This article was published at UNSW’s Gilbert & Tobin Centre for Public Law site Australian Public Law. However they seem to be having some virus/accessibility issues so I am parking the article here for the moment.
Statehood for the Northern Territory is on the national political agenda again, with the Council of Australian Governments having voted unanimously in July to support a renewed statehood process (albeit with no assurances as to the outcome). Although more recent signals from the new Turnbull administration are more equivocal, for constitutional lawyers this is a development worth following closely. No new State has been admitted or established since Federation in 1901. For others, it is an issue that produces almost universal guffaws whenever anyone mentions it, not only in the rest of Australia but among Territorians. ‘Down south’ the reaction is seemingly fuelled by a perception that the Territory is a sinkhole for taxpayers’ money inhabited by Aborigines, crocodiles, and a handful of eccentric redneck Caucasians behaving strangely in the tropical heat.
The constitutional position of the Northern Territory
However, the dismissive attitude towards statehood on the part of Territorians themselves is harder to explain. As a polity with State-like powers and functions, the Territory has significant constitutional and practical disabilities compared with the existing States.
It has also in relatively recent times suffered very real discrimination at the hands of the Commonwealth as a result of that inferior constitutional status. Any law made by the elected Legislative Assembly can be overridden by Commonwealth legislation, something which cannot occur with a State (other than through inconsistency with a Commonwealth law by reason of s 109 of the Constitution). Indeed, until the repeal of s 9 of the Northern Territory (Self-Government) Act in 2012, any Territory law could also be disallowed by executive action on the part of the Commonwealth. The Territory’s executive power conferred by the Northern Territory (Self-Government) Regulations also expressly excludes the ability to affect rights in relation to Aboriginal land (some 50 per cent of the Territory’s land mass) and uranium mining.
These disabilities are much more than merely theoretical. In 1995 the Territory’s Legislative Assembly passed the Rights of the Terminally Ill Act, the first Australian law to legalise medically assisted euthanasia. Constrained by tight safeguards, it nevertheless allowed people with a terminal illness to end their lives with dignity. The law was sponsored by then Country Liberal Chief Minister Marshall Perron and had very wide public support. However in 1997 the Commonwealth Parliament passed legislation which nullified this pioneering euthanasia law and withdrew the Legislative Assembly’s power to enact laws providing for euthanasia, a power all State Parliaments possess but have not to date exercised. The Euthanasia Laws Act 1997 (Cth) was sponsored by Howard government Minister Kevin Andrews and supported by a broad cross-party coalition of Christian politicians.
More recently, the Howard government’s Northern Territory National Emergency Response Act 2007 (aka the Northern Territory Intervention) expressly provided that Commonwealth ministerial power would override that of Territory Ministers in relation to the administration of policing, alcohol and censorship laws on Aboriginal land. In other words, self-government was effectively partially suspended over 50 per cent of the Territory’s landmass. The ‘national emergency’ pretext for the Intervention was based on a moral panic generated by allegations about child sexual abuse and related issues, many of which were later revealed as confected or grossly exaggerated. Strangely, even though it remained in force until 2012, this extraordinarily high-handed and misconceived removal of power from a democratically elected Territory government failed to generate any significant resentment among Territorians. It certainly hasn’t resulted in renewed public demands for statehood. One suspects that Territorians living in urban areas don’t much care who governs in remote Aboriginal communities, while Aboriginal people themselves don’t see any Territory government as a plausible guarantor of their rights or welfare.
The failed 1998 Northern Territory statehood push
Perhaps the history of past attempts at statehood has much to do with Territorians’ reaction of amused cynicism, disbelief and disinterest. The first Northern Territory statehood push culminated in an unsuccessful referendum in 1998 following a decade-long process starting with a Parliamentary Committee and then a joint Commonwealth/Territory working group, which presented its final report in 1996. The 1998 referendum was triggered by a promise by Prime Minister John Howard to then Chief Minister Shane Stone that statehood would be granted (albeit on unspecified terms and conditions) if Territorians voted for it. In fact the referendum failed decisively: 51.3 per cent of Territorians voting against it. A subsequent parliamentary committee report ascribed the result to:
… a lack of information and understanding about Statehood, concern about the Statehood Convention process and the events surrounding it, a lack of trust in those responsible for last year’s process, inadequate consultation, the role and approach of the Chief Minister, and a protest against the then Chief Minister and ‘the arrogance of politicians’.
