A non-federalist tale

The Chinatown area of Cavenagh Street, Darwin just before World War II

(This is the second in an intended series exploring Australian federalism (the first part is here). In this part I test the proposals of those who think we would be best advised to abolish the existing States and rely on a stronger central government with small regional governments or local councils. I do so by examining the real life experiences with such a system in one of the few parts of Australia that doesn’t enjoy the protection of the checks and balances provided by the federal system, namely the Northern Territory).

When Darwin’s residents began returning home in 1945 at the end of World War II, they looked forward to repairing and rebuilding their shattered homes and businesses and getting on with disrupted lives. They had been evacuated from the town a little over 3 years earlier, as Japanese forces threatened to bomb and invade after the fall of Singapore. In fact, Darwin was bombed 64 times in 1942 and 1943, although the initial bombing on 19 February 1942 was by far the worst, more intense than the bombing of Pearl Harbour by the same Japanese carrier fleet a few weeks earlier. Hence by 1945 much of the town was destroyed.

However, little did Darwin’s people know it, but they were about to face an enemy far more pitiless than the Japanese: the Canberra bureaucracy. Some public service bright spark had decided that Darwin was inappropriately located on a narrow peninsula jutting out into a huge harbour, and that its destruction and temporary depopulation provided an ideal opportunity to shift it 20 kilometres or so south around the present day suburb of Berrimah. Rather than bothering to consult with the locals (sound familiar?), the federal government simply enacted legislation (the Darwin Land Acquisition Act 1945) compulsorily acquiring all land and buildings in the settled areas of the town (the CBD, Stuart Park, Parap and Fannie Bay)!!

Returning residents found they had no title at all to their homes and businesses, and so they couldn’t safely repair or rebuild them. Some were granted short term revocable licences permitting them to occupy their own (former) properties, but many were forced simply to squat illegally in their ruined homes or in one of the many abandoned Nissen huts left behind by the troops who had occupied Darwin over the previous 3 years.

The Bank of NSW (now Westpac) finally lost patience with the inertia of the federal bureaucracy, and simply re-occupied and repaired its bombed-out premises at the corner of Smith and Bennett Streets without official permission, daring the authorities to do something about it. They didn’t, so more and more people began following suit.

Typical bomb-damaged Darwin house in 1945

Eventually, the Commonwealth thought better of its plan to shift Darwin south, and enacted the Darwin Town Area Leases Ordinance 1947. Its intention was to grant 99 year leases to residents and businesses, subject to a range of covenants and various other complex provisions. Unfortunately, very few of them were actually issued until the early- mid 50s, so Darwin’s development remained at an effective standstill. Even when they did begin issuing DTALs, the formalities surrounding transfer and other commercial activity were so unwieldy and slow that business and residential growth remained stifled for years. DTALs could be transferred as of right where all lease covenants had been complied with, but it took 4 months or more to get written confirmation of compliance, and no transfer could be registered without a compliance certificate.

By the early 1960s Canberra had given local delegations for processing of DTAL transfers, and later still most were automatically converted into perpetual leases. But it wasn’t until 1980, well after self-government, that most (those not in default of lease covenants) were converted to freehold title of the sort that most other parts of Australia take for granted. Even when I arrived in Darwin in 1983, one of the first things I was taught about the unique aspects of NT conveyancing practice was that, if a property title was a DTAL, you had to check the government list to make sure it wasn’t one of those excluded from automatic freeholding.

If you’re imagining that this was just an isolated aberration on the part of Canberra, think again. In 1973, shortly after the election of the Whitlam government, some other anonymous Canberra bureaucrats decided that Darwin’s growth and development were getting out of hand, with lots of land speculation on the outskirts (where freehold title or other forms of perpetual lease rather than DTALs by then prevailed). They managed to convince new ALP Minister for the Northern Territory Kep Enderby to exercise his compulsory acquisition powers, again without notice or consultation with locals, and acquire an area of 32 square miles extending south from the edge of Berrimah and taking in the whole of the present satellite city of Palmerston and the Robertson Barracks military complex.

The idea was that the federal government would preside over controlled land release to ensure that adequate land was available for development at a reasonable price. It probably wasn’t a bad idea, but in fact no land was ever released from the 32 square mile acquisition, until the new NT government elected at self-government in 1978 decided to embark on building Palmerston at the beginning of the 1980s. The only real effect of the 32 square mile acquisition was to confirm Territorians in their intense distrust of their Canberra masters in general and the ALP in particular (hence in part the 23 years of unbroken CLP rule that ensued after self-government).

Incidentally, Kep Enderby remains justly famous in Darwin (at least among old-timers) for his unblushing remark that the Territory should be treated as a “social laboratory” for the rest of Australia! You can’t help wondering whether Mal Brough is a distant relation of Enderby.

