Northern Territory

Robyn Smith

Key terms/names

Aboriginal land councils, Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA), administrator, Commonwealth of Australia Constitution Act 1900 (UK) (the Constitution), Euthanasia Laws Act 1997 (Cth), Northern Territory Acceptance Act 1910 (Cth), Northern Territory (Administration) Act 1910 (Cth), Northern Territory National Emergency Response Act 2007 (Cth), Northern Territory Representation Act 1888 (SA), Northern Territory Representation Act 1922 (Cth), Northern Territory (Self-Government) Act 1978 (Cth), Northern Territory Surrender Act 1907 (SA), Rights of the Terminally Ill Act 1995 (NT) (ROTI), unicameral

 

The Northern Territory (NT) comprises one-fifth of Australia’s land mass and has a population of 244,300,1 of which 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 5,140 electors.2

History

The NT was part of the colony of New South Wales (NSW) from 1849 until 1863. It then became part of South Australia (SA) until 1911,3 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,4 voted for the six senators representing SA and, from 1903, the NT was included in SA’s federal division of Grey.5

In 1911, the NT was ceded by SA to the Australian government. 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,6 which would inevitably have resulted in non-white representation in the federal parliament.7

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.8

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’.9 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 1958.10 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’.11

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.12 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),13 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’.14

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; in its absence, the Self-Government Act is effectively the constitution.

Financial arrangements and economy

The NT has been funded as a state by the federal government since 1988.15 Funding arrangements apply:

on the principle of ‘horizontal fiscal equalisation’ meaning that funding is provided on the basis of what it costs to deliver a service per person in the NT. Distance is factored in to the Commonwealth’s formula, often to the chagrin of the more populous states.16

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’.17

Because of the small population, 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 these are subject to minimisation by the companies concerned and don’t contribute a great deal to the NT budget.18 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 Australia19 since its creation in 1933.

The enduring lack of comprehensive federal policy in relation to northern Australia has been lamented by Megarrity20 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:

The small size of the urban centres and the almost total lack of any large-scale industrial development has meant that the Labor party has no ‘natural’ base of membership and money. [Additionally,] organization of an industrial wing and a branch structure was made difficult by the vast distances, the poor communications and the costs of transport.21

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 communities22 and candidates 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,23 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.

Elections

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 1974.24

Election

Enrolment

Seats won

Leaders

Government

 

Ind/Other

ALP

CLP

ALP

CLP

 

1974

39,027

2 (Ind)

0

17

NA

Goff Letts

CLP

1977

43,284

1 (Ind)

6

12

Jon Isaacs

Paul Everingham

CLP

1980

53,218

1 (Ind)

7

11

Jon Isaacs

Paul Everingham

CLP

1983

62,178

0

6

19

Bob Collins

Paul Everingham

CLP

1987

74,633

2 (Ind)

1 (Nat)

6

16

Terry Smith

Steve Hatton

CLP

1990

82,261

2 (Ind)

9

14

Terry Smith

Marshall Perron

CLP

1994

95,007

1 (Ind)

7

17

Brian Ede

Marshall Perron

CLP

1997

101,886

0

7

18

Maggie Hickey

Shane Stone

CLP

2001

105,506

2 (Ind)

13

10

Clare Martin

Denis Burke

ALP

2005

111,954

2 (Ind)

19

4

Clare Martin

Denis Burke

ALP

2008

119,814

1 (Ind)

11

13

Paul Henderson

Terry Mills

ALP

2012

123,805

1 (Ind)

8

16

Paul Henderson

Terry Mills

CLP

2016

135,506

5 (Ind)

18

2

Michael Gunner

Adam Giles

ALP

Table 1 Northern Territory general election results, 1974–2016. Source: ntec.nt.gov.au

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,25 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:

very little thought was given back in 1978 to what legal and institutional relationships needed to exist between the new government, land councils and traditional owners to allow for a smoothly functioning polity. Those relationships remain confused and ill-defined.26

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 direct control over their land because power in relation to decisions about Aboriginal land is vested in Aboriginal land councils27 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’.28

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 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’.29

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’.

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, including the relatively small population, negotiations with the federal government on terms and conditions of admission30 under section 106 of the Constitution31 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 – two issues that were identified in NT-wide surveys undertaken by the Statehood Steering Committee. The latter concerns resulted in a dedicated fact sheet32 explaining that these matters are not subject to Commonwealth laws and are the responsibility of the NT government.33

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.34

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:

Now that a constitution for a state of the NT has been recommended by the statehood convention and endorsed by the NT parliament, do you agree that we should become a state?

The ‘constitution’ referred to in the referendum question provided for the Premier to sack the Governor, which would render a Governor little more than a public servant and would potentially establish the state of the NT as a benign dictatorship.35

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.

Commonwealth funding arrangements, particularly in the area of Aboriginal disadvantage, have been contentious since the advent of self-government. Similarly, Goods and Services Tax distribution between the states under Grants Commission relativities is regarded as inadequate.

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

Australian Bureau of Statistics (ABS) (2016). Australian demographic statistics, December 2015. Cat. No. 3101.0. Canberra: ABS. https://www.abs.gov.au/ausstats/abs@.nsf/lookup/3101.0Media%20Release1Dec%202015

Beadman, Bob (2017). Remarks to the Key Forum of the Garma Festival of Traditional Culture. Arnhem Land, NT, 6 August.

Brennan, Sean (2006). Economic development and Land Council power: modernising the Land Rights Act or same old same old. Australian Indigenous Law Review 10(4): 1–34. http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2006/65.html

Castan Centre, Monash University (n.d.). What is the Northern Territory Intervention? https://bit.ly/363TqzB

Egan, Ted (2017). Gilruth: a complex man. Alice Springs, NT: Ted Egan Enterprises.