Long-time statehood proponent and former Labor Deputy Chief Minister John Bailey explained the main cause more bluntly:
Chief Minister Shane Stone totally hijacked that agenda, established a Constitutional Convention that had nothing to do with all the work that had been done previously, and was then stacked in such a way that a predetermined agenda could be got through.
An equally important causative factor was opposition from Aboriginal organisations (especially land councils) and their supporters. That opposition in turn was to a significant extent due to a perception that Aboriginal interests were better protected by remaining under ultimate Commonwealth control where any changes, especially to the Aboriginal Land Rights (Northern Territory) Act 1976, would need to get through the Senate which neither major party usually controls. Aboriginal fears were hardly surprising. Successive Country Liberal governments had staunchly opposed every single Aboriginal land claim and made several attempts to get the Act watered down. Indeed the fears, concerns and aspirations of Aboriginal Territorians remain the elephant in the room for Northern Territory statehood.
Some have even suggested that opposition from conservative Christian groups, fearful that statehood might breathe new life into the just-thwarted euthanasia push, may have been another reason for failure of the 1998 referendum.
The 2004 revival of the statehood movement
Whatever the reasons, it took until 2004 for the statehood movement to be revived. In that year the Martin Labor government formed a Statehood Steering Committee, a body comprising MLAs from both sides of politics as well as broader membership from the general community. It proceeded with a thorough process of community education and consultation over a period of years, to the point where another statehood constitutional convention was in prospect by 2011. However the process faltered and then stopped dead as a result of partisan bickering in the lead-up to the 2012 Territory election at which the Country Liberals regained government after 11 years in the political wilderness. The real underlying reasons for failure of this most recent statehood process remain obscure, although former Steering Committee Secretary and now Deputy Clerk of the Legislative Assembly Michael Tatham valiantly attempted to trace the events.
‘Second-class’ statehood under the Constitution?
Other reasons for Territorians’ disinterest in statehood may include arguments from some opponents to the effect that any grant will unavoidably amount to ‘second-class’ statehood. My colleague at Charles Darwin University, Rolf Gerritsen, epitomises that attitude:
Unfortunately, whatever the results of the negotiations between the Territory and the Commonwealth, we will never be equal to the other States. That is because we will be made a State by an Act of the Commonwealth Parliament. So, even if all the issues to be negotiated … are resolved there can be no mechanism that will protect the Territory from Commonwealth intervention. This will not be a Ministerial intervention (like the 2007 NT Emergency Response) but could be via an amendment to the NT Statehood Act, like the Commonwealth Parliament did in negating the Territory’s euthanasia legislation. It is my opinion that we cannot protect the Territory from such interventions in our affairs.
In fact no-one knows whether this is the case or not, because no new State has ever been admitted or established since 1901. Accordingly the scope and meaning of s 121 of the Constitution (the most likely vehicle for achieving statehood) have simply not been explored by the High Court. Section 121 allows the Commonwealth Parliament to admit or establish a new State on ‘such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit’. The power is expressed broadly, although former High Court Justice John Toohey doubted that it would permit imposition of any terms or conditions which derogated from fundamental aspects of the federal compact, including ss 51(ii), 51(xxxi), 55, 80, 92, 99, 116, 117, 118, 119, 123. Toohey argued:
There is nothing in the Constitution which supports a confinement of these provisions to original States; on the contrary, the Constitution evinces a clear intention that a reference to ‘States’ is a reference to both original and new States.
Professor Geoffrey Sawer even argued that the High Court would be unlikely to approve terms and conditions imposed by s 121 which would disturb the federal division of legislative powers between Commonwealth and States, although that appears a more debatable proposition given that the States’ powers are residual and not expressly enumerated in the Australian Constitution. On the other hand, if the Commonwealth chose to withhold a particular subject of legislative power from a new State (for example euthanasia or regulation of uranium mining) under s 121, could it constitutionally retain that power for itself where it only possesses it by virtue of the territories power – s 122? Section 121 itself does not suggest any such power. There may be a lacuna in legislative power in such a situation, an outcome which suggests that Sawer’s interpretation may have some force.
