Northern Territory: “State” of Ambivalence

A century ago this year, South Australia handed over governance of the Northern Territory to the newly created Commonwealth under s 111 of the Constitution. South Australia had decided it could no longer afford the Territory.  Despite its apparent rich promise, Adelaide’s dream of a northern gateway to the rich markets of Asia had become a nightmare.  The other States didn’t want a gateway to Asia, they wanted a wall to keep Asians out of White Australia.

A century later, Statehood is again on the Northern Territory political agenda despite being rejected by Territorians themselves as recently as 1998. A Statehood Convention is to be held, aimed at drafting a new constitution which will eventually be enacted by Federal Parliament under Constitution s 121, thereby creating Australia’s seventh State.

But, as in 1911, the story of Territory constitutional advancement is an ambivalent one. I haven’t yet witnessed rejoicing in Darwin streets at the prospect of Statehood.  It’s not a barbecue stopper, not even a sausage sizzler. In fact, for most people mentioning Statehood is a signal to sidle away casually, grab another green can and start talking loudly about Collingwood’s prospects for a second flag in a row.

Only 4 years ago, and just under 30 years after the Commonwealth granted us self-governing status in 1978, the Howard government stripped away many of the NT government’s administrative powers over almost fifty percent of the Territory when it announced its National Emergency Response or Indigenous Intervention.  But that didn’t seem to worry most Territorians too much.

And only a few weeks ago Australian columnist Nicolas Rothwell called for abolition of self-government, claiming that successive NT governments had been guilty of effectively fraudulent diversion of Indigenous funding towards “pork-barrelling” urban electorates. Some Aboriginal land councils have made similar assertions.  No-one else seems too concerned one way or the other.

But a recent Productivity Commission report commissioned by the Council of Australian Governments largely refutes those claims.  It confirms that the NT government spends some 54% of its budget on Aboriginal Territorians who comprise just 30% of the population.  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.  Grants Commission formulae provide very generous funding to the Territory to allow for such diseconomies of scale. Accordingly, the fact that the NT government spends more on its Indigenous than non-Indigenous citizens does not of itself conclusively eliminate the possibility that some federal funding provided for remediation of Indigenous disadvantage may be diverted to other areas. However, if there is any sort of diversion 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 that any diversion of funds is very modest indeed.

Territory governments of both political parties have spent the period since self-government battling to catch up from a century of neglectful, inept and sometimes heavy-handed “colonial” administration first by South Australia and then the Commonwealth.  That historical reality remains relevant to current efforts to build adequate housing and public infrastructure in remote communities. The evident aim is to reconcile desperate community need with governments’ fiscal capacities by concentrating on development of twenty “growth towns” and defunding non-viable outstations.

In that practical context, it is understandable that commentators like Rothwell should see Statehood as an irrelevant distraction if not a political delusion.  Nevertheless, Statehood for the Northern Territory is inevitable. It’s a matter of when and how it will occur. There are numerous difficult and potentially divisive constitutional and political hurdles. I wouldn’t bet on a Statehood referendum succeeding in the immediate future.

Statehood advocates highlight events when the Commonwealth has overridden Territory laws, but there have only been three such occasions in the 33 years since self-government: the proposed Muckaty Station nuclear waste dump, the Indigenous Intervention and Commonwealth overriding of the Territory’s pioneering euthanasia legislation. The Commonwealth possesses direct constitutional power to inflict a nuclear waste dump on a State through a combination of constitutional powers including the external affairs power (Constitution s 51(xxix)) and defence power (Constitution s 51(vi)). On the other hand, South Australia’s successful litigation delaying tactics underline the fact that a Territory is a softer target than a State.  The Commonwealth could also have implemented most aspects of the Indigenous Intervention in a State under the co-called race power (Constitution s 51(xxvi)). Finally, although the Commonwealth probably could not have intervened directly on euthanasia, a determined federal government could have achieved a similar result by threatening grant funding as John Howard did to get his own way on uniform national gun laws after the Port Arthur massacre.

