SpeechSpeech by Ted Dunstan, LLB, BA, BA (Hons), PhD Candidate at the Statehood - Get the Facts 2005 Public ForumTruncated Paper: The Bitter-sweet Lessons of 1998:
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Here is a rhetorical question: what does statehood really mean? Is it just transforming the subject jurisdiction from Territory status to that of a fully fledged state like the other six? Is it a matter of getting the ‘yes’ vote over the referendum line, with more yes votes than no votes? Is it the creation of a state by any means? The answer of course in the Australian federation is emphatically no! I will briefly illustrate a guiding principle and indicate major consequences of departures from it. To achieve Statehood in its fullest sense, there is a principle which underpins it and gives it absolute legitimacy and primacy. It is called Constitutionalism. It is described by Canadian Professor Edward McWhinney, in his many publications. Tonight, I only demonstrate what it does not mean, rather than propound the positive sense. And this is because of the findings of my research thesis on statehood, in which I interrogated the 1998 bid for lessons it disclosed for a future attempt. I thus looked backwards, to the only substance available, the failed bid processes. In general terms, the meaning of Constitutionalism is both complex and simple. In its simplest form, it means that in establishing a new state in a federation limited by a federal constitution, the way of establishing a sound, universally acceptable state entity is in working-through the many processes required, particularly involving all the people of the proposed jurisdiction, to extract the greatest degree of sovereign authority with which to cloak the new state. A constitution, written or unwritten, is universally accepted as the appropriate repository for the sum of these parts, here expressed as consequential outcomes. Again, in general terms, a paradigm of processes guides and informs statehood. It is timely to recall the steps used in the Northern Territory to accomplish the objective. The preferred, paradigm for creating a state not only includes its three-stage process (made into a four-stage process in the Northern Territory), but, in the federal sense, admission to the Australian federation requires the additional stage of approval through ordinary legislation by the Federal Parliament. It is arguable that this last step is the most difficult and unsure hurdle. Whether it is, or is not a bar, is not yet known. The stated paradigm includes: 1) committee preparation, 2) a constitutional convention, and 3) a referendum. Each step is heavily qualified, but the additional stage ‘created a monster’ here; it was parliament acting not just as an honest broker, but as a controlling player! It could be argued that the Northern Territory electorate actually demonstrated the principle of Constitutionalism by rejecting the 1998 attempt. In the manner of its transition, the journey is every bit as important as the destination. For a while, we nearly had it. But it slipped away! And there is little relevance to the 19th century mode of making colonies into states. It wasn’t easy then: and it certainly isn’t easy now. Even so, the means to be used in contemporary times requires a kaleidoscope of processes! In the case of the Northern Territory, the requirements are high because so many faults and reasons occurred for statehood failing. The media had its say, but in the world of scholarship, in due course, less colourful, but nonetheless interesting conclusions were drawn and published. One view is that "there is little doubt the Aboriginal opposition was the most potent factor in producing the negative result." The Standing Committee conducting the official post-mortem concluded that lack of information and political interference was crucial. I looked further. In doing so, the thesis method which I adopted for measuring and underpinning criteria (through a simple Matrix) a number of reasons for failure were disclosed. In my research, the evidence suggests forty-nine causes, forty-nine reasons why Northern Territory statehood bid failed. And I ascertained six main faults in that lot. This does not mean that that number constitutes the total number of failures, there may have been more or less. It simply illustrates the criteria measurement which the matrix tool indicated combined with analytical assessment; and some were more pronounced than others. The major reasons I see for the 1998 statehood failing include the following descriptives: 1. Education or Propaganda?The absence of an adequately-funded education campaign, instead, substituting a massive last-minute propaganda assault is now self-evident. Not much need be added by me. This present phase should be utterly devoted to it. 2. A deathly silence in the ChamberThe process adopted under Hatton being ostensibly on track, but coming under direct management of Chief Minister Stone, resulting in a dutiful silence of CLP politicians following parliamentary tabling of the Sessional Committee's report. On 26 November, 1996, the Sessional Committee report on a final draft constitution, Foundations for a Common Future was tabled in the Legislative Assembly. The Report recommended that a new Constitution be adopted for the Northern Territory to replace the Northern Territory (Self-Government) Act, to be prepared by Territorians, and set out the text of a draft new State Constitution prepared by the Committee. It included an informed paradigm of democratic method, embodied in the draft constitution. Hatton was far more direct in his interview with the candidate. He indicates that a crucial stage of the process was missed. He specifies the flash-point of disastrous change, which is supported by others (Hickey, Bailey), more for what was not said and done than for any vigorous condemnation of the Sessional Committee's work. A deathly silence in the Chamber sealed the fate of the Committee's main purpose in producing a draft Constitution. Not one question was asked, not one comment made by the government side. This does not necessarily mean at that very time. The tabling could have, should have been met with comment, acceptance or welcoming, but was met with silence. The silence was a denial and rejection of the content. Silence meant ‘no’. That was a definitive time, and the corollaries were manifest and far-reaching! 