The elephant in the room for NT statehood


Statehood for the Northern Territory is in the air again, with COAG having recently voted to support a statehood process (albeit with no assurances as to the outcome).  Whether it was any more than a distraction tactic for both then PM Tony Abbott and the equally beleaguered NT Chief Minister  Adam Giles is another question, but I at least hope that it was a serious offer/invitation to treat on the part of the Commonwealth and States.

Statehood predictably produces almost universal guffaws whenever anyone mentions it, not only in the rest of Australia but among Territorians too. However I have long believed that a statehood process will at the very least serve as a trigger for prolonged reflection about appropriate governance structures for a polity covering 20% of Australia’s land mass but with just 250,000 people, one-third of whom are Aboriginal.  It might even result over time in badly needed political maturation, in place of the endless three ring circus that current NT politics has become.

I have privately peddled the following idea to politicians in both major parties in recent weeks, and been met with what can best be described as polite disinterest. Despite that, in my not so humble opinion it’s not only a truly brilliant idea but quite possibly the only way statehood for the NT can actually be achieved in the foreseeable future.

p2258-statehoodIt is generally considered that a major reason why Shane Stone’s statehood referendum failed in 1998 was because of opposition from Aboriginal organisations (especially land councils) and their supporters.  That opposition in turn was to a significant extent due to a perception that Aboriginal interests were better protected by remaining under ultimate Commonwealth control (where any changes, especially to the Aboriginal Land Rights (Northern Territory) Act 1976, would need to get through the Senate which neither major party usually controls). The then CLP government had staunchly opposed every single Aboriginal land claim and made several attempts to get the Act watered down, so Aboriginal fears were hardly surprising.

The fears, concerns and aspirations of Aboriginal Territorians are still the elephant in the room for NT statehood. Given that approximately 50% of the NT’s land mass is now Aboriginal land (much of it under ALRNTA inalienable title), it seems to me that statehood without patriation to NT control of the ALRNTA would be very unsatisfactory.  On the other hand, strong land council opposition to any such move remains evident, as shown by immediate adverse land council public comment on the announcement of COAG support for a renewed statehood process.  Finding a way to cut through this Catch 22 is in my view essential to the success of any statehood proposal.

Entrenching Aboriginal land rights and other rights in a constitutional bill of rights would of course certainly be effective, but is very unlikely to meet with either political favour or success in any referendum.  There is quite widespread opposition to constitutional bills of rights on both sides of politics, and inclusion of any such proposal in a referendum would in my view doom it to failure.

My idea/proposal instead builds on a proposal by Noel Pearson in the federal context for creation of a purely advisory Aboriginal constituent assembly (quote from newspaper article):

Such a proposal would not offend constitutional conservatives, increasing the prospect that a referendum in May 2017 could succeed.

Australian legal and political culture places a firm emphasis on parliamentary supremacy. A legally enforceable bill of rights has met resistance for this reason. Under Pearson’s proposal, parliament would remain supreme, free to disagree with the proposals of the consultative body.

A non-binding consultative body would defer to parliament but it would not necessarily be irrelevant. Internationally, there is precedent for such consultative bodies.

Other countries have bodies that lack binding authority but do not suffer a lack of influence. …

A consultative body of Indigenous Australians would offer non-binding advice. At the same time it could wield political authority. The people, through a referendum, would have established the consultative body. It would derive some authority from that fact alone. It could use its position as an institution of the constitution to demand an explanation whenever government seeks to ignore one of its reports.

 In the Territory context such a body could be established immediately by ordinary legislation.  It would be purely advisory in most respects.  However, when/if statehood comes about (including patriation of the ALRNTA) it could be on the basis that the new NT State Constitution provided that the Aboriginal Constituent Assembly would have veto rights over any changes to that Act.  In other words it would function only in that respect as a true Upper House of Parliament. Aboriginal land tenure would be MORE securely protected under such a system than it is now.

My concept of this Assembly is that it would meet several times per year, its members being paid sitting fees (not a salary).  It would meet either in Parliament House itself (with conversion of the NT Library space to its designed function as a second house of Parliament) or perhaps in the old Chan Building across the square.  Membership would consist of all current Aboriginal MLAs and an Aboriginal representative of each of the 4 land councils, each of the 3 Aboriginal legal aid organisations, and each of the regional local government councils.  Thus it would have something like 20 members.

I hope both major parties and Independents might yet consider this step as a real and immediate policy option, not only as part of a statehood process but in any event.  It would be a decisive step towards bringing Aboriginal Territorians into the NT mainstream as real and equal participants in Territory growth and development.  With Aboriginal people constituting one-third of the population and owning 50% of the land, realistically the Northern Territory can never achieve its full economic or social potential without some such dramatic and effective process.

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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12 Responses to The elephant in the room for NT statehood

  1. Pappinbara Fox says:

    Mmmm Statehood? I have toyed with the idea of a Northern Australia State. One that basically covers the entire tropics from Townsville to Broome. This would provide the population needed, the industry needed and, although a large area would improve management because the people in government would have better understanding of tropical issues and set up procedures to deliver services to remote and rural areas. It could be done.

