This is the final of four extracts from the speech given by Marion Scrymgour on 8 October 2014 at the 2014 H.C. “Nugget” Coombs Memorial Lecture at Charles Darwin University, Darwin.

 You can read the first here, the second here and the third here.

Stronger Futures

Under Labor, the Commonwealth government let the Intervention run its full 5 year term, ignoring advice received from an independent review team lead by Peter Yu. My hope had been that at the end of the 5 years the Commonwealth would simply butt out and leave us alone, and I conveyed that view to Minister Macklin. It wasn’t to be. Instead we got ‘Stronger Futures’.

It is probably not fair to describe ‘Stronger Futures’ as the Intervention mark 2. Most of the 5 year measures in the NTNER were discontinued. The original stronger penalty for bringing alcohol into a restricted area was reinstated, but the whole alcohol restrictions situation was by then a mess, and so it has remained. The damage had already been done.

The scrapping of permits for community areas was quietly left undisturbed.

In a pretty bogus exercise aimed at demonstrating colour blindedness in the application of income management, the pre-existing Intervention version of income management was extended to the whole of the Northern Territory.

This reminded me of the Social Welfare Ordinance which the Commonwealth Minister administering the Northern Territory back in the 1950’s devised as a replacement for the Aboriginals Ordinance. The whole idea back then was not to refer to Aboriginal people directly. The desired policy outcome would be achieved by regulating individuals by reference to the term “wards”. The people who would meet the criteria for being a ward would all be Aboriginal.

I accept that there are a small number of non-Aboriginal people who have been impacted by income management since it was expanded to the whole of the Territory. But the vast majority of people affected continue to be Aboriginal.

And that might have been ok, if all the other states and Territories have been dealt with in the same way. But they haven’t been. A few token locations (of postage stamp size in comparison with the whole of the NT) have been selected as income management zones in other parts of Australia. The Northern Territory is the only complete jurisdiction where the Intervention model of universal income management has been established and maintained.

The most disappointing aspect of Federal Labor’s last stint in office was what they did to CDEP.

Under the Howard and Brough Intervention, CDEP was just summarily executed. The Commonwealth had been gunning for CDEP for some time, but the immediate motivation for its scrapping in the NT appeared to be that CDEP wage earners couldn’t be classed as welfare recipients, and therefore couldn’t be income managed.

Labor went to the 2007 Federal election promising to reinstate CDEP. When they won office in late 2007, I had hoped that the value and creativity of organisations like the Maningrida-based Bawinanga Aboriginal Corporation would be recognised and encouraged. I had hoped that its practice of combining CDEP wages with profit-generated ‘top-up’ would be embraced as a model for the future. Instead, as Will Sanders explained in his 2012 lecture, Gillard, Macklin, and O’Connor took joint ownership in 2008 of a proposal that the government “move away from the system of CDEP wages and move participants into the income support system”.

Bawinanga’s enterprises withered on the vine, and like numerous equivalent organisations in the Territory, it has had to reinvent itself as a mendicant ‘service provider’ for the new Remote Jobs and Communities Program, case managing people who it once could have employed.

 

The constitutional reform debate

 

And so to the here and now. In 2014 we again have a coalition government in Canberra. The self-proclaimed ‘Prime Minister for Indigenous Affairs’ has emphasised his commitment to fixing up the constitution so that Indigenous people have a proper place in it, and in the nation.

I’m not a constitutional lawyer, and there are aspects of the recent constitutional reform debate which have struck me as somewhat arcane. But I do know that what happened to Aboriginal people in the Territory under the Intervention was wrong, and wrong at a constitutional level.

I need to frankly acknowledge that it wasn’t just the Commonwealth that was to blame for the sense of abandonment felt by remote NT communities in 2007 and 2008. In the immediate aftermath of the Intervention announcement on the 21st of June 2007, senior NT bureaucrats were on a  plane to Canberra to try and leverage support for the NT government’s explicitly mainstreaming local government ‘reforms’. Their idea was that the pending ‘supershires’ could become part of the architecture of the Intervention.

I had no hand in any of that, but even after I later became Deputy Chief Minister the built-up momentum was such that I was unable to the stop the local government reforms, or even salvage the concept of community government councils and some of the actual existing community government council entities. It is something I regret greatly, and I apologise to Territorians for my failure to achieve a better outcome.

The imposition of the supershires smashed  people’s sense of autonomy out bush. All the pre-existing councils got swallowed up, even the larger amalgamated bodies which had been working well, like Nyirrangulung in the Barunga/Beswick/Bulman  area and Thamurrurr in Wadeye. Assets were expropriated even from community associations which did local government service provision as a sideline.

