The Northern Territory has its very own homegrown vice-regal constitutional crisis (well, controversy anyway). NT Administrator Ted Egan made some remarks about Aboriginal promised marriages on ABC TV Stateline last night, and is reported to have had a private conversation with the Chief Justice along the same lines:
Ted Egan told the ABC’s Territory Stateline that he has spoken to Chief Justice Brian Martin about promised marriages, and told him the practice is at the core of Arnhem Land culture.
“The notion is that it’s a lot of dirty old men preying on little children and that’s not how it usually worked,” he said.
“Quite often a girl would be promised to an old man and she would be in the custody of the old man’s several other wives…for a long period of her life.”
Mr Egan has released a further statement stating he never discussed specific laws with the Chief Justice, thus maintaining the separation of powers.
Here’s the text of a Letter to the Editor I just fired off to the local NT News:
Territory Administrator Ted Egan has committed a significant breach of the conventions governing vice-regal behaviour by his remarks about Aboriginal “promised marriage”, despite denials by the Chief Minister and Chief Justice.
Promised marriages are a matter of live political controversy in the general community, especially in the context of sexual assault of minors. The Court of Criminal Appeal fairly recently increased an excessively lenient sentence in the matter of Jackie Pascoe Jamilmira, a case which generated heated national debate. The NT Parliament subsequently enacted toughening amendments to the criminal law, which the Opposition Leader has mused about changing should the CLP win office.
Promised marriages are also controversial within Aboriginal society, as the Jamilmira decision discusses. The Administrator’s remarks to ABC Stateline represent only one side of that controversy.
The fact that the Administrator didn’t discuss specific laws with Chief Justice Brian Martin (as the Chief Justice is reported to have said) is beside the point. The Administrator’s remarks (assuming they were similar to those he made on Stateline) could reasonably be seen as intended to persuade His Honour that judges should take a more lenient view of sentencing offenders in under-age sexual assault cases arising in a promised marriage situation. It was utterly inappropriate for the Administrator to make such remarks, either to the Chief Justice or in public.
The constitutional convention that vice-regal office-holders don’t make comments about politically controversial subjects is very important in practice as well as principle. The present Labor government has a parliamentary majority of one. If it lost that majority (through the death, illness or resignation of a single MLA) and then lost a parliamentary vote of no confidence but refused to resign, the Administrator would be called upon to exercise his reserve powers of dismissal. Although unlikely, such a situation is not utterly implausible. That is why the Administrator must remain scrupulously silent on any issue involving political controversy. He must be seen to be neutral and above party politics.
Ted Egan is a good and very popular Administrator. No-one would want him to do a Richard Butler and be forced to resign. But he needs to understand very clearly the limits of the vice-regal role, and remain within them in future.
Lecturer in Law
Charles Darwin University