Announcing the People’s Northern Territory Constitutional Convention wiki

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 Constitution s 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.

Accordingly, and in a bid to open up the constitution-making process beyond the rather stodgy steps recommended by the SSC (and about to be announced),  I’ve set up a People’s Northern Territory Constitutional Convention wiki containing a draft constitution fairly closely based on the Constitution of Queensland 2001 (although with some significant changes). The wiki also contains numerous links to relevant constitutional resources, and a discussion section where I canvas a range of key issues for Statehood.

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.

Veteran Territory-based columnist Nicolas Rothwell of The Australian newspaper recently called for the abolition of NT self-government:

The case today is not for statehood but for emergency administration, a royal commission into the Darwin regime’s financial management and a reshaping of the Territory: the capital turned into a city-statelet, and the hinterland declared a zone of special commonwealth responsibility — or even placed, eventually, under international control, if Australia remains unable to meet its obligations to its Aboriginal people.

Rothwell’s call is based predominantly on a proposition which is at the very least contestable, namely that although the Territory is generously funded by the Commonwealth in large measure to remedy Aboriginal disadvantage, successive NT governments (both CLP and Labor) have actually diverted much of that money to “pork-barrelling” urban electorates where government is won and lost:

One feature of the NT system plays a big part in these disquieting outcomes. A valuable new book of essays edited by Rolf Gerritsen, a former senior public servant in Darwin, examines the bizarre social and economic patterns of the north. His own piece … sets out the method by which the NT government diverts Commonwealth Grants Commission funds from the priority areas of disadvantage to other, more politically useful domains. Gerritsen … writes of “an increasingly sclerotic post-colonial state” redistributing funds provided for needy Aboriginal Territorians to “the expatriates” in … The northern capital groans with leisure facilities far beyond its reasonable needs: stadia, water parks, the notorious harbourside wave pool to re-create Bondi in the tropics. This pattern of funding diversion was present long ago but it has accelerated since the introduction of the GST revenue stream. Accountant Barry Hansen, treasurer of NTCOSS, has compiled the detailed figures. They are beyond belief, and yet they are incontrovertible. Canberra provides more than 80 per cent of the NT’s annual budget of almost $5 billion and much of this inflow is specific remote area remediation money, intended to help disadvantaged communities. Since 2001 the NT has channelled about $2bn from Aboriginal area spending. In the latest year alone, the shortfall in welfare spending was $200m.

In fact Hansen’s claims are anything but “incontrovertible”.  My own suspicion is that there probably is a certain amount of diversion of funding from bush to urban areas, but nowhere near as much as people like Gerritsen and Hansen assert.   It depends on what proportion of urban infrastructure and services is legitimately notionally attributed to meeting Aboriginal health, welfare and other needs and demands.  For example, although Aboriginal people comprise just over 30% of the NT’s population, they are around 80% of the clientele of the Royal Darwin Hospital and most if not all other public health facilities in Darwin and Alice Springs.  Similarly with the Corrections, Police and Child Protection budgets.  One might therefore argue that it is reasonable to attribute 80% of NT government spending in those areas as notionally acquitted against Aboriginal needs.  The disagreement between successive NT governments  and commentators like Gerritsen and Hansen appears to come down to the fact that the latter dispute the legitimacy of the extent of this notional debiting.

Fortunately a recent Productivity Commission report commissioned by the Council of Australian Governments focuses on this very issue.   It does not bear out the claims of Gerritsen and Hansen, at least not to any significant extent.  The report confirms NT government claims that it spends some 53.9% of its total budget on Aboriginal Territorians who comprise just over 30% of the population.   Just as importantly, it shows that the NT spends a greater amount per head on its Aboriginal people than any other State or Territory.   Nevertheless, the fact that the Territory has such a small population spread over such a vast area means that it needs to spend more per head to provide the same level of services to Aboriginal people as the larger States.  The Grants Commission formula provides very generous funding to the Territory to allow for such diseconomies of scale. However, if there is any sort of diversion of funds from bush to city, it should show up in the ratio of Aboriginal/non-Aboriginal spending. On that measure the Territory ranks a little behind Western Australia and South Australia but above Queensland.  This suggests, albeit equivocally, that there might be some diversion of funding as Gerritsen and Hansen claim, but if so it is very modest indeed.

