14 Northern Territory

The Northern Territory (NT)^[1] comprises one-fifth of Australia’s land mass and has a population of 228,833,^[2] of which just under one-third is Aboriginal. Representative government is a relatively recent phenomenon for residents of the NT, who endured government from afar until the 1970s and, to a certain extent, still do.Like other parts of the country lying north of the Tropic of Capricorn, it has fleeting moments at the top of the national political agenda – most notably at times of disaster – before resuming its status as a somewhat awkward remote irritant.The NT Legislative Assembly is a unicameral parliament, established after the Northern Territory (Self-Government) Act 1978 (Cth) (Self-Government Act) of the federal parliament conferred limited self-governing powers on the NT. The Assembly is comprised of 25 representatives of single-member electoral divisions; each division has an average 5,692 electors.^[3]

History

The NT was part of the colony of New South Wales (NSW) from 1849 until 1863.^[4] It then became part of South Australia (SA) until 1911,^[5] making it part of SA at Federation in 1901.

Under the Northern Territory Representation Act 1888 (SA), the NT was a single electoral district that elected two members to the SA House of Assembly and, proportionately, membership of the Legislative Council. From 1901 until 1911, NT residents, who had been extended full adult suffrage,^[6] voted for the six senators representing SA and, from 1903, the NT was included in SA’s federal division of Grey.^[7]

In 1911, the NT was ceded by SA to the Australian government. This was achieved by South Australia’s Northern Territory Surrender Act 1907 (Cth) and the Federal parliament’s Northern Territory Acceptance Act 1910 (Cth). Under this regime, the NT had no representation at all in the federal parliament and no state-like legislature. It is arguable that this disenfranchisement was the result of the White Australia policy, enacted in 1901, because the non-Indigenous NT population was overwhelmingly dominated by Asians,^[8] which would inevitably have resulted in non-white representation in the federal parliament.^[9]

In preparation for the change to Commonwealth control, the federal parliament enacted the Northern Territory (Administration) Act 1910 (Cth), which provided for government in the NT headed by an administrator appointed by the governor-general.^[10]

After bitter objections from NT residents, a single member of the House of Representatives was granted by the Northern Territory Representation Act 1922 (Cth). That representative had no vote. In 1936, the NT representative was granted a vote, but only on ordinances setting down laws for the NT.

Legislative Council

A 13-person Legislative Council was established in 1947. The Commonwealth retained absolute control by providing for the election of six members and the appointment of seven members. The Council had the power to make laws for the ‘peace, order and good government of the Territory subject to assent by the Administrator and/or the pleasure of the Governor-General’.^[11] The Council met for the first time in 1948.

Disaffection with the lack of autonomy remained and, in April 1958, all six elected members of the Council resigned in protest. All were re-elected, five unopposed, in June 1958.^[12] In the same year, the NT’s member of the House of Representatives was allowed to vote ‘on any proposed law or matter relating solely or principally to the Territory’.^[13]

The following year, the composition of the Legislative Council was changed to eight elected members, six official members and three non-official members. Commonwealth control was retained by appointing the administrator to be the president of the Council with two votes, a deliberative and a casting vote.^[14] At the same time, an Administrator’s Council was created as an advisory body and comprised two official (appointed) members and three elected members.

In 1965, the administrator was replaced as a member and president of the Legislative Council. The president was, for the first time, an elected member of the Council. In 1968, composition was changed again: non-official appointed members were replaced by elected members, resulting in 11 elected members and six appointed members. For the first time, the Legislative Council was under NT control. In that year, the NT’s member of the House of Representatives was granted full voting rights.

Legislative Assembly

On 20 November 1974, the first fully elected Legislative Assembly, comprising 19 members, convened. This resulted in the NT’s first executive. In 1977, the federal parliament enacted the Self-Government Act. On 1 July 1978, the NT became self-governing and the NT government was given authority and responsibility for the finances of the territory. In 1982, membership of the Legislative Assembly was increased to 25.

