Not all states are created equal. Especially when they’re territories.
During colonisation in Australia, following the initial invasion in 1788, land was carved up under British rule and six colonies were established. The six colonies were determined between 1788 and 1859 and were constitutionally connected to Britain, separate to one another. This process consisted of brutal relocation and massacres, the theft of land from the original Aboriginal owners, and the evisceration of Indigenous knowledge, history, and expertise. This land was stolen, and sovereignty was never ceded.
In 1901 the six Colonies formed a Federation of six States – named the Commonwealth of Australia. The Australian Capital Territory was formed in 1909 as the seat of the new government of Australia under the newly formed Australian Constitution. The area chosen (in part to placate the debate between Melbourne vs Sydney as the location, and to sit somewhere in the middle) was transferred from New South Wales to the Commonwealth.
Then, in 1911 after South Australia determined its northern half to be “unprofitable,” it ceded the land to the Commonwealth government and it was subsequently renamed the Northern Territory.
The Northern Territory and the Australian Capital Territory have different rights to the six Australian states. While they operate in a similar way and are granted power to form parliaments and make their own laws, they are restricted in their authority. Territories do not have their own constitutions, and the federal Constitution means the Parliament has the power to make laws for the territories. State laws are enshrined and protected by the Constitution whereas territories are limited by the power granted to them by the Commonwealth.
The Australian Capital Territory is unique in Australia because its Parliament combines the responsibilities of both a local and state government.
Additionally, both territories lack the same number of senators as the states. The NT and ACT only have two senators each, compared to the states’ 12 apiece, adding to a total of 76 nationally.
When the territories were divided, they were not initially given rights to vote in referendums. This was overturned in 1977 under then Prime Minister Malcolm Fraser by a resounding ‘yes’ referendum which enabled all Australian residents with these rights (including Aboriginal and Torres Strait Islander peoples who were counted as a part of the population from the 1967 referendum onwards.)
However, people in the Northern Territory and Australian Capital Territory still have different voting power to the states in referendums. The Australian Constitution can only be changed if it’s agreed to at a referendum. A proposal for constitutional amendment must obtain “a majority of all the electors voting” and a majority of electors “in a majority of the States,” otherwise known as a “double majority.”
They are then discarded when determining if a proposal has won enough support “in a majority of the States.”
Therefore, if you were enrolled to vote in the NT or the ACT your vote weighed less than other Australian voters’ in last year’s Voice to Parliament referendum.
Territories have smaller populations than most states, and some argue that giving them state-like power would provide them too much influence over constitutional reform. However, Tasmania sets a precedent for a small state with the power and influence, and the combined population of the NT and ACT is greater than Tasmania. Additionally, the NT is home to the highest proportion of First Nations people of any jurisdiction, about 30.8%, and others argue this regulation limits their ability to contribute to change. Therefore, the limit on territory rights directly disadvantaged First Nations people in this year’s referendum.
In order for these rights to shift, a proposal could be put forward in a referendum, or the Commonwealth Parliament could confer statehood to the territories. In 1998, the NT government put the question to a referendum. Ultimately, 51.9% of Territorians voted against statehood, narrowly maintaining the status quo. There has been limited recent federal discussion of conferring statehood.
However, Australia has seen paternalistic government intervention in the past, for example under the Northern Territory Emergency response (NTER), colloquially known as the NT Intervention. In 2007, then Prime Minister John Howard declared a ‘National Emergency’ and launched the program following the release of the ‘Ampe Akelyernemane Meke Mekare Report’ (‘Little Children are Sacred Report’).
With no warning, and no consultation, the federal government swifty gained control of many aspects of residents’ lives, implemented coercive measures and created a new set of regulations that impacted existing law. Seventy-three targeted remote communities were affected, in ways that would have been unthinkable in non-Indigenous communities. The government also suspended the Racial Discrimination Act, which is intended to protect people from less favourable treatment because of their country of birth, ethnic origin, or skin colour.
Some measures implemented by the intervention (also known by Aboriginal communities in the NT as the “invasion”) included the deployment of the Australian Defence Force (ADF), banning alcohol, removing the permit system for access to Aboriginal land, abolishing government-funded Community Development Employment Projects (CDEP), subjecting Aboriginal children to teaching in a language they don’t speak for the first four hours at school, quarantining 50% of welfare payments, expecting Aboriginal people to lease property to the government in return for basic services, compulsorily acquiring Aboriginal land and subjecting Aboriginal children to mandatory health checks without consulting their parents. The NT intervention expired in 2022, however 15 years of discriminatory and neocolonial policies have left their mark on the NT.
In the past, the federal government has also overridden laws passed by the NT. For example, when the NT passed the first Australian law to legalise voluntary assisted dying (through medically assisted euthanasia) in 1995, it was then nullified in 1997 by the Commonwealth.
In 2022, the Restoring Territory Rights Bill, with a purpose “to amend the Australian Capital Territory (Self-Government) Act 1988 and the Northern Territory (Self-Government) Act 1978, to remove the provisions currently preventing the territories from passing legislation which would allow for voluntary assisted dying (VAD)” was passed in a watershed moment. There had been nine previous attempts to pass a version of this Bill.
In 2022 the ACT passed a bill to decriminalise small amounts of personal drugs, with the intention to reduce incarceration and focus instead on prevention, health and safety services. The Bill took effect in October 2023 and will penalise possession of small amounts of illicit drugs with fines and rehabilitation treatment rather than jail time or criminal records. The bill underwent rigorous investigation, including an inquiry, and was passed with support from both parties of the Labor-Green coalition.
In September of 2023, Shadow Attorney-General Michaelia Cash – who does not represent the ACT – introduced a private senator’s bill named the ‘Australian Capital Territory Dangerous Drugs Bill 2023’ with the aim to revoke the legislation. She is supported by federal opposition leader Peter Dutton.
Cash argued that the passing of the bill “opened the door to dangerous drugs.” Dutton claims that “Police resources are already scarce. This will be a disaster as drug dealers see Canberra as a new boom market for organised crime.”
ACT Labor senator and former chief minister Katy Gallagher stated the laws were a “matter for the ACT Assembly,” and that “the ACT Assembly is a mature parliament, democratically elected by ACT voters.”
Independent ACT Senator David Pocock reiterated this idea, describing the bill as an “attack” on Territory rights.
This is the third time a federal politician has attempted to override ACT laws. The ACT took over the private Calvary hospital last year, with the intention to build a new public hospital. Liberal members of the senate attempted to force an inquiry into this process, following the departure of midwives from the hospital. Ultimately, it did not pass, and the ACT continues with the new building process.
Regardless of the outcome, the recent increased involvement of federal politicians and government within territory proceedings is causing local concern. Will interference increase, reminiscent of past governments’ involvement, and slow down already voted-upon territory wide changes?
Should territories instead be afforded the standardised liberties of the states, providing citizens across Australia with the same rights?
We acknowledge the Ngunnawal and Ngambri people, who are the Traditional Custodians of the land on which Woroni, Woroni Radio and Woroni TV are created, edited, published, printed and distributed. We pay our respects to Elders past and present. We acknowledge that the name Woroni was taken from the Wadi Wadi Nation without permission, and we are striving to do better for future reconciliation.