Editors --- "A Draft Constitution for the New State of the Northern Territory - Digest" [1998] AUIndigLawRpr 29; (1998) 3(3) Australian Indigenous Law Reporter 458

A Draft Constitution for the New State of the Northern Territory

On 11 August 1998, the Australian Prime Minister, Mr John Howard, issued the following statement:

The Federal Government has agreed in principle that Statehood should be granted to the Northern Territory, subject to terms and conditions to be determined by the Federal Parliament. ... The Government has also agreed to the Northern Territory Chief Minister's proposal that a Territory Referendum on Statehood be held at the same time as the next Federal Election. ...

The Northern Territory Statehood Convention in April this year was a significant event, setting out a draft State Constitution for the Northern Territory. The Chief Minister, Shane Stone, has effectively prepared the way for Statehood, through mechanisms such as the Statehood Convention.

The Commonwealth Government's preferred process is under s. 121 of the Constitution through an Act of Federal Parliament. Direct negotiations will now commence with the Northern Territory Government on the process, timetable and terms and conditions of Statehood. ... A range of sensitive areas of Commonwealth Government interest need to be resolved. These matters include Aboriginal land rights, payment of mining royalties, ownership of uranium, environmental control of uranium mining, the protection of world heritage areas, the management of two Commonwealth national parks, industrial relations powers and the possible incorporation of the Indian Ocean Territories and the Territory of Ashmore and Cartier Islands into the NT.

On 13 August 1998 the Northern Territory Parliament adopted, with small changes, the constitution prepared by the Constitutional Convention (set out below) as the Draft Constitution of the State of the Northern Territory.

^Comment*

Section 121 of the Commonwealth Constitution provides: "The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit." There is strong support for the view that this provision would enable: (1) the Northern Territory to be admitted as a State; and (2) the Commonwealth Parliament would be free to impose (almost) any conditions on the new state including conditions relating to the exercise of legislative, executive and judicial power in the new state that did not apply to the exercise of such power in any other state. [1]

Achieving statehood for the Northern Territory has long been part of the platform of the two major political parties of the Northern Territory -- the Country Liberal Party and the Labor Party. [2] Commencing in 1985, the Sessional Committee on Constitutional Development, a bipartisan committee of the Northern Territory Parliament, published Discussion Papers, Information Papers and an Interim Report before including a final draft constitution in the Final Report of 1996. [3]

In December 1997 the Chief Minister of the Northern Territory, Mr Shane Stone QC, announced a timetable that would enable statehood to be achieved by the year 2001. He announced a three-stage process for the task of drafting a State Constitution: (1) A Constitutional Convention would be convened over eight days between 26 March and 9 April 1998 to determine the form of the new state constitution (the Convention); (2) the draft constitution of the Convention would then be considered by the Northern Territory Parliament; (3) the Northern Territory Parliament would determine the "the most appropriate means of adopting the draft constitution and of ascertaining the level of popular support." Once the constitution is drafted the Chief Minister proposes to secure an agreement between the Northern Territory and Commonwealth Governments incorporating the agreed terms and conditions of the proposed grant of statehood. The Commonwealth Government has encouraged the Northern Territory Government -- at least to pursue the Convention. [4]

At the time of writing, the only stage that has been completed was the holding of the Convention. The Convention resolved to undertake the task of drafting a constitution by making significant amendments to the final draft constitution appended to the Final Report of the Sessional Committee. Extracts of the resulting Draft Constitution are set out below under the heading "Text".

Indigenous peoples comprise one-quarter of the population of the Northern Territory. Their likely concerns in relation to the process described above may be grouped into three categories:

(1) Is it proposed to negotiate with Indigenous peoples about an appropriate mechanism for determining the future political status of the Northern Territory? There can be few better opportunities for testing Australia's commitment to the principle of self-determination for Indigenous peoples than when the political status of the Northern Territory is under review. [5] Self-determination involves more than the Commonwealth or Northern Territory Government consulting Indigenous peoples about the future political status of the Northern Territory before announcing a determination. [6] The starting point requires negotiating with Indigenous peoples about an appropriate framework for future negotiations. Indigenous organisations were not consulted about whether to hold the Convention or about the source of Indigenous nominees to the Convention. The 53 delegates to the convention comprised 27 delegates selected by organisations nominated by the Northern Territory Government with the balance of delegates appointed directly by the Government. The Government allocated four places to the Aboriginal and Torres Strait Islander Commission and two places to the four Land Councils established under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). [7] The attitude of the Commonwealth Government to the role Indigenous peoples in the creation of a new Australian state remains to be seen.