After Tracy

Then we come to the aftermath of Cyclone Tracy in December 1974. In early 1975 the Whitlam government created the Darwin Reconstruction Commission, and invested it with extraordinary powers to effect the reconstruction of the devastated city. Again, in an eerie repeat of the events of 1945, Darwin residents returned home to find that they were prohibited from rebuilding their own homes! The DRC mused at length about whether Darwin should be allowed to be rebuilt at all on its existing site, or whether it should be shifted far inland out of the path of destructive cyclones. It took them until August 1975 to decide that rebuilding could in fact commence, and in the meantime many residents were forced to live under canvas or in other makeshift shelters. Even after the decision to rebuild had been taken, high-handed authoritarian decision-making in Canberra, combined with bureaucratic inertia, remained the norm. As this commentary to 1975 Cabinet Records held in the National Archives observes:

Perhaps inevitably, in the months following the cyclone the Government was criticised for slow progress in re-building Darwin and for the level of bureaucracy involved. The Department of the Prime Minister and Cabinet recommended holding expenditure for 197576 to current contracts, to allow the Government to make clear decisions on the general position of Darwin in relation to Northern Australia [A5931, CL1527, pp. 2221].

Patterson acknowledged criticism that the DRC was making little visible progress, but argued that the public did not fully appreciate the work the Commission had done in revising the building code and undertaking a tender process for $60 million-worth of building contracts. Patterson also criticised the Prime Ministers suggestion to restrict expenditure, suggesting that the Commission would be severely criticised by the public who are already uncertain as to what action the Government is taking to keep its promise to rebuild Darwin [A5931, CL1527, ff 3631]. Mr J Hickey of the Department of the Prime Minister and Cabinet characterised Pattersons reply as defensive in tone [A5931, CL1527, pp. 4140].

Following the recommendation of the Ad Hoc Committee on Budget Expenditures, Cabinet approved $102.6 million for the Darwin Reconstruction Commission for 197576, but directed another Cabinet committee to plan the future of Darwin further [A5915, 1861]. As the Ad Hoc Committee put it, officials and public servants needed political guidance on such fundamental questions as Darwins future status [A5915, 1861]. After some reluctance on the part of Department of the Northern Territory to take charge [A5931, CL1527, pp. 71, 82], at a meeting in October the Committee decided that another interdepartmental committee should provide a report within 30 days to provide further guidance to Cabinet [A5925, 4076]. Clearly, Darwin was not going to be re-built in a day.

Not only was the attitude of Canberra politicians and bureaucrats a problem, so too was the attitude of DRC personnel themselves (even though it eventually had significant local representation). The Canberra bureaucrats sent up to staff the DRC often had a contemptuous attitude towards Darwin residents, believing that they knew best what was needed and that the locals were just whingeing, spoiled, ignorant rednecks (which no doubt was true of some) whose views should simply be disregarded. The attitude of this former DRC officer provides an example:

The biggest hold up was local objection to the new building code which was designed to prevent or minimise a reoccurrence of the damage. The main objection was the prohibition of construction in the tidal surge area, If Tracy had arrived on a high tide a lot of people would have drowned as well. The DRC produced its plan for the new city and invited public objections. They got 1200 and under heavy local pressure, yielded on 85 per cent. They kept modifying their strict building code, also under pressure, until they were nearly back to square one.

Apparently it still hasn’t occurred to this arrogant poobah that the complaining local residents were actually right, and knew a lot more about life in the tropics than he did. The first building code adopted by the DRC was utterly impractical, requiring houses that were expensive, over-engineered hotboxes, impossible to live in without permanent air-conditioning. Subsequent modifications haver resulted in a code that allows more affordable and appropriate design, and still ensures that houses will survive a strong Category 4 cyclone (which is what Tracy was).

As for the DRC’s initial insistence on prohibiting rebuilding in low-lying cyclone surge zone areas, that too was silly and high-handed. Can you recall any serious suggestions that the residents of Newcastle or Maitland or Gippsland should be prevented from repairing or rebuilding their homes in the wake of the recent floods earlier this year? Recent research suggests that the risk of cyclone surge on high tide in Darwin is significantly less than the risk of flooding in the Hunter or Gippsland.

One can only conclude that the federal government has adopted (and continues to adopt) this sort of high-handed, dictatorial attitude towards the Northern Territory simply, as some of Mal Brough’s advisers are reported to have candidly admitted recently, “because we can”. There is no federal division of powers here, no State government to provide any checks and balances, and to listen to local concerns because it knows it will get voted out if it doesn’t. A distant federal government with full and plenary powers, unconstrained by any federal checks and balances, can indeed do whatever it likes and treat the Territory as a “social laboratory”. That is exactly what Brough and Howard are doing at present, despite conceding that the situation in NT indigenous communities is no different from that in WA, SA or Queensland.

