This is the second part of a two part guest post by Darwin-based legal academic Ken Parish* that was presented at the Northern Territory Archives Centre in Darwin on Thursday 28 June 2018. You can read the second part here.

Reform of governance of Indigenous corporations

On the one hand, at the same time as the Martin Territory government was enacting its super shires legislation (it came into force on 4 September 2007) the Howard federal government was introducing its “new broom” regulatory authority for Aboriginal and Torres Strait Islander corporations now called the Registrar of Indigenous Corporations (ORIC).

Its avowed aim was to radically modernise the regulation and oversight of Aboriginal corporations and reduce waste, mismanagement and corruption by updating governance standards, educating board members about their governance obligations, and implementing early intervention strategies well before a corporation’s maladministration reached crisis levels. ORIC appears to have been extremely successful in achieving those aims. Had the Territory government adequately consulted the federal government about the ORIC reforms it might have realised that requiring all Aboriginal community local council bodies to bring themselves under the Federal regime and submit to ORIC prudential supervision would have been a much better policy solution than their wholesale abolition.

Incidentally, there is an argument, which in my view is quite a strong one, that the Martin/Henderson government’s super-shires scheme (which continues to operate albeit with some amendments), which confiscated all the assets and undertaking of locally controlled Aboriginal community councils and transferred them to the new “super-shires” by Ministerial action, is “constitutionally” invalid because it breaches both the prohibition on acquisition of property on unjust terms (section NT(S-G)A and the prohibition on Ministerial action which affects rights in relation to Aboriginal land. For reasons best known to themselves the major land councils chose not to challenge the legislation.

A central Australian remote community council (see: Amoonguna Community Inc & Ors v Northern Territory of Australia) sought to challenge it but was prevailed on to settle before hearing despite winning most of the preliminary skirmishes. The Territory Government ground them into submission by seemingly endless interlocutory applications which the Government could afford while the Amoonguna community could not.

The Howard/Brough “Emergency” Response

But then again, it is likely that the Howard federal government and Minister Mal Brough would not have been helpful or informative even if Clare Martin or Elliot McAdam had tried to consult them. Because at the same time as Martin and McAdam were introducing super shires and the federal government was implementing its ORIC reforms (the ORIC reforms came into force on 1 July 2007), Howard and Brough were also secretly plotting their NT Emergency Response under the pretext of addressing a crisis of child sexual abuse in remote Territory Aboriginal communities revealed by the Little Children Are Sacred report.

In the eyes of many, the Emergency Response was mostly just a calculated political wedge designed in a desperate bid to salvage the political fortunes of Prime Minister John Howard against a much more popular federal Labor leader in Kevin Rudd.

The Emergency Response was even more authoritarian and anti-democratic than the Martin government’s super shires scheme. It involved sending in the troops to enforce a federal takeover of 50% of the Territory’s landmass against the wishes of both the Territory Labor government and its Aboriginal population. The Emergency Response was announced on 21 June 2007.

Howard and Brough no doubt calculated that the Rudd Labor Opposition would feel compelled to reject this outrageous intervention and the Coalition would then march into the 2007 federal election masquerading as the champions of abused children in Aboriginal communities by contrast with a Labor Party under the sway of left-wing apologists for perverts. But Kevin Rudd didn’t fall for it. He happily embraced the Emergency Response and eventually adopted it as his own.

The rest is history.

In contrast to Rudd, Clare Martin didn’t happily accept the Emergency Response at all. She vehemently opposed it. After all, her government was in the process of adopting the well-considered recommendations of the Little Children Are Sacred report, which would almost certainly have worked had they ever been implemented because, unlike Howard’s Emergency Response, they were the result of careful consultation with affected communities.

According to Clare Martin at last month’s NT Governance Summit, she urgently rang John Howard in an attempt to arrange a meeting to sort out the apparent misunderstanding. Howard refused to meet her. In pragmatic political terms Rudd’s unprincipled embrace of the Howard Intervention proved very successful, at least in the short run. Rudd defeated Howard at the federal election held on 24 November 2007. Both Howard and Brough lost their seats in Parliament. It is alleged that Rudd phoned Clare Martin the next day and told her he expected her to resign as Chief Minister for the greater good of the ALP, and be replaced by her opportunist colleague Paul Henderson who was just as willing as Rudd to eat Howard’s policy poo sandwich and implement the Emergency Response.