(2) What happens to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)? The primary source of Commonwealth legislative power in relation to the Northern Territory is s. 122 of the Commonwealth Constitution. It provides that the Commonwealth Parliament may make laws for the government of any territory. [8] The power of the Commonwealth Parliament to make laws for the Northern Territory is a broad power, requiring only some connection between the law and the Territory. [9] It includes the power to enact domestic laws for the Northern Territory as well as the power to enact laws which provide for Government (including a legislature) of the Northern Territory. The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act) is an example of a domestic law of the Northern Territory that has been enacted by the Commonwealth. [10] The Land Rights Act concerns a significant proportion of Indigenous people of the Northern Territory -- not least because the Act regulates the rights and obligations of Indigenous peoples and other interested parties in relation to land and other natural resources over approximately 40 per cent of the Northern Territory. The Country Liberal Party Government has argued that the Land Rights Act should be "transferred" to the new State and that the new State ought enjoy unqualified legislative power to repeal or amend the Act. If this were to occur, certain constraints upon the power of the new state would exist, including: any terms and conditions imposed by the Commonwealth as a condition of statehood; the Racial Discrimination Act 1975 (Cth); and the provisions of the Draft Constitution relating to the acquisition of property on just terms (cl. 3.1(3)) and the protection of certain rights of minorities (cl. 8) (see the text below). The Land Councils have rejected the suggested transfer of the Act. [11] The Convention rejected the "compromise" suggestion of the Sessional Committee which was to transfer the Land Rights Act to the Northern Territory and entrench the Act such that it could not be amended without a special majority of the Parliament. The Sessional Committee compromise was contained in Pt. 7 of the final draft constitution and, although rejected by the Convention, is included in the text below.

(3) What is the effect of the provisions of the Draft Constitution concerning Indigenous peoples? Apart from cl. 3.1(3) prohibiting the acquisition of property otherwise than on just terms, the other clauses of particular significance to Indigenous peoples are the Preamble noting the prior occupation and governance of the Northern Territory by "various groups of Aboriginal people"; cl. 2.1.1 providing that Aboriginal customary law is a source of law and detailing a mechanism of achieving recognition of that source and cl, 8 protecting the exercise by all persons of language, social, cultural and religious practices. This is not the place to undertake a detailed analysis of these clauses. It should be noted, however, that the text of cl. 8 obviously draws upon art. 27 of the International Covenant on Civil and Political Rights which has proved to be a significant source of rights to Indigenous peoples in Canada and Scandinavian countries. [12] On a less positive note, it should also be noted that one consequence of cl. 2.1.1 of the Draft Constitution is that the recognition of Aboriginal law has been postponed -- arguably for an indefinite period. [13]

The document reproduced below incorporates the Resolutions adopted at the Statehood Convention, held in Darwin between 26 March-9 April 1998, to amend the Final Draft Constitution prepared by the Northern Territory Legislative Assembly's Sessional Committee on Constitutional Development. As noted above, this document may be amended as a result of subsequent consideration of this instrument by the Northern Territory Parliament and the "terms and conditions" of statehood that may be imposed by the Commonwealth Parliament.

PREAMBLE

1. Since time immemorial the land we now call the Northern Territory of Australia (the Northern Territory) was occupied by various groups of Aboriginal people who lived and defined their relationships between each other, with the land and with their natural and spiritual environment under mutually recognised systems of governance and laws.

2. Since the commencement of the colonisation of Australia in 1788, others have come to this land and together with its Aboriginal occupants have contributed to its development and to the rich cultural diversity of its peoples.

3. The Northern Territory since has passed through various stages of governance as a part of the Colony of New South Wales, as part of the Colony, and later the State, of South Australia, and as a Territory of the Commonwealth of Australia until its present stage when its people, by referendum, have expressed their wish to establish the Northern Territory as full, equal and (subject to the Constitution of Australia) indissoluble State of Australia.

NOW WE THE PEOPLE OF THE NORTHERN TERRITORY, proudly calling ourselves Territorians, wishing to preserve a harmonious, tolerant, culturally diverse and united society, and affirming our intention that the life and liberty and property of all the people of the Territory should be protected and that all shall stand as equals before the law in enjoyment of that protection, declare this to be the Constitution of the State of the Northern Territory:

PART 1 -- THE NORTHERN TERRITORY

1. Establishment of Body Politic

There is hereby established a body politic under the Crown in and for the Northern Territory of Australia by the name of the State of the Northern Territory.

