Ted puts his foot in it

tedegan.jpgThe 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:

Dear Sir,

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.

Yours faithfully,

KEN PARISH
Lecturer in Law
Charles Darwin University

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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TrueRWDB
TrueRWDB
2022 years ago

A good letter, Ken, and I hope they publish it. The tendency for Governors (etc) to comment on political issues has been increasing since Bill Hayden got rather involved during in his incumbency, and reached its peak with Bill Deane. Butler was pretty egregious in his interventions, although that doesn’t seem to be the direct cause of his demise. I don’t think having an elected President of a Republic will change this unfortunate tendency. Such an appointee would probably feel more justified in his interventions due to his directly elected status.

David Tiley
2022 years ago

Agreed on both counts. And that this is no reason to call for a sacking but just to make the rules clear. Trouble is, it is very hard to go for a “colourful” figure as Governor or Administrator and then expect the poor sod to shut up and cut ribbons.

We love them for their energy and iconoclasm and straightforwardness, and then get iffy if they put their perception of hurting human realities above convention. Mind you, I bet my perception of hurting human realities in this situation is not the same as Ted’s.

Sedgwick
2022 years ago

Tangential.

My current bath-time reading is “Sir Henry, Bjelke, Don Baby and friends” (1971 eds. Max Harris and Geoffrey Dutton). Having read the chapter on the NT (Kim Lockwood) I’m amazed that the NT wasn’t the scene of Eureka rebellion Mark 11.

I had a very sketchy impression of the administration of the NT back in the 60s (and earlier), but wasn’t aware of how short the stick was that it got the short end of. (Dangling prepositions are the new black.)

From 1922 to 1968 the Territory’s (1) federal member “did not have a vote [in the House of Reps] except on matters which directly affected the NT. Of course he couldn’t vote on money bills. No money was spent in the north. Of course he couldn’t vote on defence matters. The north was not defended and was not worth defending.”

In a dark secluded corner of my memory I can vaguely recall my matric British History and that the Reform Act in England happened somewhere around 1832. I presume the Enclosure Act has been passed and is working well in the NT.

jen
jen
2022 years ago

i love it when you lot make me laugh outloud –

– ted egan is not your ribbon cutting type – he seems to revel in participation – maybe blokes like him shouldn’t be figure heads until they are to old to move or hear – like parish –

Ken Parish
Ken Parish
2022 years ago

So you’re awake and feeling better then? Markets? Wisdom and serenity allows one just to ignore childish gibes from melodramatic hypochondriacs.

Ken Parish
Ken Parish
2022 years ago

Getting back to the topic, there’s a slightly deeper and wider dimension to all of this than I could cover in a letter to the editor. It revolves around what we as a community expect from our administrators/governors/governors-general (and eventually presidents).

Traditionally, governors (and the like) have been mostly chosen from the ranks of retired judges and military officers i.e. people with a lifetime training of institutional obedience and coping with ceremonial roles. That was an ideal profile for an office that was almost wholly ceremonial and decorative; required the holder to exercise disciplined silence whatever his personal beliefs, and unfailing obedience to the will of the government of the day; yet have an inner strength able to click over in a rare time of crisis into a role requiring extraordinary strength of character, determination and a fearlessly independent mind and spirit. Fortunately the latter qualities have seldom been tested, because one suspects many of the traditional incumbents would have been found just as wanting as Sir John Kerr.

In recent times, however, and especially since the republic debate and referendum, most people (and, it seems, governments) seem to expect governors to act as forces of unity, enunciating and helping to shape our national/state/territory core values and representing our polity to the world. Hence selection of Hollingworth, Butler, Egan etc.

But that role and expectation has been added on top of the traditional role, which was itself almost impossibly dualistic in nature. Moreover, as David Tiley put it:
We love them for their energy and iconoclasm and straightforwardness, and then get iffy if they put their perception of hurting human realities above convention.
I think we need a national debate on what qualities we want in our heads of state, and whether they’re achievable. If we want a H of S who will, as David puts it, be iconoclastic and straightforward, and will represent those values and attitudes to the world, it’s inevitable that the values and beliefs those sorts of appointees will hold will sometimes not coincide with the government of the day. Can that inherent conflict be reconciled or constrained successfully?

And do we really need to worry? Active observers of politics have always known that governors have views of their own, and that conservative appointees are much more likely to cut a government of their own persuasion more slack in a constitutional crisis situation than they would be likely to give to a Labor administration (and vice versa). That was one of the great shocks of Kerr’s actions: a Labor appointee and darling turning on his appointors and biting the hand that fed him, and doing so by breaching existing conventions and understandings in quite fundamental ways. Is there necessarily anything destablising about a governor wearing his heart on his sleeve and being a little more open about his beliefs than the traditional expectations require?

One of the problems with a more active, populist role for a H of S, I think, is that taking public stances on important (even if not exactly partisan) big moral issues is that the H of S potentially becomes an excessively popular figure in his own right, and may eventually succumb to a hubristic belief that he more truly represents public morality and has a level of democratic legitimacy that justifies him in using his powers in a much more active way to thwart the elected government of the day.

Maybe if we want to move in the direction of H of S as public moral conscience/representing our core values to the world, we need to look much more seriously and urgently at codifying reserve powers and making them enforceable. Persisting with a constitutional structure that formally vests just about ALL formal executive power in the H of S, and leaves it to unwritten and legally unenforceable conventions/understandings to turn that all-powerful role into an all-but-empty one, may well be dangerous and unsustainable if our expectations of what we want incumbents actually to do have changed so radically.

Of course, the alternative is to go back to retired judges and generals, but I sort of like the idea of a H of S who embodies, represents and helps shape national values and aspirations. It’s a valuable and necessary role given modern conditions and dilemmas, and it SHOULD be possible for a H of S to fulfill both constitutional and “values-shaping” functions if the constitutional role is much more clearly defined. It may mean we really can’t afford to keep constitutional reform on the back-burner (or in the “too hard” basket), because times and expectations change inexorably and constitutional orders (like people and nations) must either adapt or eventually die.

yobbo
2022 years ago

Isn’t that picture of Ted Egan the folk singer? Or are they one and the same?

yobbo
2022 years ago

Aha. Should have clicked the link.

David Tiley
2022 years ago

There’s a fabulous irony in here – the role that Ken articulates and I like too is the modern rationale for the monarchy.

I think some people would argue that the old Georges of the world wars occupied that role pretty well. Trouble is, the current incumbents and their likely successors are not trained for the role, have no contact with reality, are cocooned in a paradise of egomania, and are probably not very bright.

Oh, and foreigners. But the post testifies to the value of the role. All of this contributes to that great issue of identity politics, which links the role of the GG/President, our fascination with sport, and the rationale for government financing of cultural pursuits. Who are we? What should we be proud of? What do migrants have to accept about us?