I mention what happened with local government in the Territory because it has a bearing on my response to the suggestion that as part of a constitutional reconciliation with Indigenous Australians, there should be a special advisory body made up of Indigenous representatives. As I understand it, the proposal is that this body could have input into government decisions affecting Aboriginal people. Alternatively it has been suggested that parliamentary seats be specifically set aside for Indigenous representatives.

My thoughts on that are that while ATSIC had its good points, we shouldn’t now go back to that sort of a model, especially if it’s not going to involve Indigenous representatives exercising the direct control which ATSIC had over real money and real budgets.

Instead, I think the focus should be on self-determination at a much more grass roots and local level.

I’m not going to venture a comment in relation to the situation in other parts of the country, but what has happened in the Territory is that after a long campaign over decades, mainstream local government has managed to occupy the playing field where the real self-determination game gets played.

This is the space in which, in parts of the United States, tribal governments had already throughout the last century exercised authority over most aspects of life at the community level, including roads and essential services. Probably influenced by that example, the Commonwealth passed legislation in 1976 under which Aboriginal Councils could be established. As almost the first order of business for the first NT government after the grant of self-government in 1978, it worked together with DAA to head off at the pass any attempts by Aboriginal communities in the Territory to establish Aboriginal Councils under the Commonwealth legislation.

The argument was that mainstream local government should prevail and cover the field. The strategy of the CLP government in the 1980’s was canny and effective. What they did was to create a special form of local government entity, the community government council, which in many respects accommodated the identities and aspirations of the targeted remote communities.

In some community government ‘schemes’ voting rights were limited to Aboriginal people with recognised cultural connections to the relevant land area, and to those non-Aboriginal people formally adopted into local clans. Alternatively, the franchise could be restricted by reference to a minimum period of years that a resident had to have lived in the area. Instead of collecting conventional local government rates, community government councils were allowed to charge service fees, as we did at Nguiu in the early 1990’s. And there was an allowance for Aboriginal custom in the context of decision-making.

Applications by a number of communities to become Aboriginal Councils under the Federal legislation were objected to by the Territory government, and the regulatory body in Canberra simply never processed them. Over the years, remote Territory communities became accustomed to and reasonably comfortable with the community government model as a sort-of halfway house between mainstream local government and a Territory version of an Aboriginal Council.

The Commonwealth repealed the Aboriginal Councils and Associations Act in 2006, with barely a whimper of protest from the opposition or the cross-bench. The way was then clear for the Territory Government to introduce wall-to-wall local government mainstreaming, binning the longstanding community government council in favour of the ridiculously named “shires”.

We were saved at 11th hour before last year’s Federal election from a referendum seeking constitutional recognition for local government as a ‘third tier of government’. In my view, the passage of such a referendum would have been the kiss of death for Aboriginal self-determination in the Northern Territory. It would have elevated and legitimised local government of the kind which has become standardised down south, and closed the door on the development in the NT of hybrid or customised self-determination options.

A last minute decision was made that local government referendum question shouldn’t be determined at the same time as the Federal election, but it is still lurking there, ready to be activated at some future time, perhaps in conjunction with other proposed referendum questions.

I am not saying race-based bodies should replace the existing shires, but what I am saying is that there should be maximum flexibility into the future in terms of the establishment and evolution of entities tasked with providing local government-type services on Aboriginal land in the Territory.

So my first constitutional reform contribution is a negative one. Do not vote in favour of constitutional entrenchment of local government.

My second constitutional reform contribution is this. Under section 51 of the Constitution, the Commonwealth Parliament has the power to make laws for the “peace, order and good government of the Commonwealth” with respect to various things. But under section 122 of the Constitution, it is simply allowed to “make laws for the government” of the Northern Territory.

For reasons I have attempted to spell out, I don’t believe the 2007 Intervention legislation was for the “peace, order and good government” of the Northern Territory. Just as the Commonwealth legislation which has been enacted for the purpose of dumping nuclear waste from France in the Territory is not a law for the “peace, order and good government” of the Northern Territory. Section 122 doesn’t require such a law to be for the “peace, order and government” of the Northern Territory, it just has to be “for the government of” the Northern Territory.

Personally, I think neither the Intervention legislation nor the nuclear waste dump legislation can be characterised as being “for the government of” the Northern Territory, but that is pretty low bar for the Commonwealth to clear.

In my opinion what is needed is an amendment to section 122, making it clear that the Commonwealth government should be regarded as having a fiduciary duty towards the Northern Territory and its citizens and prohibiting the making of laws under s 122 that have an ulterior Commonwealth purpose. If possible, there should also be an explicit obligation not to amend ALRA without the consent of those Aboriginal Territorians who have traditional interests in land throughout the Territory.