PART 2 -- LEGAL SYSTEM OF THE NORTHERN TERRITORY

DIVISION 1 -- LAWS OF THE NORTHERN TERRITORY

2.1 Laws

The laws of the Northern Territory consist of --

(a) this Constitution;

(b) the Acts of the Parliament;

(c) enactments, including subordinate legislative enactments, in force immediately before the commencement date and continued in force by this Constitution;

(d) laws made under or adopted by or under this Constitution or any of those laws, including subordinate legislative enactments;

(e) the common law; and

(f) other laws recognised as a source of law by this Constitution.

2.1.1 Aboriginal Customary Law

Aboriginal customary law is recognised as a source of law in the State to be enacted as the written law of the State (within 5 years of the commencement date or such further period as Parliament determines) by the Parliament passing laws in substantial accordance with the results of negotiations and consultations between the State Government and the representatives of the traditional Aboriginal structures of law and governance of the Aboriginal peoples of the Territory providing for the harmonisation of the customary law with other laws in force in the State (including the common law).

Without limiting the generality of the matters that shall be so negotiated and consulted upon, such an Act or Acts may provide for:

(a) recognition of traditional Aboriginal structures of law and governance;

(b) delegation of powers and functions to the appropriate bodies under these structures in relation to the administration and enforcement of law and order in accordance with customary law;

(c) co-operative arrangements between institutions and officers of the State (including judicial institutions and officers) and traditional Aboriginal structures of law and governance;

(d) such other arrangements, including matters of Aboriginal governance, as may be agreed between the negotiating parties.

...

PART 3 -- PARLIAMENT OF THE NORTHERN TERRITORY

DIVISION 1 -- LEGISLATIVE POWER

3.1 Legislative Power of the Northern Territory

(1) The legislative power of the Northern Territory is vested in the Parliament.

(2) Subject to this Constitution, the Parliament has power, with the assent of the Governor as provided by this Constitution, to make laws for the peace, order and good government of the Northern Territory.

(3) The power of the Parliament conferred by this Constitution in relation to the making of laws does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms.

...

DIVISION 2 -- CONSTITUTION AND MEMBERSHIP OF PARLIAMENT

3.6 Parliament

(1) There shall be a Parliament of the Northern Territory which shall consist of a single house.

...

Division 3 -- Procedure of Parliament

...

PART 4 -- EXECUTIVE

...

PART 5 -- FINANCE

...

PART 6 -- JUDICIARY

6.1 Judicial Power of the Northern Territory

(1) The judicial power of the Northern Territory shall be vested in --

(a) the Supreme Court of the Northern Territory (including that Court exercising its jurisdiction as the Court of Appeal and the Court of Criminal Appeal) and which shall be a continuation of that Court as it existed immediately before the commencement date; and

(b) in such other courts as they existed immediately before the commencement date pursuant to an enactment or as the Parliament establishes by an Act.

...

6.3 Doctrine of Separation of Powers

Subject to the supervisory and appellate jurisdiction of the Supreme Court, nothing in this Constitution prevents the passing by the Parliament of an Act --

(a) conferring judicial power on a person or body outside the Judiciary; or

(b) providing for the establishment by or in accordance with an Act, or by the consent of the parties, of arbitral, conciliatory or other tribunals, whether ad hoc or otherwise, outside the Judiciary,

on such terms and conditions as the Parliament thinks fit.

PART 7 -- ABORIGINAL RIGHTS

The Constitutional Convention resolved that this Part of the Final Draft Constitution as prepared by the Northern Territory Legislative Assembly's Sessional Committee on Constitutional Development be deleted. It does not form part of the "current draft".

7.1 Protection of Aboriginal Land Rights

(1) Subject to this Constitution, the Parliament shall enact an Organic Law entitled the Aboriginal Land Rights (Northern Territory) Act which shall contain provisions based on those contained in the Aboriginal Land Rights (Northern Territory) Act 1976 of the Commonwealth as in force immediately before the commencement date, but with variations to give effect to that Act as a law of the Northern Territory and with such other variations as are determined by the Parliament, being in either case variations in a form agreed to by the Commonwealth.

(2) An Organic Law enacted in pursuance of subs. (1) may be amended only by another Organic Law in accordance with s. 2.5, and the affirmative votes required for such an amendment under that section shall be equal to or more than [Alternative 1: two-thirds; Alternative 2: three-quarters].