  2. derrida derider says:

    Greedy for ten senators, eh?

    I must say the banana republic antics of the NT assembly over a long period does not give confidence that the pool of political talent is sufficiently deep to yield ten reasonable quality senators. The Tasmanian precedent is not reassuring.

    Plus I’m not at all sure it’s in territorians’ interests anyway. I suspect you’d do a lot worse out of COAG.

    • Ken Parish says:

      Hi DD

      The Northern Territory already participates in COAG (as does the ACT). Moreover it is funded for GST share under the same Grants Commission formula that applies to the states. The general view of people far more expert than me is that statehood wouldn’t make much if any difference to Commonwealth funding levels.

      As for number of Senators, no-one seriously argues that the NT would or should have anything like 12 Senators on statehood (at least initially). That number applied to the original states in 1901 but is not a constitutional requirement for any new states. Constitution s 121 provides for the admission or establishment of new states on such terms and conditions as the Commonwealth thinks fit. Previous proposals and discussion papers have suggested that the NT should have 4-6 Senators initially with a formula providing for progressive increase towards 12 as population increases.

  3. john Walker says:

    Ken I do not understand why you think Statehood would in itself change the political culture.

    • Ken Parish says:

      Hi John

      I didn’t say that statehood would in itself change political culture. What I said was that “a statehood process will at the very least serve as a trigger for prolonged reflection about appropriate governance structures”. In other words, all the community fora and media discussion leading up to it; the election for constitutional convention delegates and the conduct of the convention itself; negotiations with the Commonwealth over terms of statehood etc.

      The existing Territory governance structure was established by the Commonwealth in 1978, along essentially identical lines to existing states, and with little or no thought as to whether that was an appropriate structure for a huge, largely undeveloped area of land with a tiny population one-third of whom are Aboriginal (and the rest the most multicultural mix in Australia, with nearly everyone having been born somewhere else, even if within Australia).

      After a 37 year (arguably failed) experiment with the existing NT self-government model, it’s clearly high time for us to reflect on whether it is an appropriate model and how it could be improved. A statehood process is the obvious vehicle for that community reflection. I have recently been canvassing numerous ideas for altered governance structures for the NT. They include:

      – conversion to multi-member electorates with MLAs elected by proportional representation (as with ACT and Tasmania);
      – creation of a mostly advisory Aboriginal Constituent Assembly (this post);
      – abolition of urban local councils (with local MLAs providing local representation on council-type issues, including forming local citizens’ precinct committees as Ted Mack once did in North Sydney);
      – creation of a NT anti-corruption commission;
      – wholesale reform of planning laws (currently the worst, most politicised and least transparent in Australia);
      restrictions on political donations and more transparent donations disclosure requirements.

      • John walker says:

        Ken thanks . I really do not know enough about the territory to judge. However I wonder whether a place that is so dependant on cross subsidy , could ever really change its culture.

  4. Bob Durnan says:

    Ken, I think that you are underestimating two other sources of opposition to statehood: in the 1998 referendum debate, just about all the Christian churches and groups mobilised against what they saw as a trojan horse for the then still hot euthanasia push; and public sector workers were generally hostile, due to perceived threats to pay and conditions. Both these groups would continue to be significant players in any future push for statehood.

  5. Persse says:

    Given the predominance of Darwin in the Territory, statehood would see the state leader acting in effect as the cities mayor. I see more chance of Territory wide development by better quality, support and resources through the current arrangement.

    • Ken Parish says:

      See my response to John Walker above. A system of multi-member electorates with MLAs elected on PR would mean that we would more often than not have minority governments, in which the leader would be obliged to negotiate with MLAs representing diverse interests across the Territory. That would greatly reduce the extent of governments pork-barrelling Darwin for electoral survival at the expense of the rest of the Territory. In fact, perceptions that this (pork-barrelling Darwin) does indeed occur is one of the biggest criticisms of the existing system.

      Local councils (especially the 8 regional ones in remote areas) do not meaningfully counterbalance the overriding power (especially financial power) of the NT government. The councils have no meaningful independent rates base because most remote residents don’t own their own homes and mostly don’t have ordinary salaried jobs. The regional councils certainly provide local representation for making decisions about local spending priorities, and my ideas involve preserving regional councils both for that purpose and so that they can contribute representation on the Aboriginal Constituent Assembly (mostly advisory Upper House).

  6. Alan says:

    People have been happily watching special interest upper houses since the Middle Ages.

    They invariably roll over to the lower chamber or get steamrolled. That is the record the Tennis Court Oath when the First and Second Estate voted to merge with the Third Estate in 1789 to the suicide squads used to abolish the legislative council in Queensland. An indigenous chamber would be subjected to the most extraordinary political attacks the instant it attempted to veto the lower chamber.

    Standing between a neoliberal cultist and the chance to privatise or level something is never a safe or happy place.

    Most US Western states, apart from California, have extensive federal landholdings that were preserved as a condition of admission to the Union. NT statehood could easily run along similar lines with the indigenous federal relationship preserved.

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