It is also at least conceivable that the Territory’s record on funding Aboriginal programs looks better now than it did only a few years ago.  Clare Martin was deposed as Chief Minister in 2007 in considerable part due to an internal revolt by Indigenous MLAs (especially Matthew Bonson) concerning her handling of Aboriginal Affairs.   It is possible that the pattern of spending looked rather different at that time, until the Howard government’s Intervention in 2007 compelled a major re-adjustment of priorities.

Nevertheless, claims of neglect of Aboriginal affairs do not look substantive enough in themselves to justify the drastic step of abolishing self-government, effectively reverting to the constitutional position the Territory was in immediately after handover to the Commonwealth in 1911. As discussed, the Commonwealth’s record of stewardship of the Territory was hardly a glorious one.

This author also flirted publicly not so long ago with the possibility of abolishing self-government in it current form and exploring other governance options more suited to the unique characteristics of the Territory.  However my reasons were rather different from those of Nicolas Rothwell.  A succession of governance fiascos including the partial neglect of Aboriginal affairs that gave John Howard the pretext to orchestrate the 2007 Intervention; subsequent failures to remedy serious mismanagement in child protection services; seeming inability to manage the three-quarters of a billion dollar Commonwealth-funded Strategic Indigenous Housing and Infrastructure Program (SIHIP) in a competent manner; apparent inability to manage Darwin’s electricity supply so as to avoid northern suburbs blackouts of almost third world frequency and duration; and regulatory slackness leading to Australia’s worst oil spill from the Montara well in the Timor Sea: all contributed to my tentative conclusion that perhaps it was time to revisit the conferral of self-government.  After all, even today the Territory’s population is smaller than many local government areas “down south”.  It would hardly be surprising if the Territory was unable consistently to attract the talent needed to operate a full range of government services in a competent manner.

Nevertheless, most of the above governance crises now seem to have been brought under control.  Moreover, the Henderson government actually compares quite favourably with the antics of the recently deposed New South Wales Labor government (although some may suggest this is a fairly low hurdle to surmount).  Perhaps I was too hard on Labor, an unwitting victim of the Tropical Ambivalence Syndrome myself.  A more balanced assessment would conclude that the Territory remains a peaceful, prosperous, progressive place which continues to enjoy respectable economic growth rates despite a development hiatus pending final investment decisions on the huge Inpex gas project.  The Territory is a long way indeed from the tiny, stagnant backwater it was in 1911.  Moreover, a significant part of the seeming mismanagement by both Labor and CLP government flows at least in part from attempting to remedy the effects of over a century of neglect by “colonial”rulers, first South Australia and then from 1911 the Commonwealth.  The new NT government started behind the 8 ball on self-government in 1978 and successive governments have been forced to juggle priorities, sometimes a bit desperately, ever since.  Rothwell’s claims of opulent facilities and over-funding are grossly exaggerated and completely ignore this background

This essentially positive if qualified conclusion does not deny the need to examine the current governance model to assess whether it is best suited to the needs of a unique place like the Northern Territory.  Now is the time to begin considering such questions given that the Statehood Steering Committee recently completed its final report and has recommended that a Constitutional Convention be convened by the end of 2011 to draft a constitution for a re-imagined new State.

My own view is that Statehood is both desirable and inevitable in due course, but it is not critically important that it be achieved in the near term.  One may also doubt that a proposal for Statehood for the Northern Territory would presently meet an especially favourable reception from the Commonwealth and other States in light of recent public controversies about the competence of the NT government.  Resentment on the part of resource-rich Western Australia about the fairness of the current GST revenue distribution formula administered by the Commonwealth Grants Commission may also be a factor, given that the Territory is a net beneficiary of that system.

