise that it is to ‘form an enduring part of the democratic landscape of Victoria’, and that the Assembly is to be a ‘self-determined, democratically elected, enduring institution’ (cl 7.2(c)(iii), (d)(i)). The Victorian Act itself is described as only ‘the first step’ (cl 16(b)).
In my view, those clauses make Gellung Warl’s durability a term of the agreement. In South Australia, whether the First Nations Voice endures is a question for Parliament alone. In Victoria, the State has already promised that Gellung Warl will endure, so abolishing the institution would not only repeal the State’s own legislation but contradict what the State had signed.
The Treaty also provides the normative grounding for reading the Victorian Act, which has as one of its objects giving effect to the Treaty (s 2(1)(a)). Repeal would not remove that relational framing. If anything, without the Act, the Treaty would carry more weight as the statement of what the State has committed to, even if that effect is political and relational rather than legal.
There is, admittedly, a complication. The Treaty provides that if it conflicts with the Victorian Act or the 2018 Act that began the treaty process, the legislation prevails (sch A7(a)(i)). Read one way, that makes the Treaty subordinate to, and dependent on, the Act. Read another way, it means the Act prevails only while it exists; once the Act is repealed, nothing remains to prevail, and the Treaty must be read on its own terms. Many of those terms never depended on the Act in any case – for example, sch B commits the State to immediate reforms, among them a physical marker of the Treaty in the Parliament House precinct, truth-telling in the Victorian Curriculum and a First Peoples’ Infrastructure Fund (schs B1, B2, B5), none of which repeal would touch.
The prospect of repeal thus raises a series of unresolved legal and practical questions that merit further examination:
Does the Treaty have legal force without the Act? It commenced when the Treaty Authority published a statement that it had been formally agreed, not when the legislation came into force (sch A3(c)). Harry Hobbs reads this as giving the Treaty legal effect without legislation. He also cautions that a government may not accept that it is domestically enforceable, and that the point may be tested only if Parliament repeals the Act but leaves the agreement intact.
Who would the State’s treaty partner be? Since 1 July 2026, Gellung Warl has been a party to the Treaty in place of the First Peoples’ Assembly of Victoria Ltd (Victorian Act, ss 213, 215). Abolishing Gellung Warl would remove one party, but not the agreement.
What would happen to dispute resolution? Disputes under the Treaty, including about ‘alleged non-fulfillment’ of its commitments, are resolved through a process involving the Treaty Authority (sch A1). The Authority is established under the Treaty Authority and Other Treaty Elements Act 2022 (Vic), so repealing the Victorian Act would not, by itself, remove it.
Could the State simply walk away? The Treaty contains no termination or withdrawal clause. It can be amended only after negotiation and with the parties’ written agreement (sch A5).
Hobbs’ work suggests that a court would not treat repeal as settling these questions. He describes Indigenous‑State treaties as sui generis instruments with contractual, statutory, international and constitutional dimensions. On his account, a treaty ‘cannot be cast aside in the same way that a contract can’, and courts should be wary of one party’s attempts to alter it unilaterally.
How a court would actually answer them is uncertain, but for a government contemplating repeal, that uncertainty is a cost in itself. The Victorian government would face the risk of litigation, a dispute process it cannot shut down simply by repealing the Victorian Act, and an agreement it would still have to address. A South Australian government faces none of these difficulties.
Breaking the agreement
A government determined to be rid of the Treaty would therefore have to go further than repeal, either by legislating to terminate it or by announcing that the State was withdrawing from it. Parliament has the power to do either, but doing so would be a different kind of act. Repealing the SA Act would undo a body that Parliament created. Abandoning the Treaty would mean the State resiling from a promise it negotiated and signed, and which it agreed could be changed only by agreement.
The damage would not stop with this agreement. Victoria has committed to further treaty‑making, including Traditional Owner treaties (cl 15 of the Treaty) and the transfer of more powers to the Assembly, and every future treaty partner would come to the table knowing what had happened to the first one. Hobbs and Lorne Neudorf anticipated something like this before the Treaty was concluded, suggesting that a treaty seen as the foundation of a relationship based on mutual trust and respect ‘may prove more durable than its formal legal status alone might suggest’.
Conclusion: does a treaty make a difference?
In my assessment, a treaty does make a difference, not by ensuring Gellung Warl’s legal security, but by transforming the consequences of legislative repeal. Since the Victorian Act is not entrenched, its repeal would dissolve Gellung Warl in the same way that repeal of the SA Act would disband the First Nations Voice. Yet the Treaty’s existence alters the post-repeal context. Whereas repeal in South Australia would terminate the institution without further obligation, repeal in Victoria would leave the State facing the commitments it made regarding Gellung Warl’s continuity. The State therefore faces a more complex and consequential decision: it must either uphold the Treaty’s substantive promises – even without the institution the Treaty was designed to support – or take the more disruptive path of formally renouncing the Treaty itself. Either way, it invites legal risk, political scrutiny, and reputational consequences that extend well beyond the question of institutional durability.
Experience in North America suggests that a broken treaty does not disappear. Many treaties there were breached or set aside by governments, yet they continue to exist. First Nations parties still invoke those treaties and call on the State to honour them, and courts have at times held governments to their terms (see, eg, McGirt v Oklahoma, 591 US 894 (2020)). A government, therefore, cannot simply pretend that no treaty was signed.
In that sense, the Treaty ties the institution’s survival to Victoria’s word as well as to its legislation. A future Parliament can repeal the Victorian Act, but it cannot remove Gellung Warl without also breaking an agreement that the State has signed.
These points have implications beyond Victoria. Treaties, even when they are not legally entrenched, can function as enduring frameworks that embed governmental obligations at multiple levels. Legally, the continuity of state commitments under a treaty creates uncertainty and potential grounds for ongoing dispute, complicating parliamentary efforts to alter established relationships fundamentally. Politically, attempts to rescind such agreements may erode public trust and have a chilling effect on future negotiations between government and First Nations communities. Ethically and relationally, repudiation undermines the mutual respect and shared purpose needed for cooperative governance. Accordingly, negotiated agreements such as treaties serve as both symbolic affirmations of partnership and practical constraints on government discretion. They compel greater transparency, deliberation, and accountability in decision-making processes, raising the political, procedural, and reputational costs of dismantling First Nations institutions. In this respect, the Victorian experience demonstrates that treaties can generate a complex web of enduring obligations that shape the landscape of Indigenous-State relations far beyond the legal status of any single legislative act.
The Coalition’s plans appear to recognise that repealing the Victorian Act would not be enough, since they target the Treaty as well as the Act. Its aims are to replace Gellung Warl and be rid of the Treaty, but a repealing Act achieves only the first. If the Coalition wins in November, it will ask Parliament to do more than repeal an Act: it will ask Parliament to break a treaty.
Madeleine Perrett is a PhD candidate and Associate Teacher in Law at Adelaide Law School, Adelaide University. She researches and teaches in public law, with a particular interest in constitutional law, federalism, and Aboriginal and Torres Strait Islander peoples and the law.
Suggested citation: Madeleine Perrett, ‘Voice, Treaty and Repeal: Does a Treaty Make a Difference?’ (12 November 2026) <https://www.auspublaw.org/blog/2026/11/voice-treaty-and-repeal-does-a-treaty-make-a-difference>