(3) Notwithstanding anything in the Aboriginal Land Rights (Northern Territory) Act as an Organic Law, an estate in fee simple in Aboriginal land shall not be capable of being sold, assigned, mortgaged, charged, surrendered, extinguished, or otherwise disposed of unless, after enquiry, a court or body established or identified by an Organic Law is satisfied that --

(a) all Aborigines having an estate or interest in that land, being of full legal capacity, have been adequately informed of, and a majority of them have voluntarily consented to, the proposed transaction; and

(b) the proposed transaction is otherwise in the interests of all Aborigines having an estate or interest in, or residing on, that land.

(4) An Organic Law shall provide that the court or body referred to in subs. (3) shall be constituted by a Judge nominated by the Chief Justice, that it shall have power to conduct such enquiries as it considers necessary and to issue a summons for the attendance of witnesses and for the production of documents and that the findings of that court or body shall be subject to appeal as if it was a civil judgment of a single Judge.

(5) Notwithstanding anything in the Aboriginal Land Rights (Northern Territory) Act as an Organic Law, but subject to subs. (6), Aboriginal land shall not be resumed, compulsorily acquired or forfeited by or under a law of the Northern Territory.

(6) An Organic Law may provide for the compulsory acquisition of an estate or interest in all or any part of Aboriginal land where that estate or interest is less than an estate in fee simple, providing that the acquisition is on just terms and for or in furtherance of any purpose which is for the benefit of the public (other than as a park) and whether or not that purpose is to be effected by the Northern Territory or by any other person or body, and otherwise upon terms and conditions not less favourable than for the compulsory acquisition of other land under a law of the Northern Territory.

(7) Where an estate or interest in all or any part of Aboriginal land is compulsorily acquired under subs. (6), then upon the permanent cessation of the use of that acquired land for or in furtherance of any purpose which is for the benefit of the public (and whether it is the original purpose or otherwise), and if the land is still Aboriginal land, the estate or interest so acquired is extinguished.

(8) An Organic Law may declare that any other law of the Northern Territory is capable of operating concurrently with the Aboriginal Land Rights (Northern Territory) Act as an Organic Law, and upon such a declaration, those laws shall be interpreted and applied accordingly.

["Aboriginal land" means Aboriginal land within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976, of the Commonwealth, or the Organic Law referred to in s. 7.1(1);]

7.2 Protection of Aboriginal Sacred Sites

An Organic Law shall provide for the protection of, and the prevention of the desecration of, Aboriginal sacred sites in the Northern Territory, including sacred sites on Aboriginal land, and in particular it shall regulate or authorise the entry of persons on those sites, and that Organic Law shall provide for the right of Aborigines to have access to those sites in accordance with Aboriginal tradition and shall take into account the wishes of Aborigines relating to the extent to which those sites should be protected.

[Until the enactment of an Organic Law under s. 7.2, the Northern Territory Aboriginal Sacred Sites Act as continued in force by this Constitution is hereby declared to be an Organic Law.]

7.3 Aboriginal Self-Determination

Subject to this Constitution, an Act may provide for Aboriginal self-determination and for all matters incidental thereto ["Aboriginal self-determination" means the activity of Aboriginal people in the Northern Territory exercising control over their daily lives in order to safeguard, strengthen and develop their language, social and cultural customs and traditions, religion or beliefs, economies and identities.]

PART 8 -- RIGHTS IN RESPECT OF LANGUAGE, SOCIAL, CULTURAL AND RELIGIOUS MATTERS

8.1 Language, Social, Cultural and Religious Matters

(1) Notwithstanding anything in the laws of the Northern Territory other than as provided in subs. (2) and (3), a person shall not be denied the right --

(a) to use his or her own language in his or her communications with other people speaking or understanding the same language;

(b) to observe and practice his or her own social and cultural customs and traditions in his or her relations with other people of the same tradition; and

(c) to manifest his or her religion or belief in worship, ceremony, observance, practice or teaching.

(2) The rights in subs. (1)(a), (b) and (c) shall be subject to this Constitution, and any reasonable regulation imposed by an Act in the public interest.

(3) The rights in subs. (1)(b) and (c) shall only operate to the extent that they are not repugnant to the general principles of humanity as contained in any international agreement to which Australia is a party.

PART 9 -- LOCAL GOVERNING BODIES

9.1 Local Government

(1) Subject to this Constitution, there shall continue to be a system of local government in the Northern Territory under which local governing bodies are constituted with such powers as the Parliament considers necessary for the peace, order and good government of those areas of the Northern Territory that are from time to time subject to that system of local government.

PART 10 -- TRANSITIONAL PROVISIONS

...