Martin denies that the phone call occurred but in any event she resigned, Henderson replaced her and managed to win the 2008 Territory election by the skin of his teeth, but then lost the 2012 election as a direct result of his public stewardship of both the super shires scheme and the Emergency Response. Some would say it was belated political karma.

Further reflection

Of course that karma observation flows from an implicit value judgement that the policy responses of John Howard and Mal Brough: and to a lesser extent Clare Martin, Kevin Rudd and Paul Henderson, were driven by cynical political calculation. A more charitable and probably more accurate evaluation is that a significant contributor to those policy responses was a genuinely horrified if misguided reaction to the horrendous levels of family and community violence and gross dysfunction revealed first by Tony Jones and Lateline and then graphically confirmed by the Little Children Are Sacred report.

It was undeniably true that the appalling situation is in large part a consequence of the “rivers of grog”, illicit drugs, gambling and endemic unemployment so powerfully described in Little Children Are Sacred. That was never really a secret to anyone who bothered to look, but Rex Wild and Pat Anderson did everyone a favour by confronting the politicians with the harsh reality in such a stark manner that they could no longer afford to keep ignoring it.

The mistake the politicians made (although Clare Martin was an honourable exception) was to conclude that this very long-standing “emergency” demanded that the white politicians and bureaucrats urgently devise and impose their own “expert” punitive, paternalistic policy solutions on those recalcitrant, irresponsible black fellas who wouldn’t even protect their own children from the thugs and paedophiles in their midst. It was a sort of Bill Leak-style racist assumption writ large and imposed as government policy, and it was grossly offensive and utterly unfair to Aboriginal Territorians.

Most Aboriginal people are far more acutely aware of the problems in their own communities than any white politician or bureaucrat. They live with the consequences every day and battle against them as best they can with the inadequate resources they have available. What they needed (and still need) was mutually respectful, cooperative, well resourced, community-based, “human centred” policy responses. Decades of research and practical experience show that those are the only sorts of programs that work. What they got instead, with the Emergency Response and to a slightly lesser extent the super shires scheme, was a military invasion of their communities which imposed ill-considered paternalistic solutions on Aboriginal people who were apparently conceived by the politicians as naughty children who had to be forced to do the right thing and whose own views and lived experience were unworthy of consideration. It is hardly surprising that the Emergency Response did not work, nor that its rebadged and only slightly less paternalistic successor Closing the Gap has been only marginally more successful. Aboriginal affairs policy remains blighted by the New Paternalism ushered in by the Howard Intervention.

Nothing much will change until the underlying arrogant assumptions and attitudes are revised.

Reconciling the Two Towers – Voice, Treaty, Truth

It 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. Given that approximately fifty percent of the NT’s land mass is now Aboriginal land (much of it under Commonwealth Aboriginal Land Rights (Northern Territory) Act (“ALRNTA”) inalienable title), there is no doubt that statehood without patriation to NT control of the ALRNTA would be very unsatisfactory.

Moreover, 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 in 2015. Finding a way to cut through this Catch 22 is essential to the success of any statehood proposal, and indeed to successful self-government reform irrespective of whether the Territory ever becomes a state. Entrenching Aboriginal land rights and other rights in a constitutional bill of rights would of course 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 almost certainly doom it to failure.

A treaty would also help.

My idea instead builds on a proposal by Tony McAvoy SC, Australia’s first Indigenous senior counsel, and more recently adopted in the Uluru Statement From the Heart, for a First Nations Representative Assembly at a national level in conjunction with negotiating a treaty (or series of treaties). At Northern Territory level such an Assembly would be complementary to the negotiation and implementation of a treaty between the Northern Territory government and the Territory’s First Nations, a development to which Labor Chief Minister Michael Gunner has indicated he is receptive. Canada already has an Assembly of First Nations which plays an increasingly prominent part in its governance.

Controversial Indigenous leader Noel Pearson has also argued for such a body in the federal context, although he apparently has in mind a purely advisory Aboriginal representative assembly. Pearson argues that such a body would have significant political if not binding legal authority:

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.