Limitations of self-government

When the Commonwealth ceded control of the NT to the Legislative Assembly, certain state-like powers were not transferred. These were: Aboriginal land rights, industrial relations, national parks and uranium mining. Those limitations remain.

This situation, however, is fluid. The NT’s Rights of the Terminally Ill Act 1995 (NT) (ROTI), passed by the Legislative Assembly in May 1995, was overturned by the federal parliament’s Euthanasia Laws Act 1997 (Cth),^[15] which amended the Self-Government Act by inserting section 51A to prohibit laws in relation to voluntary euthanasia. ROTI has never been repealed by the Legislative Assembly and remains an impotent instrument in the statutes of the NT. Statehood was first mooted for the NT during the 1975 federal election, but this amendment to the Self-Government Act resulted in a grievance to the Australian parliament and an invigorated debate about the NT’s inequality within the federation.

Similarly, the federal parliament’s Northern Territory National Emergency Response Act 2007 (Cth) (the Intervention) allowed for a federal ‘invasion’ of the NT and the suspension of some NT and federal laws. The $587 million emergency response followed publicity arising from the Little children are sacred report, commissioned by Chief Minister Clare Martin in 2006, and was an initiative of the Howard government in the lead-up to the 2007 election, at which it was defeated. The Intervention suspended federal laws in relation to discrimination, social security, taxation and Aboriginal land, and NT laws in relation to alcohol and pornography, removed customary law and cultural practice considerations from bail applications and sentencing in criminal trials, and introduced mandatory health checks for children. Directed at Aboriginal communities, the haste with which it was introduced allowed ‘little time for consultation with Indigenous communities’ and it included ‘army troops being deployed to Indigenous communities in the Northern Territory’.^[16]

Neither action could happen in a state because state constitutions provide entrenched powers and legislative independence from the federal government. The NT is without a constitution and, in its absence, the Self-Government Act is effectively the NT constitution, which is under the full control of the federal parliament in which the NT has four representatives.

Financial arrangements and economy

The NT has been funded as a state by the federal government since 1988.^[17] Funding arrangements apply:

Funding for Aboriginal disadvantage, however, has been a contentious matter since self-government was established in 1978. Speaking at the 2017 Garma Festival of Traditional Culture, former Chairman of the NT Grants Commission and former Coordinator-General Bob Beadman said that while the reason for the dearth in funding is multifaceted, a fundamental reason is that ‘The Commonwealth Grants Commission carve-up provided no catch-up to address the infrastructure deficit dump passed to the NT at the time of Self-Government’.^[19]

Because of the small population of the NT, there are limited revenue-raising opportunities for NT governments. Taxation revenue is limited to payroll, motor vehicle registration and stamp duty–type revenue. The boom and bust nature of the NT’s resource-based economy means there is some income from mining royalties, but even these are subject to minimisation by the companies concerned and don’t contribute a great deal to the NT budget.^[20] Thus the NT is heavily reliant on federal government funding.

Notwithstanding that 30 per cent of the population is Aboriginal, the NT is losing ‘Indigenous funding’ to other states because increasing numbers of people in those states are identifying as Aboriginal. This is complicated by the Commonwealth Grants Commission’s failure to assess relative need between Aboriginal populations in Australia^[21] since its creation in 1933.

The enduring lack of comprehensive federal policy in relation to northern Australia has been lamented by Megarrity^[22] as the ‘politics of neglect’ based on viewing the nation’s north as an economy rather than a society, and failing to consider intellectual contributions from a range of community members. Historical neglect, he noted, means that the north is still considered a wild, frontier land for which visions of wealth and splendour are a product of east coast metropolitan ‘white fella Dreaming’.