Nor will the new State receive more generous federal funding than at present, because the Territory is already funded as a State under Grants Commission formulae.  It also isn’t likely that a new State with only around 230,000 people will receive significant additional representation in Federal Parliament.

Statehood is the next logical step in our constitutional development but its immediate significance is largely symbolic.  Nevertheless, in my view it is appropriate to embark on a fresh process now, some 13 years after failure of the last Statehood referendum. However, my reasons for supporting the process are rather different from the expressed rather jingoistic rationales of the politicians and their advisers.

For a start, sufficient time is needed for delegates to consider the issues carefully and produce a solid working document. The draft constitution they create will only have a chance of general acceptance if delegates feel a sense of “ownership” sufficient to go out and sell it to the community.

I have taken the personal initiative of creating an online People’s Constitutional Convention website where potential delegates and others can discuss the issues surrounding Statehood and even engage in some amateur constitution-drafting. It’s a Collingwood-free zone.

Delegates to the actual Convention will need a keen appreciation of key political and constitutional issues, and a willingness to accept that practical compromise is essential to success.

Aboriginal support for Statehood may well require constitutional recognition of land rights, language and customary law. However, there must also be provisos allowing prohibition of customary practices which breach fundamental human rights standards, for example some violent tribal punishments, and some “promised marriage” situations involving under-aged girls. These issues are difficult and potentially divisive. But an acceptable solution has to be found irrespective of Statehood. A democratically elected people’s Convention about Statehood could well prove a productive forum for generating constructive dialogue about those issues. Aboriginal Territorians comprise almost a third of the Territory’s population and own almost half the land.  The future well-being of Territorians generally depends on addressing drastic dysfunctionality in remote communities and finding ways of living together in relative harmony and increasing prosperity.  Failure to address land rights, language and customary law in a serious and substantive way played a significant part in torpedoing the last Statehood push, and anyone who imagines they can be swept under the carpet or bypassed until later is fooling themselves.

Convention delegates will also need to grapple with the 21st century reality of federalism.  By virtue of its effective control of the national purse-strings, the Commonwealth exercises control of the general policy direction in 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. Vertical fiscal imbalance is a phenomenon whereby the States are burdened with the bulk of service delivery functions while the Commonwealth controls most tax revenue. That disparity is a significant impediment to genuine State sovereignty.

Convention delegates can’t simply ignore the elephant in the room by pretending that contemporary Australian federalism is a well-oiled model of constitutional perfection.  It would make no sense to create a new State having exactly the same governance relationship with the Commonwealth that the original States negotiated more than a century ago.  One of numerous possibilities would be to offer to cede to the Commonwealth some aspects of the powers that the original States currently enjoy but which obviously require strong national co-ordination at a policy if not operational level. In return the Commonwealth would be required to provide a permanently guaranteed share of national tax revenue sufficient for the new State to discharge its ongoing service delivery and infrastructure responsibilities without being a mere mendicant of the Federal Government as the current States have effectively become.

Finally, any Statehood proposal will have to satisfy Federal Parliamentarians and not just Territorians, because a law enacting it under Constitution s 121 will need to be passed by a majority in both Houses of Parliament. Some federal MPs have doubts about the capacity of the Territory to govern itself competently.  Some local government areas “down south” have larger populations than the entire Territory, although we have significantly more people today than either Tasmania or Western Australia at Federation.  Given that we are already funded as a State and that NT governments have performed the full range of traditional State functions ever since self-government in 1978, there is no compelling reason to deny Statehood once Territorians themselves have decided they want it and have achieved a sufficient level of consensus on terms and appropriate governance structures and safeguards.

No new State has been created in Australia since 1901, so this Statehood process has real national significance. The Territory has come a long way since the 1911 handover but many Territorians themselves remain ambivalent about Statehood. Reflecting on our stage of constitutional development and how we want to be governed could be a positive thing, as long as we approach it with mutual respect and a desire to find workable solutions rather than excuses for division and conflict. Some of us remain eternal if ambivalent optimists.

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