PART 11 -- INTERPRETATION

11.1 Definitions

In this Constitution, unless the contrary intention appears -

"Aboriginal" and "Aboriginal person" means a person who is a member of the Aboriginal race of Australia;

...

"public interest" includes the protection and maintenance of interests in or in respect of public or private property, and whether proprietary or otherwise;

...

* Martin Flynn -- Lecturer, Law School, University of Western Australia.

[1] See for example the Joint Opinion of Peter Durack and Maurice Byers included as Appendix 2 in Loveday, P and McNab, P (eds), Australia's Seventh State, 1998, NARU and Law Society of the NT Darwin, 1988 p. 135. Contrast the views in Lumb RD "The Northern Territory and Statehood" (1978) 52 ALJ 554.

[2] Loveday, P and McNab, P (eds), Australia's Seventh State, NARU and Law Society of the NT, Darwin, 1988; Gray, R, Lea, D and Roberts, S (eds), Constitutional Change in the 1990s, 1994, NT Legislative Assembly Sessional Committee on Constitutional Development and NARU.

[3] Foundations for a Common Future: Final Report of the Sessional Committee on Constitutional Development tabled in Legislative Assembly of the Northern Territory on 27 November 1996 (six volumes).

[4] See the Letter from the Federal Minister (Hon Alex Somlyay MP, Minister for Regional Development, Territories and Local Government) to the Chief Minister of the Northern Territory dated 25 March 1998 reproduced in Volume 1 of the Report of the Statehood Convention, April 1988 confirming that the Commonwealth is of the view that the Northern Territory enjoys executive authority to hold the Convention.

[5] Compare the approach of Canada and Denmark described in Jull, P & Craig, D, "Reflections on Regional Agreements: Yesterday, Today and Tomorrow" (1997) 2 AILR 475.

[6] Laws of Australia, "Aborigines and Torres Strait Islanders" Volume 1 Chapter Six "International Obligations in the Making" at para. 52; Nettheim, G, "Peoples and Populations -- Indigenous Peoples and the Rights of Peoples" in Crawford, J (ed), The Rights of Peoples (Clarendon Press, Oxford 1988) and Anaya, J, Indigenous Peoples in International Law, 1996, Oxford University Pres, New York, 1998, Clavedon Press, Oxford.

[7] One delegate to represent both the Central Land Council and Northern Land Council and one delegate to represent both the Tiwi Land Council and the Anindilyakwa Land Council. The CLC and the NLC did not send a delegate and the ATSIC delegates "walked out" part way through the Convention.

[8] See Nicholson, GR, "Constitutionalism in the Northern Territory and Other Territories" (1992) 3 Public Law Review 50; "The Constitutional Status of the Self-Governing Northern Territory" (1985) 59 ALJ 698.

[9] Kruger, Bray v Commonwealth [1997] HCA 27; (1997) 146 ALR 126 at 138 per Brennan CJ.

[10] Other examples include so much of the legislative scheme contained in National Parks and Wildlife Conservation Act 1975 (Cth) that relates to Kakadu and Uluru National Parks.

[11] See, for example, the Submission in Reply of the Northern Land Council to the Review of the Land Rights Act, 1998, which may be read on the web at <http://www.ozemail.com.au/~nlc95/Lrasub/R3.htm> .

[12] Nowak, M, UN Covenant on Civil and Political Rights: CCPR Commentary 1993 Kehl am Rheim, Engel, p. 500 ff; Pritchard S "The ICCPR and Indigenous peoples" in Pritchard S (ed) Indigenous Peoples, the United Nations and Human Rights 1998, Zed Books/Federation Press, Sydney.

[13] The fate of the recommendations contained in the Australian Law Reform Commission Recognition of Aboriginal Customary Law, 1986, do no engender confidence that either the executive or legislative arm of government in the Northern Territory will be quick to commence negotiations required by cl. 2.1.1 of the Draft Constitution for the recognition of Aboriginal law. The Northern Territory Government had not published a response to the ALRC Report until, in 1993, it responded to a recommendation of the Royal Commission that called upon all Governments to respond to the ALRC Report, 1986, stating that the Northern Territory was "in the process of implementation" of the Royal

Commission recommendations as part of the Attorney-General's "general Aboriginal law reform program". The comment was repeated verbatim in the NT Implementation Report, 1994. The 1995 implementation report contained the statement that Government was "researching proposals for the recognition of customary law which includes investigating the possibility of conferring a limited law-making power on individual communities to regulate social behaviour within their communities": NT Implementation Report,1995, Volume 2, p. 240.