For those who think that the States should be abolished, and that a unitary system with a strong, benevolent central government and smaller regional governments/local councils would be a great idea and an improvement on our current federal system, examining the history of the Northern Territory over the last 60 years provides a salutary reality check. Territorians who lived through the post-war period before self-government know that the worst day under a state or territory government is better than the best day under remote federal rule.

Australia’s federal system is certainly in need of repair, but abolishing it would be a very bad idea indeed. In my next post on federalism, I’ll look at the sorts of constitutional repairs that are needed.

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.
This entry was posted in Politics - national, Politics - Northern Territory and tagged . Bookmark the permalink.

13 Responses to A non-federalist tale

  1. derrida derider says:

    AS someone from Canberra, can you please stop referring to Federal governments as “Canberra”? After all the pollies are almost all out-of-towners, and the bastards did the same sort of thing to us (99 year leases, micromanaging how we can fence our properties, etc).

  2. jimmythespiv says:

    Right on DD.

    Have you ever had the pleasure of dealing with the City Ranger’s Office ?

  3. Jacques Chester says:

    Ken for PM!

    Too true. Western Australians like to bitch about being bossed about by the Commonwealth, but they’ve got no idea how bad it can get.

    In particular:

    They managed to convince new ALP Minister for the Northern Territory Kep Enderby to exercise his compulsory acquisition powers, again without notice or consultation with locals, and acquire an area of 32 square miles extending south from the edge of Berrimah and taking in the whole of the present satellite city of Palmerston and the Robertson Barracks military complex.

    My parents were diddled out of a bush block they had already spent a lot of time and money improving. Paid a pittance because the acquisition was made in respect of a Territory under a wartime act.

    After Tracy my Dad kept away marauding beer-beggars by putting up a sign in front of his property saying “Temperance Union (NT Branch)” out front.

  4. Jacques Chester says:

    God I miss Darwin.

  5. ChrisPer says:

    DD, you have a point, and I will cease referring to the Feds as ‘Canberra’ immediately that ACT residents expel them.

    By the way, you have some beautiful capital works in your fair city.

  6. Just Me says:

    Temperance Union (NT Branch)

    Ha ha ha ha. That’s pretty good.

  7. cam says:

    Good article. I enjoyed reading it.

  8. Thank you, Ken. I’m bookmarking this link. It’s going to any people I meet who bring up the subject of “abolishing the states”.

    Why do so many people hold that viewpoint, anyway? That’s something I’ve never understood. In Canada (where I was born) there’s no move to abolish the provinces.

  9. Clive says:

    Thanks Ken – a very informative post!

    Having lived for 15 years in Brisbane (though not there now), I am also well acquainted with the parochialisms of the golden triangle and their stultifying effects – and think them every bit as regressive as you depict.

    Nevertheless, I completely disagree with your conclusion. If the problem is excessive parochialism, and I think it is, then Federation however construed offers us merely more of the same, not less. I think we need to think beyond reshuffling the way we are governed in Australia to consider what it is governed, that is, what ‘Australia’ itself is.

    As I started to suggest in the anonymous piece Nick kindly put up, I want to consider the possibility that we in Australia are not a nation at all – and that the realisation of this fact will work to unlock our collective creativity and help us envision a new and I think must better, and completely un-mediocre place for all of us.

    Obviously I can’t argue this claim in a single post – and do your excellent material justice.

    But here are some quick thoughts. For me, our continent has afforded 3 really remarkable things: the land itself and the bush; an indigenous human culture which is both profound and utterly distinctive in its connections with the first and with itself; and a place where refugees have found sanctuary and found they could through effort and industry build a life with freedoms, dignity and material prosperity and quality of life undreamed of in their homeland.

    But if each of these, none unproblematic, are infact 3 kinds of Australia, then there is a 4th kind. This 4th Australia is the one that affords the notion of Australia as a nation, and makes possible the logic of Federation or centralisation or what have you – yet it solves nothing. Whilst offering us ‘Australia’, it undermines and destroys our capacity to be anything like the Australians we are supposed to be – free, joyful, embracing of difference, celebratory,open to the world, etc. Determined by the perculiarly English contradictions of puritanism vs political conservatism, practical thinking vs meglomania, bureaucratic monumentalism vs rabid individualism, the 4th Australia makes ‘Australia’ both possible and impossible all at the same time.