However, Aboriginal Territorians constitute a significant proportion of the Territory’s population. Because of their legitimate demand that their land rights be securely protected, the sort of First Nations Assembly we need here is not a mere advisory council of elders, but an Assembly forming part of the Territory’s Parliament that would have real determinative and decision-making powers in relation to Territory laws and policies vitally and directly affecting Aboriginal people.

In the Territory context such a body could be established straight away by ordinary legislation. It would be purely advisory in most respects, as Pearson has in mind. However, the First Nations Representative Assembly would have veto rights over any Territory law directly affecting Aboriginal land ownership and management. In other words it would function in that respect as a true Upper House of Parliament. Aboriginal land would be more securely protected under such a system than it is now, because any Territory bill directly affecting rights of ownership or management of Aboriginal land could only become law if passed by the First Nations Representative Assembly sitting as the upper house of the Territory Parliament.

The Assembly would fulfil an even more powerful role when or if the Territory achieves statehood and control of the ALRNTA is “patriated” to the new state. Regulations (see Regulation 4(2)(b)) under the Northern Territory (Self-Government) Act 1978 (Cth) already contain restrictions on the ability of the Territory Parliament or Executive to interfere with ALRNTA land rights and management of Aboriginal land. However those restrictions were arguably ignored by the Legislative Assembly when the Martin/Henderson Labor government enacted its “super shires” scheme in 2007-8.

A First Nations Representative Assembly sitting as the upper house of the Territory Parliament would ensure that this could not happen in future. Many Aboriginal Territorians have historically seen the Federal Parliament as the best guarantor of secure land rights. That is understandable given the history since self-government in 1978 of total opposition to all land claims by previous CLP governments at Territory level. However, the Howard federal government more recently stripped away traditional owners’ rights to control their own land as part of the Intervention or “Emergency Response” legislation in 2007, and the Rudd/Gillard Labor government adopted that punitive, paternalistic approach when it achieved government.

As a result, it is apparent at least to some Aboriginal Territorians that no political party and no level of government can be trusted to protect Indigenous rights. Only secure legislative and institutional protections, along with a treaty capable of enforcement through the courts, can provide secure rights to self-determination. Indeed that approach is the basis in political philosophy of the system of separation and division of law-making and executive powers and broader democratic checks and balances that underpins western “liberal democratic constitutionalism” of which Australia is a part.

This realisation of the need for secure institutional protections (rather than just relying on whitefella goodwill that may give way to other priorities when it suits the politicians) informs the development in Arnhem Land of the Yolngu Nations Assembly. Recently elected Independent MLA for Nhulunbuy Mark Yingiya Guyula plays a prominent role in that Assembly. Its objectives include a treaty. A First Nations Representative Assembly that is a formal part of the Territory’s structure of government should also be an important part of those institutional protections.

It would give a treaty real enforceable “teeth” because the Assembly would also have the legislative veto powers of an upper house of the Territory Parliament in relation to any law directly affecting treaty rights negotiated and agreed between the Northern Territory government and the Territory’s First Nations clans.

While the structure and membership of the Assembly would be determined after careful consultation and consideration, one possible model that may serve as a starting place 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 might initially consist of all current Aboriginal MLAs and an Aboriginal representative of each of the four Territory land councils and each of the three Aboriginal legal aid organisations. Thus it would have something like 13 or 14 members. The First Nations Representative Assembly could be implemented immediately by ordinary Territory legislation, but that would be just an advisory council of elders if that approach was adopted.

Nevertheless it might be worth creating it in that way initially so that people get used to it and can see that it is a positive development not a threat. The federal Parliament would need to pass amendments to the Territory’s “constitution”, the Northern Territory (Self-Government) Act 1978 (Cth), for the Assembly to be given the partial determinative powers of an upper house of the Territory Parliament. However there is no reason why the federal Parliament would refuse those amendments if there was a bipartisan political will among Territory politicians that it should be done. Implementing a First Nations Representative Assembly would be visionary, practical and enlightened, not only on a local but a national and international level.

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 fifty percent of the land, realistically the Territory can never achieve its full economic or social potential without some such dramatic and effective process.