3. Deconstructing the brighter shadowThe illogical contradiction of separately redrawing a well-drafted Constitution. The time of initial instruction occurred ten years before the statehood bid, and changed by interpretation. This "massive" contradiction in terms is in fact a simple proposition. If a government sub-committee is set-up specifically to draft a constitution, and does so at the level, standard and thoroughness which the Sessional Committee set, as distinguished from collating parts, conducting studies, consultations, and presenting ranges of options, and is then required to present its work to Parliament for approval, which is then intercepted, to go to a separate Convention, it is bound to fail. This is because the next process, another paradigmal entity, the Constitutional Convention, is made-up of a different group, encouraged and in duty-bound to do the same thing as the first entity-the Sessional Committee. The job is made much easier because the first invention contains detail which need not be constructed; but simply de-constructed where attention and pressure is directed. The two entities are thus transmuted to one, and therefore must be in contradiction and conflict, since one is the shadow of the other, ostensibly performing precisely the same task of drafting a constitution again. But shadows of one entity cannot perform different tasks without significant distortion, because they, as delegates, are human, were directed, and must depart from the original, as it is meaningless not to do so; and this is what happened at the Convention. 4. Intercepted Management and Control: moving back the essence of democratic processThe stage-managed Constitutional Convention and delegate selection process resulted in wide distrust of political direction and denied universal election opportunities. This flew in the face, as did other main faults, of constitutionalism, and crossed fundamental principles of statehood creation. It is submitted that there were three main issues which arose during the Convention. The 1st was the manner and selection of the delegates. 2nd were the limitations set by the Chief Minister upon the convention and its virtual ignoring of the Committee's Final Draft Constitution for that of the CLP's version. And the 3rd issue is how the Convention was handled (the word 'manipulated' is not quite apt), and as a result, what the Convention did with the new or amended measures considered, which were reflected mainly in the resolutions put forward. This latter manouvre, engineered by government forces, was like a military diversion. Although it involved as much or more complexity than that, it worked. The irony is that how it worked did not attract controversy as did the first two points, but it was, in the opinion of this candidate, decisive, for the achievement of Stone's tactics and the CLP’s objectives. Paradoxically, it is simply not possible to conclude on a cursory count of known and assumed CLP supporters that in fact the Constitutional Convention was loaded in the favour of the CLP. Twenty-one (21) possible CLP sympathizing delegates of 52 attending is not a majority. And some of those listed may not have supported the CLP position, only emphasising the point. But a majority must have done so, because the CLP position was adopted. Let me paraphrase the import of Stone’s instructions to the Constitutional Convention in relation to the Final Draft Constitution submitted to the Legislative Assembly. The crux of Stone's philosophical objection to it is clear by his declaration that it ‘has no primacy’, and has ‘never been endorsed by the Legislative Assembly’, read, the CLP in government. In hindsight it is difficult not to read the final sentence as: the CLP delegates "must" (instead of 'may'), and indeed, are "instructed" (instead of 'entitled') to consider other models. To the public, Parliament meant 'politicians', and with such hegemony through numbers in the Legislative Assembly, that meant the CLP. And the Constitutional Convention was not theirs- the people's, but the government’s hand-picked creation. 5. Minimalism or spelling-out Rights? A proprietary constitution emerges.Minimalism meant ignoring fears of the indigenous population, entrenching suspicion, for the sake of avoiding litigious challenges. But Labor's tactic of accusing the CLP of 'playing politics' (even though it might be true) needed far more substance to convince the public. And what was the objective? Labor said it wanted statehood. To object so vigorously only served to reinforce the negative aspects of not supporting statehood in the public mind. The land councils, by the same token, had fallen into the same process of 'playing politics' as a protest against the 'CLP' convention, but with the distinction that it had by doing so disadvantaged themselves, whereas the CLP had increased its running of the convention. 6. To be or not to be, that isn’t the question!The single, untimely, presumptuous Referendum question.