    My contention is, therefore, that the parochialism your post described is not the result of the centralism that Federation can save us from (perhaps), but the result of contradictions in our Anglo heritage. And against these, and at a time when Howardism, an arch contemporary example of the 4th Australia, appears to be in decline, I think we need to explicitly reexamine so as to turn to the creativity locked up in our strengths – the 3 remarkable things I referred to above.

    My great fear is that Australians have not understood why they time and again reject the 3rd Australia (from Tampa to Keating), have practiced systematic abuse and calumny against the 2nd, and largely treat the 1st as a kitsch confection to either be offered as a diversion we do not understand ourselves to a world bemused by our attitude, or parcelled up and sold off as so much trash to interests abroad who unaccountably find it to have such incredible value, etc. Notwithstanding almost 12 years of the palpable aridity of Howardism, I fear we still have not learned to free ourselves from the self-limiting forces of the 4th Australia.

  10. Ken Parish says:

    Hi Clive

    Many thanks for the kind words. However, I’m not sure I find your analogy/metaphor of Australia as a dispersed city rather than a nation to be very helpful (or even accurate). OTO perhaps it’s because you haven’t yet developed or explained what you meant to any great extent. For me your analogy evokes images of the governance of an ancient city-state like Athens. Australia is a huge, sparsely populated country with large regional differences in stages of development, population density, climate and even ethnic and racial mix (the NT, for example, has a 30% indigenous component to its population where in most of the rest of the country it’s 1% or less).

    Those differences are much more marked than those between the citzens of ancient Athens. Moreover, the remoteness of the Canberra governors from the more far-flung parts of the country creates a probability that they will often neither understand nor be responsive to local needs and wishes (in contrast to the immediacy and responsiveness of Athenian democracy). You ascribe the problems described in this post to “parochialism”. While not denying that parochial atitudes exist in Darwin, I would suggest that the problems described here are consequences of remote, unresponsive, arrrogant centralism.

    I think the principle of “subsidiarity”, both in its socio-religious and political context, is applicable. A federal structure, especially in a sparsely populated, far flunh country like Australia with different reigons at different stages of economic and social development, provides the best assurance that government will be responsive and accountable to the needs and wishes of the people.

    Lastly, I suspect that the “4th Australia” to which you refer is simply another way of describing universal human characteristics: we are tribal creatures who seek power and dominance, and to exclude the “other” while seeking esteem and acceptance from the members of our own tribe. Those characteristics are in no sense unique to Australians (indigenous or otherwise). Liberal democratic constitutionalism, with its insistence on checks and balances (including federalism) is the most effective accommodation human society has so far found which constrains those characteristics in a way that preserves social order and stability and maximises the space for diversity, creativity and individual choice. We may aspire to the stars but our feet remain in the mud, and a workable system of governance needs to accommodate both aspiration and earthly reality.

    As Lord Acton put it, “power corrupts and absolute power corrupts absolutely”. There’s nothing about modern Australia that renders his observation inapplicable. I’m certainly open to arguments that there are better ways of ordering our society, but I’m an instinctive conservative at least to the extent that I think the burden of proof lies strongly on those who advocate a radically different system (whatever it might be). I suspect that any attempt to synthesise some sort of new constitutional/governance order based on the sorts of high flown abstractions you outline (which I assume to be partly your project) would be doomed to failure. Nevertheless, I’m certainly interested in seeing where you take these ideas in future posts or comments.

    OTO if all you’re saying is that we would be well advised to focus more on the things that unite Australians rather than those that divide us, I agree, and I also agree that Howardian governance has relied on divide-and-rule tactics to an extent that is socially unhealthy. But I don’t think that says anything at all about whether we should opt for a federal or unitary system of governance, or some other model that you might have in mind but haven’t yet explained.

  11. Alan says:

    At the press conference announcing his dismissal in 1975, Gough Whitlam said the last time it had happened was the dismissal of Lord North under George III. He then spent much of the campaign arguing that the dismissal was wrong excuse it would not be possible in Britain. The movement to abolish the states has pretty much the sae ideological roots and if adopted would have pretty much the same long-term effect.

    Australia is not Britain or England. Acting and legislating as though we were had consistently led o disaster. Rivers are just one example. Until recently Australian courts assumed our rivers were well-behaved English rivers with stable banks, no floods and a permanent year-round flow. That’s why the our rives are so drastically over-allocated and so far there’s very little sign that ‘All powers to the Commonwealth’ is going to change that.

    I’d find Clive’s point more persuasive if he turned his nation-doubting gaze to Britain itself, where the Celtic fringe is demanding and getting self-government precisely because ‘All power to London’ has always worked as badly as ‘All power to Canberra’ would.

  12. Pingback: Jacques Chester for Solomon » The Tyranny of the Faraways

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