Heatley, Alistair (1990). Almost Australians: the politics of Northern Territory self-government. Darwin: Australian National University, North Australia Research Unit.

Horne, Nicholas (2008). Northern Territory statehood: major constitutional issues. Parliamentary Library Research Paper 21 (2007–08). Canberra: Parliament of Australia. http://www.aph.gov.au/binaries/library/pubs/rp/2007-08/08rp21.pdf

Jaensch, Dean (1981). The party system in the late 1970s. In Dean Jaensch and Peter Loveday, eds. Under one flag: 1980 Northern Territory election. Sydney: Allen & Unwin.

Jaensch, Dean, and Robyn Smith (2015). Turning 40: the Legislative Assembly of the Northern Territory 1974–2014. Darwin: Historical Society of the Northern Territory.

James, Felicity (2016). Election 2016: half of NT’s Indigenous population not enrolled to vote, Electoral Commission says. ABC News, 27 May. https://www.abc.net.au/news/2016-05-25/half-indigenous-people-in-nt-not-enrolled-to-vote-aec-says/7446416

Lockwood, Douglas (1968). The front door: Darwin 1869–1969. Adelaide: Rigby.

Megarrity, Lyndon (2018). Northern dreams: the politics of northern development in Australia. Melbourne: Australian Scholarly Publishing.

National Archives of Australia (n.d.). Electoral franchise and territorians. http://guides.naa.gov.au/records-about-northern-territory/part1/chapter7/7.1.aspx

Northern Territory Government (2019). Budget papers 2019. https://budget.nt.gov.au/budget-papers

Northern Territory Statehood Steering Committee (2005). Territory way of life: firecrackers and speed limits. Fact sheet 12, July. Darwin: NT Government.

Parish, Ken (2018). Reforming Northern Territory self-government – reconciling the two towers of power – part one. Crikey, 3 July. https://blogs.crikey.com.au/northern/2018/07/03/reforming-northern-territory-self-government-reconciling-the-two-towers-of-power-part-one/

Powell, Alan (2018). Forgotten country: a short history of Central Australia. Melbourne: Australian Scholarly Publishing.

—— (1982). Far country: a short history of the Northern Territory. Carlton, Vic.: Melbourne University Press.

Productivity Commission (2017). Transcript, Darwin hearing, 28 November. Canberra: Australian Government.

Redistribution Committee (2019). 2019 NT electoral boundary redistribution: report on the first proposed redistribution of the Northern Territory into divisions. Darwin: Redistribution Committee. https://bit.ly/2OggTH1

Sloane, Michael (n.d.). Representation of Commonwealth territories in the Senate. Papers on Parliament No. 64. Canberra: Parliament of Australia. https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/pops/pop64/c07

Smith, Robyn (2013). Arcadian populism: the Country Liberal Party and self-government in the Northern Territory 1978–2005. Darwin: Self-published.

—— (2008). Northern Territory parliamentary report. Australasian Parliamentary Review 23(2): 261–67.

Walker, Frederick (1985). A short history of the Legislative Council for the Northern Territory. Darwin: Legislative Assembly of the Northern Territory.

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.

1 ABS 2016. Note that the population has been in decline since then as mining projects have been completed. Further, there is a significant ‘fly-in, fly-out’ (transient) workforce on mining projects.

2 Redistribution Committee 2019.

3 Jaensch and Smith 2015, xi.

4 This included Aboriginal people – possibly as an administrative oversight – although they were unaware of their right and not at all familiar with the electoral process.

5 National Archives of Australia n.d.

6 Principally Chinese, engaged in mining and commerce, but also Japanese, engaged in the pearling industry, and Malays, Filipinos and Indonesians, engaged in fishing enterprises.

7 See, for example, Egan 2017, 27, 43.

8 Jaensch and Smith 2015, xi.

9 Jaensch and Smith 2015, xii.

10 Jaensch and Smith 2015, xii.

11 Jaensch and Smith 2015, xii.

12 This anomaly was carried over at the time of self-government. The speaker of the Legislative Assembly, unlike speakers of other parliaments, has two votes: a deliberative and, in the event of a tied vote, a casting one.

13 Also known as ‘the Andrews Bill’ because it was sponsored by the Member for Menzies (Victoria) Kevin Andrews MHR.

14 Castan Centre, Monash University n.d.

15 Smith 2013, 25.

16 Smith 2013, 93.

17 Beadman 2017.

18 See Northen Territory Government 2019.

19 For example, there is no distinction between the remote community of Papunya in Central Australia and Parramatta in urban NSW so the same ‘loading’ applies to both communities. See also Beadman in Productivity Commission 2017.

20 Megarrity 2018, 183.

21 Jaensch 1981, 64.

22 Jaensch and Smith 2015, 62–3.

23 See, for example, James 2016.

24 More detailed results and those relating to by-elections can be found at Jaensch and Smith 2016, 73–81, or on the NT Electoral Commission website.

25 Note that the referendum did not confer voting rights on Aboriginal people. The federal parliament provided for Aboriginal people to vote in 1962.

26 Parish 2018.

27 There are four land councils in the NT: the Northern Land Council, Central Land Council, Tiwi Land Council, and Anindilyakwa Land Council.

28 Brennan 2006, 3.

29 Sloane n.d.

30 Including Senate representation (see also federal representation).

31 Horne 2008.

32 Northern Territory Statehood Steering Committee 2005.

33 It is the case, however, that the Commonwealth government made abolition of open speed limits a condition of federal funding. The NT complied.

34 Smith 2008, 265.

35 Smith 2008, 264. See also Smith 2013, 27.