Achieving Statehood is not urgent. Although enthusiastic proponents of Statehood make much of events when the Commonwealth Parliament has overridden Territory laws, the fact remains that there have only been three such occasions in the 33 years since self-government in 1978.  Moreover, although the Commonwealth probably could not have intervened through direct legislative action at least in relation to euthanasia  had the Northern Territory been a State, it could almost certainly have achieved the same objective by the more indirect but equally effective means of threatening the NT State’s Commonwealth grant funding as John Howard did to all the States and Territories to get his own way on uniform national gun laws in the wake of the Port Arthur massacre.  This is hardly a dazzlingly original insight.  It was first advanced by Sir Alfred Deakin in a letter to The Age newspaper in April 1092:

The rights of self-government of the States have been fondly supposed to be safeguarded by the Constitution. It left them legally free, but financially bound to the chariot-wheels of the central government. Their need will be its opportunity.

The fond suppositions to which Deakin referred appear to be implicit in at least some recent pro-Statehood propaganda.  It is essential to success that any renewed Statehood debate be conducted in more sober, less hyperbolic terms.  A new NT State will not be safe from future Commonwealth interventions if a future federal government desires a policy objective enough to play the “withdrawal of grant funding” card.  Nor will the new State receive more generous federal funding than at present, because the Territory is already funded as a State under the Commonwealth Grants Commission formula.  Nor is it likely that a new State with a population of only around 230,000 people will be granted significant additional representation in either the House of Representatives or the Senate. Statehood is certainly the next logical step in the Territory’s constitutional development but its immediate significance will be largely symbolic.

That said, we should be careful to choose a governance structure that best suits the Territory’s unique geography, demographics and culture.  A major problem with the rejected model of 1998 is that it was largely just an unimaginative carbon copy of the constitutions of the existing States.  It was also plausibly alleged to represent a ‘hijacking’ of the envisaged democratic Statehood process by then CLP Chief Minister Shane Stone, as former Labor MLA John Bailey observed:

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.

The Statehood Steering Committee apparently hopes to avoid that pitfall by putting forward no agenda at all, and leaving it entirely to the proposed Constitutional Convention to draft a new constitution from scratch, albeit “informed by the views which were expressed by Territory residents” at a series of “roadshows” held by the Committee around the Territory during 2010.

I must confess to a degree of concern about the hasty and seemingly unstructured constitution-making process the Steering Committee appears to envisage. It advocates two Conventions separated by about 12 months of public consultation.  The first is to be convened before the end of 2011 and is expected to produce a draft constitution from scratch within 10 days (albeit with help from some draft options prepared by the SSC).  In my view that is insufficient time to create a coherent, workable, carefully considered draft constitution.  Although this truncated timetable is in some respects an understandable reaction to the “agenda hijacking” concerns voiced by people like John Bailey, I suggest it is a significant mistake.

The initial drafting process for the Commonwealth Constitution extended over a period of some 5 ½ weeks from 2 March to 9 April 1891.  With due respect to the yet unelected delegates to the Territory Convention, to attempt to finalise a complete draft in just 10 days appears unduly optimistic to say the least.  Such a process runs a serious risk that the Convention will produce a metaphorical camel (said to be a horse drafted by committee).  Alternatively, and perhaps more probably, such a short-time frame will ensure that any delegates with a well-written draft constitution prepared in advance will have a disproportionate influence on the outcome.  By way of example, even though the 1891 Convention had a significantly longer period to create a draft document, Andrew Inglis Clark arrived with a completed personal draft constitution, which partly as a result is closely reflected in the provisions of Chapters II and III of the Commonwealth Constitution and indeed to a significant extent in up to eighty percent of the Constitution we have today. A cynic might suspect that the Steering Committee recommended such a tight timetable for the First Convention to enable the current NT government to prosecute a “predetermined agenda” just as effectively though rather more subtly than Shane Stone did in 1998.  It is unliekly that most delegates will be able to get their heads aroud the issues and achieve any sort of sense of “ownership” of the document the Convention produces, at least unless they get some earlier exposure to it (hence the Peoples Convention wiki).  As a naïve optimist I would prefer to assume a more benign explanation (e.g. most delegates won’t be able to afford more than a week or so off work to attend the Convention) and express the hope that the proposed Northern Territory Convention Committee will take on board these suggestions and allow an adequate amount of time at the First Convention for a genuine constitution-making process to occur.