Political parties

There are two dominant political parties in the NT: the Country Liberal Party (CLP) and the Australian Labor Party (ALP). The CLP was formed in 1974, when the Liberal Party, which was concentrated in Darwin, and the Country Party, which was concentrated in regional bush centres, merged to become the sole conservative force. The NT branch of the ALP was formed in 1973 and has traditionally been regarded as ‘weak’ because:

This difficulty was well demonstrated when the CLP held power in the NT from 1974 until 2001, when the ALP experienced its inaugural victory.

Aboriginal representation in the Legislative Assembly

Electoral laws applying at the 1974 and 1977 elections provided for voluntary enrolment of Aboriginal people, although, if enrolled, voting was compulsory. By the 1980 election, enrolment and voting were compulsory for all qualified residents. Prior to 1980, remote Aboriginal people were obliged to use the postal vote system; however, this was replaced with mobile polling booths in remote communities^[24] and candidates were identified both by name and photograph on ballot papers, recognising that English was a second or subsequent language in many communities. This more inclusive practice remains the case.

Aboriginal electoral enrolment is comparatively low,^[25] particularly in remote regions. The reasons are complicated and include language difficulties, relevance of the electoral system, electoral roll accuracy and the logistical difficulties of undertaking remote enrolment drives.

There has been Aboriginal membership of the Legislative Assembly since 1974, although membership of more recent Assemblies better reflects the NT’s 30 per cent Aboriginal population. There have been several Aboriginal ministers – men and women – in NT governments.

Four-year fixed-term elections were introduced in the NT in 2009. Table 1 lists the results of each general election since the Legislative Assembly was created in 1974.^[27]

Land rights

During the 1960s, Aboriginal political activism accelerated. The Yirrkala Bark Petitions, protesting against the granting of mining leases over Yolŋu land without consultation, were presented to the federal parliament in 1963. Vincent Lingiari led the historic Wave Hill walk-off in 1965 to press for equal wages for Aboriginal stockmen. A 1967 referendum, which sought a mandate to remove sections of the Constitution that discriminated against Aboriginal people,^[28] was supported. Prime Minister Gough Whitlam introduced a Bill for the Land Rights Act and, after the Whitlam dismissal in 1975, the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) was passed by the federal parliament with bipartisan support in December 1976.

The Self-Government Act is at loggerheads with ALRA, however, because:

At issue is the fact that 51 per cent of the NT’s land mass is designated Aboriginal land over which the NT government has no control. Equally, Aboriginal people have limited control over their land because power in relation to decisions about Aboriginal land is vested in Aboriginal land councils^[30] to act in the interests of traditional owners. This, said Parish, has resulted in a ‘largely unplanned system of separation of powers’, with no constitutional foundation, between the federal and NT governments.

The two largest land councils – the Northern (NLC) and Central (CLC) – are often criticised for not representing the wishes of some or all traditional owners. In a 1998 review of ALRA by John Reeves QC, the Act was found to have ‘generated internal disputes by concentrating benefits in the hands of individuals’ and resulted in ‘selected individualism’ that also affected royalty distributions. The absence of a more productive partnership, he said, was ‘to the detriment of … Aboriginal Territorians’.^[31]

Most recently, these land councils have been criticised for entering into a memorandum of understanding with the chief minister in relation to treaty negotiations. Groups such as the Yolŋu of Arnhem Land, represented by the independent Member of the Legislative Assembly Yingiya Guyula, claim to have been left out of the process.

The Self-Government Act and ALRA are products of the Australian parliament over which the NT has no control.

Federal representation

Section 122 of the Commonwealth of Australia Constitution Act 1900 (UK) provides the NT with two senators and two members of the House of Representatives. This has been the case since 1975; however, ‘the legislation to enable this representation was the subject of great rancour, only passing the Commonwealth parliament following affirmation at a joint sitting of the two houses and subsequently surviving two High Court challenges’.^[32]

The rancour, Michael Sloane says in his paper on representation of the territories in the Senate, was caused by the potential ‘Constitutional imbalance’ it would unleash on the Senate. He points out that the Constitution preserves the rights of ‘original States’ and stipulates that changes to Senate representation, which in turn affect House of Representatives numbers, must ‘maintain parity in the representation of the original states’.