The Constitutional Convention had recommended three separate questions for voters, but Shane Stone insisted that they be rolled into one omnibus question. The question presumed that consent had been given by the government, as if their own view was irrelevant, a rubber stamp. Lesson: never underestimate the combined intellect of the people! They always get it right! Simply stated, it is noted that the way that the question read, voters were being forced into a position contemplated by the Northern Territory government, which entity had not expected such an adverse reaction. Because the government saw nothing wrong with asking that question in such a way, it may have presumed that the voters would either skip the wording, or approve it, perhaps not realising that it gave tacit consent to the processes by voting ‘Yes’. If this is the case, the government grossly under-estimated the comprehension dynamics of the electorate as to what the component parts of the question meant. The result of the referendum indicates that it was well-understood by the vast constituency. And for those who did not understand it, they weren’t going to give it their imprimatur anyway, and so, voted ‘No’. Forty nine reasons for voting no The other of 49 reasons listed? I don’t have time here to illustrate them all, but here are a series of snapshots of other ‘choke-points’:
And then there were those people who voted ‘no’ because they simply did not want a state, no means no, and still means no! But to move into this area means retrieval of all the other short-comings, faults, omissions, weaknesses, etc. Different programThe reasons for statehood are differently construed. Professor Ian Thynne talks about territory status being subservient and vulnerable to other federal entities in a number different ways and levels. Dr Neil Conn, said in a key-note address in 1999: ‘I recall reacting much the same way to the words attributed to another MHR, Mr Kevin Andrews, during the 1996 Euthanasia debate when he said: Territories do not have rights, they have responsibilities. Mr Andrews was much closer to the mark than he realized.’ And
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Finally, as to timing, Conn said:
Yes, we should be acting now, quite vigorously, particularly in education, but as to setting a date for statehood, I refer to paragraph one herein. Statehood will occur when the people are ready for it, and the processes are traversed satisfactorily. ConclusionThe outcomes of steps taken, intercepted or distorted underscore the need for Constitutionalism. We can now look-back and see these mistakes and correct them. Learn and translate what should not be done; transform the lessons, indication and protocols into positive moves, and the next bid should not fail. The more exciting and taxing constitution drafting part is however a long way off! There are a bevy of cautions which need too be made, even in mixed metaphor. Beware of ‘cowboys jumping out of the chute, as in a rodeo’, ‘motherhood statements’, and individuals asserting that their views are the only solution. In the coming effort, all people should have their say considered. And hopefully we will not ‘’reinvent the wheel’, as much of the failed bid contains sound, relevant materials and process. Ten years of effort should not be wasted. The past does give us perceptions of future guidance. Let us move forward, but with an openness to all views, even cranky ones! But the first item of business is to convince Territorians that statehood involves them all and to enthuse them, getting the subject-up again on a real agenda, and giving them all facts, for and against- in other words, education! And that in itself is a task at present which has barely touched the surface. Thank you. ENDS |