One would hope that the Convention will also be informed by a keen-eyed appreciation of evident key issues.

First, the needs, interests and perceptions of remote Indigenous Territorians differ radically from those of the urban-dwelling non-Aboriginal population.  For example, some appropriate constitutionally-based mechanism will need to be found to inhibit the undoubted risk that State governments of the future will be tempted to divert funding from remote communities to more populous urban centres where elections are won and lost.  Even accepting (as I do) that the federal funding diversion allegations of  Rolf Gerritsen and Barry Hansen are seriously exaggerated, there is clearly an inherent electorally-driven temptation towards bush-city funding diversion given the great disparity in numbers of seats between urban and remote regional areas.

Secondly, Aboriginal support for a new State will almost certainly require constitutional recognition of land rights, language and customary law. On the other hand there will also need to be provisos concerning customary law practices which breach Australian law and international human rights standards in a fundamental way e.g. some violent tribal punishments, some “promised marriage” situations involving under-age girls. Such issues are difficult and potentially divisive.

The Stone CLP government deliberately ducked this issue in 1998 and declined to include constitutional protection of such rights.  It was widely hypothesised at the time that this was a significant factor in the Statehood referendum’s defeat. The view of the two major land councils appears to have been that, in that in the absence of constitutionally entrenched guarantees, Territory governments simply could not be trusted to honour Aboriginal rights.  On the other hand, the Howard federal government’s coercive imposition of the Intervention in 2007 together with the Rudd/Gillard government’s continuation of its main elements may ironically have significantly changed Aboriginal perceptions in that regard.  The Commonwealth cannot be trusted either.

Thirdly, having regard to past oppression, it is likely that garnering Aboriginal support will require a more general constitutionally-entrenched bill of rights, although there is significant opposition to any bill or charter of rights among some politicians and parts of the broader community.  Like land rights and customary law, this aspect could easily cause the Statehood ship to founder for a second time.  Careful and widespread consultation will be required for a rights-enshrining constitution to be embraced by a clear majority of Territorians.  Apart from land rights, language and customary law rights, any general human rights guarantees should be confined to those listed in the International Covenant on Civil and Political Rights, to which Australia is a signatory.   General social, economic and cultural rights (e.g. those specified in the International Covenant on Economic, Social and Cultural Rights) should not be included.  All such rights have resource implications and are in most respects a “zero sum game” i.e. for every winner there is a loser flowing from court decisions as to which such rights should have precedence.  Such rights are inherently controversial, contestable and therefore political in nature.  Because of their resource allocation implications, they also require detailed advice and policy input from public servants, relevant experts and industry and interest groups.  These are questions for the political arms of government not the courts. Their inclusion in a draft Territory State Constitution would doom it to referendum rejection.

Fourthly, the reality of the Berrimah Line syndrome and perceptions of Darwin’s neglect of the Alice Springs community will need to be acknowledged and accommodated in some tangible form in the new constitution.

Lastly, the 21st century reality of federalism should be embraced.  By virtue of its effective control of the national purse-strings discussed earlier, the Commonwealth can and does exercise control of the general policy direction of State stewardship of a range of areas which are ostensibly wholly State constitutional responsibilities. Education and health are the most obvious examples.  Moreover, in an increasingly complex and interdependent world in which Australia is subject to a huge range of international human rights, environmental and economic treaty obligations to an extent that our Founders could not have envisaged, a compelling case can be made for a contemporary re-fashioning of the 1901 federal division of powers. One of the major benefits of a federal constitutional structure is said to be the potential for States to experiment with a range of governance structures which may then be adopted more widely if successful.   Perhaps Northern Territory negotiators could consider offering formal recognition in the new Territory State Constitution of the Commonwealth’s over-arching policy co-ordination role, in exchange for effective guarantees of security of future federal grant funding.   Vertical fiscal imbalance and the Commonwealth’s effective control of the national purse-strings is a much more significant impediment to genuine State sovereignty than the formal step of conferral of Statehood by the Commonwealth Parliament under Commonwealth Constitution s 121.