Chris Tappere concluded, essentially through an originalist analysis of the Convention Debates of the 1890s, that the ‘terms and conditions’ aspect of s 121 was only intended to confer a clear power on Parliament to fix a new State’s level of parliamentary representation in both the House of Representatives and Senate (and not to authorise imposition of any wider restrictions). However the presence of the word ‘including’ in relation to ‘terms and conditions’ presents a textual hurdle for such an interpretation.
Whatever constitutional restrictions may be held to constrain the Commonwealth’s power to impose terms and conditions upon a grant of statehood under s 121, the other obvious question is whether those terms and conditions could be revisited by the Commonwealth and altered or removed subsequent to admission or establishment of the new State. Gerritsen clearly believes that the Commonwealth could indeed do so, hence his conclusion that the Northern Territory will unavoidably be a second-class State.
Contrary to Gerritsen’s opinion, some constitutional lawyers, notably Sawer, Whalan and Howard, have expressed the view that the Commonwealth’s power under section 121 is effectively spent once exercised in relation to a given new State. Similar interpretations have been applied by the High Court to Parliament’s power to establish the High Court of Australia (Dalgarno v Hannah (1903) 1 CLR 1) and to the right to vote seemingly conferred by s 41 (R v Pearson; Ex parte Sipka (1983) 152 CLR 254).
Moreover, the High Court’s reasoning about the scope and meaning of the words “directly chosen by the people” in Constitution sections 7 and 24 (see e.g. Roach v Electoral Commissioner (2007) 233 CLR 162  –  per Gleeson CJ) rests in part on the proposition that although those sections permitted the legislation of universal adult suffrage, it could not now be reversed. The reasoning was not based per se on the operation of those sections being “spent” but rather that the evolution of cultural and historical understandings meant that anything less than universal adult suffrage could not now be regarded as direct choice by “the people”. Some such reasoning path might well be applied to conclude that the terms and conditions of statehood once granted under section 121 could not later be altered because that would be antithetical to the very concept of a State in a federation like that of Australia.
That would certainly be a common sense interpretation, because holding that the power to impose terms and conditions is instead a continuing one would for most practical purposes render the position of a new State almost indistinguishable from that of a Commonwealth territory. Nevertheless, some constitutional lawyers, notably Toohey and Peter Bayne, have drawn a similar conclusion to Gerritsen. Indeed Toohey observed that ‘it is not easy to support’ Sawer’s interpretation that the power is spent after admission of a new State.
Conclusion: A Time for Reflection
All of these and many more constitutional, legal and political issues will need to be debated and resolved if a renewed statehood process does indeed get off the ground. My own view is that, whatever its substantive outcome, a statehood process will at least serve as a trigger for community reflection about appropriate governance structures for the Northern Territory. The existing Territory governance structure was established by the Commonwealth in 1978, along essentially identical lines to existing States, and with little or no thought as to whether that was appropriate for a huge, largely undeveloped area of land comprising 20 per cent of Australia’s land mass but with a tiny population, one-third of whom are Aboriginal. The rest are to a significant extent transient Territorians, and comprise among the most multicultural population mixes in the nation. Nearly everyone was born somewhere other than the Territory, and many if not most of them do not regard it as their permanent home. That may indeed be the most powerful factor explaining Territorians’ evident disinterest in statehood. Nevertheless, after a 37-year experiment with the existing NT self-government model, it is time for us to reflect on how that model could be improved, especially in light of persistent political chaos and instability over the last three or four years. A statehood process is the obvious vehicle for that community reflection.
 John Toohey, ‘New States and the Constitution: an Overview’ in Peter Loveday and Peter McNab (eds), Australia’s Seventh State, (Law Society of the Northern Territory and Australian National University North Australia Research Unit, Darwin, 1988) 8-9.
 Geoffrey Sawer, ‘The Northern Territory: Constitutional Status, Present and Future’, in Richard Herr and Peter Loveday (eds), Small is Beautiful: Parliament in the Northern Territory, (Australasian Study of Parliament Group and Australian National University North Australia Research Unit, Canberra, 1981), 98;
 Peter Bayne, ‘Drawing Up a New Constitution: Consultation and Conventions’ in Peter Loveday and Peter McNab (eds), Australia’s Seventh State, (Law Society of the Northern Territory and Australian National University North Australia Research Unit, Darwin, 1988) 111.