I had a bit of a cyber-chinwag on Twitter this morning with a couple of other legal academics about the rather obscure topic of the torts of maintenance and champerty.
Maintenance and champerty are explained in this article at NSW Lawlink:
Maintenance is the ancient common law crime and tort of assisting a party in litigation without lawful justification. Champerty is an aggravated form of maintenance, in which the maintainer receives something of value in return for the assistance given. As stated above, the crimes and torts of maintenance and champerty were recently abolished in New South Wales.1
My reference to a case I ran where we obtained an injunction against the entire Northern Territory Cabinet is worth expounding in a bit more detail. 2
They’ve been abolished in Victoria as well, and (I think) in most other States as well, but in the 1980s they still existed in the Northern Territory. ↩
I thought I might have told this story before at Troppo but I can’t find it from a quick Google. ↩
Last night Jen prevailed on me to watch an episode of the doco series The First Australians. Such programs tend towards the irritatingly sanctimonious and question-begging in my experience, and that may well be true of many of the episodes of this series too. However the one Jen had me watch (see YouTube video above – also see part 2, part 3, part 4, part 5) was really excellent. It emphasised dramatically just how adaptable Aboriginal culture once was to to the dominant culture of the White invaders. Simon Wonga and William Barak of the Wurundjeri clan near Melbourne were truly heroic figures about whom all Australians should know more.
Those same features of adaptability (and in particular willingness to move and work to take advantage of economic opportunity) were also evident in the initial responses of Northern Territory Aboriginal people to European encroachment. Among other things they became the economic backbone of the pastoral industry.
Eventually the relentless racism of individual and systemic responses to Aboriginal people suppressed that inherent adapability and reduced most Aboriginal people to a state of sullen, despairing passivity. Even when racist responses began to be replaced by entirely benignly-motivated self-determination policies over the last three or four decades, the results were anything but positive. In fact the conditions of Aboriginal people in Australia’s north have continued to deteriorate on just about all objective measures. Attempting to understand why, and what might be done to change the situation for the better, is a question that has obsessed me for much of the 28 years I’ve lived in Darwin. I can’t comprehend how that would not be the case for anyone of conscience surrounded by the evident misery, violence and despair of so many Aboriginal people.
I’ve observed in previous posts that the answers are unlikely to be simple or short term, and that they will certainly involve Aboriginal people themselves in taking responsibility and confronting and adapting aspects of their own culture which militate against successful adaptation. What the story of Wonga and Barak brought home for me, though, was the extent to which Aboriginal society once did possess the necessary adaptive qualities. Moreover, and despite the appalling health and educational outcomes for two successive generations of contemporary Aboriginal adults, there is no reason why those qualities of adaptability should not manifest themselves again, if we remove the perverse incentives in our education and welfare systems which create and perpetuate welfare dependency. Although, as I say, solutions will be both multi-faceted and long-term, thinking about Wonga and Barak convinces me that Noel Pearson’s identification of welfare dependence as the key issue may well be correct. On the other hand, ANU’s David Martin persuasively argues that Pearson overstates the extent to which Aboriginal people will succeed in achieving the necessary adaptation unaided, and underestimates the extent to which co-ordinated but respectful government interventions will continue to be necessary.
Retiring senior NT bureaucrat Bob Beadman outlines the welfare dependency syndrome succinctly, as The Australian‘s Nicolas Rothwell writes:
Dr A.M. Dockery
Centre for Labour Market Research, Curtin University
Research based on data from the 2002 National Aboriginal and Torres Strait Islander Social Survey found evidence of a positive link between Indigenous Australians’ attachment to their traditional culture and a range of mainstream socio-economic indicators, contrary to the common assumption that traditional culture is a barrier to achievement. This paper uses data from the 2008 NATSISS to further explore the concept of ‘cultural attachment’, breaking it down into four constituent elements: participation in cultural events and activities, cultural identity, language and participation in traditional economic activities. The positive effects of cultural attachment on mainstream socio-economic indicators are confirmed, and now found to extend to subjective wellbeing. This is important as subjective measures of wellbeing are based on Indigenous peoples’ own values and preferences. Indigenous Australians who identify more strongly with their traditional culture are happier and display better mental health, but at the same time experience more psychological stress due to stronger feelings of discrimination. The findings suggest that traditional cultures should be preserved and strengthened as a means to both improving the wellbeing of Indigenous Australians and to ‘closing the gap’ on mainstream socio-economic indicators.
