Summit, governance and statehood

Author: Ted Dunstan 

I congratulate the progenitors of this excellent governance summit, the CDU Law School. It is a concept whose time has come. I note that it is appropriately not yet about statehood, whose time has definitely not come, but several steps before that (which may lead to it). Since self-government there has been a paucity of constitutional development, and such a conference may promote further debate on numerous aspects of Territory governance and surrounding issues.

My apologies for writing but not attending the summit, as I am really interested and would like to be present, but I am laid-up in bed with a nasty condition for an extended period, and at the time of the conference in February I expect to be in hospital for another operation.  So, I can only contribute by posting articles which are relevant, and hope someone reads them and takes them seriously!

Ironically, I need to start with a caution; that I trust the summits do not reflect a political opportunity which naturally arises, for partisan views, which on the face of the draft introduction and topic agendas appear to assume, despite polite academia-speak and disclaimer, that there is serious systemic failure of governance, using that word instead of ‘government’, meaning the last CLP government. The two terms must not be confused. Systemic failure remains to be identified, interrogated and dissected, and should not be code for stupidity, hedonism and arrogance. That, I submit, is a matter for the political party to deal with. The voters have already spoken loudly on it.

There must be failure in government, which affects governance and thus can be identified, treated and considered objectively- and there are examples I’m afraid, one being a decision before the election to allow the Kululuk lease of ‘green-fields’ to be converted by the traditional owners for sale to commercial interests. I am critical of the NTG on other matters, having insights as a CLP candidate. We did some good things, but I am livid at the antics and behaviour which brought us down. Just to let you know!

If by systemic it is meant that an entire system or part of it has failed over recent years (or longer) then I think the conference is on the right track, and I suggest that the central features will be failed issues, such as the Juvenile Justice System of corrections. The surrounding circumstances are always a giveaway, and the general public are usually the bellwether indicators, aided and abetted by the media, and opposition political parties.

The question is, if there is a true governance issue, then how can it be corrected (indeed should there be correction or a change?). Probably the best examples are the voting methods used. As you will be debating this, there are several types and numerous issues surrounding this conundrum. We all have our favourites. Is there a right or wrong mode?

When I saw the agenda, I raced through it, happily agreeing with most of the topics being worthy of examination, becoming excited when I saw something to which I could contribute. When I came to the “two towers” of power, the NT government and the Land Councils, I pulled up short. Whoa! The land councils may be part of a power structure, but I think there is a much bigger power-broker than the land councils. The union movement could be considered such, even industrial and commercial entities and their representations. But the land councils operate as trustees for the indigenous people of the NT, and as such they are institutionalised and enfranchised as voters, and even said to be identified, loosely as the “Bush” vote. That is a tower of power in my submission!

So my first topic relating to governance applies to the indigenous people of the Northern Territory. Although we have not taken further the required Heads of Agreement, which was decided at the Kalkarinji and Batchelor Aboriginal constitutional conferences around the 1998 statehood effort, very little has happened to advance such governance by either political party or by indigenous peoples themselves. There is a practical reason for seeking such community authority.

I must refer to the August elections last year. I promoted a Labor Party scheme advanced by former Minister Jack Ah Kit, when Labor was in power called “Return to Country.” It failed for want of case management and the fact that it was all voluntary. Hundreds if not thousands of indigenous people flooded to the city, suburbs and to Nightcliff, many causing social; disruption. I lobbied the NTG and obtained funding to resurrect the scheme under new rules. But there was always going to be an ennui, an uncompleted end involving communities.

I had in mind further authority for elders or councils to exercise greater powers over persons returned to their communities, but realising that there were huge constitutional, legal, ethical and other barriers; that I have no right to dictate what communities should or should not do. Thus even if the scheme had been resurrected. I think I would have created a monster! I now believe I have the whole thing back to front.

The first question would be, should indigenous communities, properly identified, be granted further autonomy, to deal with a whole raft of questions, of which “Return to Country” may be one. It even seemed to me that required some form of plebiscite from the NT community. The question has not even been raised, let alone discussed. I do hope somebody says something about it, and not just the land councils!

The second aspect of indigenous community life being advanced by changes in governance is actually mentioned in the blurb, which will doubtless be put into a website, and hopefully read and engage a whole generation or more of Territorians. And that is to create a chamber of elders. Providing future arrangements do not complicate this concept by additionally creating a bicameral Upper house, or even with a Legislative Assembly, however changed in concept, there could still be and I think should be a Council of Elders. It could be fully elected, and its powers would doubtless revolve around indigenous matters, such as more autonomy to trial localities or even clan groups; that would be a matter for them.

They could take their lead from the unresolved constitutional requirements, which the political parties (both of them) have assiduously avoided. I look at the model I observed whilst serving as a Senior Legal Officer, in charge of the lands section Department of lands in Fiji circa 1977, where there was a second chamber of government, called the Great Council of Chiefs. I noted that there were some very level-headed leaders who advanced their land claims, whilst keeping hotheads and insurrectionists under control, and under very trying racial and religious circumstances, mainly with Indian and Islamic tenants. I think this would be a very good topic for discussion, and I look forward to hearing, or reading about the debate. In case you’re wondering, this has a very big bearing on the conditions for statehood.

And whilst I am still with this topic, I believe that the land question itself could be aired, as it must be before we get to statehood. We all know that land rights is a central question for indigenous people, and that is embodied in the Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976. I won’t go into the politics of it but there was great resistance from indigenous people and those who supported them, that the legislation remain with the Commonwealth because of a fear that if it was patriated to the Northern Territory government at statehood, they would lose their land rights or in other ways have them altered to their detriment in the pursuit of land resource development.

That is still a question today, although times have changed and so has legislation and the body of law in precedents which apply. I will be interested to see if Marshall Perron has any comment, and now the land councils will also have their say. I have a view, which is a compromise, and as hypothetical situations go, I can only say that discussion would be ideal for a Council of Elders!

I would also like to have a shot at describing the legal rights the NT already have, which is really Graham Nicholson’s specialty, whether or not we have a Bill of Rights (which I suspect anyway). I am sure readers would be surprised to see how many rights we do have already ensconced in legislation and through our own de facto constitution, the Northern Territory (Self Government) Act 1978.

I wish also to broach at some stage a topic in which I know Ken Parish is interested and that is multi-member electorates. I am in favour of them for reasons I will give in the article.

But next time I write, it will be about the former NTG Chief Minister peremptorily announcing a statehood date, and what that obliged me to do and risk. I will give my reasons. Goddammit, I didn’t research and study statehood and constitutional law for seven years for nothing! See, Smee and Walsh did not get everything in their book Crocs in the Cabinet.

My last word tonight in respect of the information sent to me about this CDU Law School NT Governance Summit is that the list of speakers and persons consulted is quite extensive and impressive, many of whom I am aware know their stuff, and the talks will doubtless engender great interest amongst Territorians. Congratulations on your initiative, and well done to the organizing Panel.

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