The Territory has come a long way in the century since 1911, but there is a long way still to go to reach constitutional, economic and social maturity.  Quite a few of us remain beset by Tropical Ambivalence Syndrome about the prospects of achieving such maturity any time soon.

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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13 years ago

Just a comment about the power issues. If a zone substation of the size of Casuarina failed in say Sydney or Melbourne, there would have been at least three or perhaps four zone substations neighbouring that could have taken the laod and maybe nobody would ever have noticed. When you only have a couple of zone substations, such failures are catastrophic.

That is not to excuse Power and Water since the independent report into that failure made some pretty damning conclusions. Rather, I am suggesting that maybe other jurisdictions are in the same boat, but their greater interconnectedness, redundancies and lack of lightning strikes cover it up a whole lot better. (For example, the failure of the power supply to Auckland about thirteen or fourteen years ago was no less spectacular than the Casuarina zone substation failure).

If that were the case, then maybe it is sub-optimal scale that is the problem rather than governance. This is also a problem in areas such as various sorts of technical expertise such as numbers of hospital specialists or specialist engineers, or perhaps even specialist social work professionals. With a small population you cannot have twenty oncologists, but if you have only two, one leaves, that means you have lost fifty percent of your specialisation, not to mention specialist corporate memory etc etc.

Copy that problem through the whole social apparatus, and you get a management problem out of proportion to the size of the jurisdiction…and nothing to do with governance or statehoodedness.

I am not saying that this excuses the examples of poor performance that can be cite, merely to suggest that governance per se might not be as big a problem as one imagines. I mean, was governance any better when the place was run from Canberra?

13 years ago

Camels are elegant and beautiful creatures uniquely adapted to their ecological niche. Abandon your equine chauvinism when discussing the merits of committees!

13 years ago

The other thing that struck me was with the recent problems in Yuendemu. In this case, people travelled down to Adelaide rather than to Darwin. They then set up camp in that capital in the same way that is done in Darwin. I was in Adelaide for part of that time (several months), and the running commentary was interesting to watch. The Adelaide authorities were very soon changing the conversation to ‘getting these people out of the parklands and back to where they came from’. This seemed to be a result of problems that are daily ones in Darwin.

The point being that when confronted with some of the problems faced daily in the NT, other jurisdictions seem even more nonplussed.

Jacques Chester
Jacques Chester
13 years ago

In all sincerity, any constitution even vaguely enshrining customary law has buckley’s chance of getting a run in the cities.

About the closest you could come would be to make a bicameral Parliament along the traditional population vs geography lines.

I realise that this will mean even more politicians, but as it happens one of our problems is that NT Governments have to be formed out of very shallow pools of talent.

Jacques Chester
Jacques Chester
13 years ago

I agree that this particular impasse will lead to a re-run of 1998.

My suspicion is that statehood will require two preconditions to be successful.

The first is a large increase in population. We have no real power in Canberra. Our MPs and Senators have weak influence in their party rooms because they do not have enough peers whose prospects and preselections they can influence. Without a distinct bloc such as NSW and Victoria have always enjoyed in both parties, or that WA has acquired with the Liberals, the NT will never get a decent hearing in Canberra. People power requires people.

The second problem is the one we’ve canvassed here: the unreconciled differences between customary and common law. Neither side wishes the other to entrench a winning hand in the constitution. My suspicion here is that it will take a long period of co-evolution to settle these differences; in particular the rocky road to integrating traditional culture with Enlightenment modernity.

Until these preconditions are met — and they would require decades in my view — I just don’t see statehood on decent terms getting up.