In 2020, population decline meant that NT representation in the Lower House was reduced from two to one. Following an inquiry by the Joint Standing Committee on Electoral Matters, the Fair Representation Bill, which guaranteed the existing two seats of Solomon and Lingiari, was passed on 9 December 2020.^[33]

Statehood

The issue of whether the NT should be admitted as the seventh state of the Australian federation has been contentious for a variety of reasons. These include the relatively small population; negotiations with the federal government on terms and conditions of admission^[34] under section 106 of the Constitution;^[35] and internal wrangling within the NT about whether statehood is a priority, the mechanics of how to proceed and, at a very local level, whether residents will lose open speed limits and their annual cracker night. The latter two local issues were identified in NT-wide surveys undertaken by the Statehood Steering Committee and resulted in a dedicated fact sheet^[36] explaining that these matters are not subject to Commonwealth laws and are the responsibility of the NT government.^[37]

The Legislative Assembly appointed a Select Committee on Constitutional Development in 1985, which was superseded by a Standing Committee on Legal and Constitutional Affairs. Following the overturning of ROTI in 1997, the impetus for statehood was invigorated.

A constitutional convention was held in 1998, but Aboriginal people and some trade union representatives walked out in protest. Aboriginal people held their own conventions in the same year, which resulted in two statements: the Kalkarindji Statement of August and the Batchelor Statement of December. The message from both statements was clear: there would be no discussion about statehood unless Aboriginal Territorians were consulted and included in negotiations.^[38]

Meanwhile, a referendum on statehood was held on 3 October 1998 and narrowly lost, with a 51.31 per cent ‘no’ vote. Aboriginal people voted in a solid bloc against the proposition. Three questions had been recommended by the constitutional convention, but Chief Minister Shane Stone rolled them into this single question, as Smith describes:

The ALP resurrected the idea in 2003, after its election in 2001, with bipartisan support. Despite considerable expense and an extraordinary amount of work, the matter lapsed in 2016 after political wrangling about the timing of an election for a fresh constitutional convention. Chief Minister Adam Giles raised the issue at the Council of Australian Governments in 2016, when the idea was supported in principle and the onus returned to the NT to formulate a proposal. The matter has not seriously resurfaced since.

Conclusions

The NT enjoys a peculiar position in the Australian federation, but essentially functions as a state to the extent that the Self-Government Act allows. Friction arises – usually resulting in debates about ‘states rights’ – when the Commonwealth intervenes in NT matters, as was the case with the Euthanasia Laws Act 1997 and the Intervention.

The NT is characterised by intergenerational Aboriginal disadvantage, giving rise to complex social problems requiring considered and enduring policy responses, which, in turn, require significant funding. Principal among these are generations of Territorians suffering from foetal alcohol spectrum disorder.

Whether or not the NT becomes Australia’s seventh state is a matter for residents, the NT and federal governments. Key among the issues to be resolved is representation in the Australian parliament. At a broader level, recognition of Aboriginal people as the first inhabitants of the NT is a matter for both the NT and federal governments and will be crucial to any negotiations in relation to statehood.

References

About the author

Dr Robyn Smith is a conjoint fellow at the University of Newcastle. She is a writer on NT politics, history and heritage. Her books include Turning 40: the history of the Northern Territory Legislative Assembly 1974–2014 (2015, with Dean Jaensch) and Arcadian populism: the Country Liberal Party and self-government in the Northern Territory 1978–2005 (2013). Her journal contributions include the Australasian Parliamentary Review (2010–15), Political Chronicles in the Australian Journal of Politics and History (2011–present) and articles for Northern Territory Historical Studies. She writes children’s history books and is presently engaged in NT research for the national University of Newcastle Mapping Massacres project.