Common(wealth) Knowledge #87: NT and Queensland elections to determine treaty paths

With the failure of the Indigenous Voice to Parliament, other Australian governments are working out where to go next.

With the defeat of the Indigenous Voice to Parliament last year, Indigenous communities in both the Northern Territory and Queensland may have to wait until after the NT and Queensland elections later this year to know if the promises of local treaties will be upheld.

The NT government has promised to reinvigorate its development of a treaty with its Aboriginal population, a process begun in 2018.

However, former Deputy Treaty Commissioner Ursula Raymond expressed her reservations about this promise to the ABC, stating that the government had all but abandoned its plans when it shut down the Treaty Commission in 2022.

Although the NT government admitted that progress had been slowed, it claimed that the Labor government did not want to divert attention away from the Commonwealth government’s treaty, which was resoundingly defeated in October last year. With the Voice referendum well and truly over, it can now focus on its local equivalent.

The Northern Territory is in a unique position regarding the treaty process. Section 107 of the Australian Constitution protects the legislative powers of State governments, including their power to draft Indigenous treaties.

Chief Justice Dixon and the majority of the High Court, speaking on the powers of the States in Clayton v Heffron (1960), said that, apart from the Constitution and “territorial limitations,” the States have “no limitation on [the] subject matter” of their legislation.

The Northern Territory does not enjoy this same protection. Section 120 places the self-governing Territories closer to a British-style devolved government. They have no legislative powers, except what the Commonwealth government grants to them.

On one hand, this would suggest that a federal treaty would have a greater scope, although as no draft legislation exists, it is impossible to know if the treaty would have considered this difference.

The failure of a government to deliver on a treaty is not new to the NT’s Aboriginal population, so it is not surprising that there is some reluctance to take the government’s word for it.

Former Commissioner Mick Dodson has seen both the Labor government of Bob Hawke and the Liberal/National government from the last decade fail to deliver.

The Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) promised an investigation into constitutional recognition. However, a sunsetting clause meant that this lapsed in 2018, with little progress made.

There is some concern that the NT government’s pledge will have the same destiny.

Although the NT voted against the Voice, some evidence presented by Antony Green suggests that this vote may have been skewed by Darwin, Katherine, and Alice Springs.

Following the failure of the Voice and the swing against the government, some are concerned about this being little more than lip service. However, it should be noted that Chief Minister Eva Lawler holds a marginal seat in Darwin.

Just because there wasn’t support for the federal Voice doesn’t mean that there isn’t support for a local treaty. All South Australian electorates voted against it, but the State government has passed legislation to create a treaty, a campaign promise by Labor in its bid to replace the Liberal government.

In Queensland, the situation is more complex.

In addition to needing to account for differences between mainland Aboriginals and Torres Strait Islanders, the success of a treaty is even more dependent on the election outcome.

The Liberal/National Party had initially supported treaty negotiations, leading to a bipartisan Path to Treaty Act 2023 (Qld), which created the First Nations Treaty Institute.

However, the LNP rescinded its support later that year. With most polls indicating that Labor will either lose government entirely or be forced into a minority government in a coalition with the Greens, an LNP victory is possible.

If Katter’s Australian Party retains its three MPs and One Nation retains its one MP, with all four having voted against the bill, then the LNP would only need a net gain of 9 seats. Like the NT, it has no upper house.

Although New South Wales will be waiting for its next election to decide on adopting a treaty, it is nonetheless obvious that there is growing support for treaties.

The creation of local treaties that build upon one another but also account for local demands and context is a process known as ‘cooperative federalism.’ Some readers may recall an earlier article that discussed the Uniform Defamation Laws that were passed by all states to both fill an area that the Commonwealth government didn’t have any jurisdiction over and to make defamation cases easier and more efficient.

Coordinating between States is often difficult in practice, which is why Western Australia stubbornly refused to support the Family Court of Australia, which is why has its own family law system. This independence streak in Western Australia is nothing new.

While Australian federalism offers both opportunities, like Section 107, and obstacles, like Section 120, this is ultimately a political question.

The legislation for treaties, or at least investigating treaties, is in place in both the Northern Territory. However, their continued existence relies on government support. This can be seen in New South Wales’ government deciding to wait until its next election to decide. And this is why Indigenous communities in the Northern Territory look to the upcoming elections for a resolution.

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