I have distinctly ambivalent views about Statehood for the Northern Territory, as long-time readers will have noted. I even mused not so long ago about whether the existing grant of self-government should be revoked and other governance models explored instead. More recently I recanted from that view, but I still have significant doubts about Statehood (explored over the fold). This still makes me several degrees keener about Statehood than most Territorians, who as far as I can tell don’t give a rat’s backside (and who can blame them?).
Despite this, Statehood is a dream that NT politicians cannot afford not to profess to support, even though it was rejected by referendum as recently as 1998. After a long and somnolent period of gestation in the Statehood Steering Committee (SSC), the NT government is apparently about to announce within days that there will be a Constitutional Convention before the end of this year. Its job will be to produce a draft state constitution in about 7 days flat (with the assistance of a couple of draft documents whipped up by the SSC). The draft constitution will then be circulated for public consultation over 12 month before the Convention reconvenes to adopt a final constitution which will then be put to the federal government of the day in an endeavour to convince it to enact it under Constitutions 121 (new States).
However, despite deep personal ambivalence, I’ve decided that as an academic constitutional lawyer, I really should take the process rather more seriously, even though I suspect it will fail again as it did in 1998. There hasn’t been a new State established or admitted to the Australian federation since it began in 1901, so the process itself will be a fascinating one from numerous viewpoints.
This post is an effort to stimulate reader interest in participating in the conversation and even the process of creating a draft NT State Constitution. I’m fairly sure I can ensure that it will at least get tabled at the actual Constitutional Convention (although whether anyone takes it seriously is another question). Apart from anything else, this is a textbook example of a citizens’ Gov 2.0 initiative, so no doubt Nicholas Gruen will be watching it with interest. Of course, whether it will generate enough interest to create real conversation or a real collaborative constitutional drafting effort is much more questionable. Still it can’t hurt to try.
Anyway, my candid appraisal of the merits and difficulties of the Statehood push are over the fold.
This year is the centenary of the handover of control of the Northern Territory to the Commonwealth by South Australia in 1911. It’s a fascinating but not very well known story with many dimensions.
I was recently asked to deliver a paper to the Northern Territory Historical Society about sundry legal, constitutional and political aspects of the handover and their relevance to subsequent political history and governance. I took the opportunity of making a multimedia recorded version of the presentation for CDU students. However I thought I might also share it with any interested Troppo readers. Apart from being a really interesting story in itself, the presentation will give you some idea of how we go about delivering lecture material to our students at CDU Law School (a topic recently discussed here).
Warning - the presentation lasts a bit over an hour but you can pause it whenever you like and navigate freely to sub-topics that interest you.
Long-time readers may note that the introductory music is from Jen’s and my wedding album and was performed by a Melbourne-based band led by a veteran pseudonymous Troppo commentator who should remain nameless for similar reasons to the Dark Lord of Mordor.
I am hoping one or more of the economics and public policy gurus who read and write for Troppo might be be able to help me with the following question:
Does the Commonwealth Grants Commission analyse and report on the way States and Territories actually spend their untied grant (GST) funding i.e. whether and to what extent they actually spend it on the areas in respect of which the State/Territory’s level of need for funding purposes was calculated? Or does it just assess the State’s notional revenue-raising capacity and the amount that would notionally be needed for that State to provide its residents with roughly the same level of government services and infrastructure as other States, but not assess whether untied funds are then spent on remedying the services and infrastructure deficiencies on which the funding formula is based?
I should explain the reason for my query. I’m researching a paper dealing with contemporary NT governance and related issues in the light of the centenary of the handover of the Northern Territory from South Australian to Commonwealth control in 1911. One of the assertions that is frequently made about NT governments of both political persuasions is that the NT is generously funded by the Commonwealth in large measure to remedy Aboriginal disadvantage, but in fact successive NT governments have diverted much of that money to “pork-barrelling”urban electorates where government is won and lost. This recent article by veteran NT-based Murdoch correspondent Nicolas Rothwell puts the case eloquently:
Kate 
CDU Law School 