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Northern Territory to resume push for Statehood

The Council of Australian Governments (COAG) “supported the Northern Territory Chief Minister’s resolve for the NT to become Australia’s seventh state by 1 July 2018,” which would be the 40th anniversary of self-government in the NT.

Section 121 of the Constitution allows the Commonwealth Parliament to establish new States. It can impose conditions on the new State, including setting different rules for its representation in the Commonwealth Parliament. Given that the NT’s current population is under 250,000, this would likely be necessary. While Tasmania is over-represented compared to its population, the minimum of 5 lower-house seats required by section 24 only applies to Original States.

In 1998, a referendum was held within the Northern Territory. However, it achieved only 48.1% support, largely because the NT’s significant Indigenous population was concerned about the possible impact on their land rights without the protection of the Senate’s review functions. The NT has a unicameral parliament.

Professor Rolf Gerritson of Charles Darwin University said the same issue was likely to be a sticking point in the new campaign: “I don’t think the proposal has a snowball’s chance in hell of getting up. … I expect the land councils would oppose the repatriation of the Land Rights Act. They have in the past. I think that would be a huge stumbling block in negotiations for statehood.” However, his colleague Ken Parish proposes overcoming this obstacle by establishing an Indigenous advisory body that would have the power of veto over amendments to land rights legislation.

This would need to be included in a new constitution for the NT. At present, its legislative, judicial and executive powers are delegated by the Commonwealth under the Northern Territory (Self-Government) Act 1978 (Cth), but this is not truly a Constitution as it can be amended by an ordinary bill in the Commonwealth Parliament — as it was in 1997 to remove the NT’s power over euthanasia laws. The NT will hold a Constitutional Convention system to consult with the public over the development of a new constitution.

COAG was established in 1992 to allow for intergovernmental discussions about issues of national importance. Its members are the Prime Minister, State and Territory Premiers and Chief Ministers and the President of the Australian Local Government Association.

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Charter Review calls for tougher enforcement of rights

The Victorian Attorney-General, Martin Pakula, has tabled in parliament the report of the 2015 Review of the Charter of Human Rights. The review was conducted by Michael Brett Young, and took into account over 100 public submissions from individuals and community groups.

The most significant recommendations relate to enforcement of the Charter. Brett Young says the current Charter is “flawed” because it “does not include an ability to enforce the standards that it sets”. He notes: “Providing for human rights without corresponding remedies sends mixed messages to the public sector and to the community about the importance of those rights.”

One proposal is to create a stand-alone cause of action for breaches of the Charter. At the moment, section 39 allows people to raise a breach of the Charter only as part of a separate legal proceeding. People who can’t “piggy-back” their human rights case on top of a separate claim are left out. The Review recommends giving legal standing to “any human being who claims a public authority has acted, or is proposing to act, incompatibly with their human rights.”

The Review also recommends expanding the remedies that VCAT and the courts can provide for breaches of the Charter. It recommends they “should have power to grant any relief or remedy that [they] considers[] just and appropriate, excluding the power to award damages”. The focus should be on practical remedies, such as injunctions, that would improve compliance with Charter rights.

However, the Review also recommended: “Making damages a remedy under the Charter should be considered only as an incremental step once the direct cause of action is established and there is experience of it in operation. In Chapter 8, I recommend a further review of the Charter. That review should consider the inclusion of damages as a remedy.”

The long report includes a total of 52 recommendations, including strengthening the parliamentary review of bills and making the process more transparent; allowing the Minister to revoke a local council by-law that is incompatible with human rights; and ensuring that allegations of serious human rights breaches by police can be independently investigated.

It also specifically recommends the inclusion of a new Charter right: “that every person born in Victoria has the right to a name and to be registered as soon as practicable after birth.” This was in response to a campaign by the Castan Centre for Human Rights to improve the rate of birth registration in Indigenous communities

The Victorian Government has not yet responded to the recommendations.

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VLA launches Independent Mental Health Advocacy

Victoria Legal Aid has launched a new service called Independent Mental Health Advocacy (IMHA). The new body is funded by the Department of Health and Human Services, and will provide assistance to people in negotiating the mental health system.

The Mental Health Act 2014 (Vic) was passed last year, and introduced a human rights-based approach to mental health services in Victoria. One major reform was the establishment of the Mental Health Tribunal, which oversees the assessment of people’s mental health and make compulsory treatment orders where necessary. Its decisions are reviewable by VCAT’s Human Rights List.

The new IMHA service will help people who are are subject to a compulsory order, who might be subject to one in future, or who have recently been discharged. It does not provide medical or legal advice, but helps people understand their rights and assists them in communicating their views to medical practitioners and agencies.

Where specialist legal advice or representation is required, IMHA will refer people to appropriate services, including Victoria Legal Aid.

 

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Abbott replaced by Prime Minister Turnbull

Malcolm Turnbull has been sworn in as Prime Minister, after defeating Tony Abbott in a ballot for the leadership of the Liberal Party.

Australia has now had six prime ministers in the last eight years. The Coalition campaigned on a platform of stability in the wake of the Rudd-Gillard-Rudd years, telling voters “If you vote for the Labor party in 2013 who knows who you will end up with”, and promising stability.

However, Abbott’s leadership of the Liberal Party came under pressure due to his continued poor results in opinion polls. He survived a challenge in February after he asked for six months to prove he could improve the Coalition’s popularity, declaring that “It’s the people that hire, and frankly it should be the people that fire.”

However, the polls did not turn around, and after being informed that he was losing support, Abbott called a leadership spill. After a ballot in which he lost by 54-44, he resigned by sending a fax to the Governor-General, recommending that Malcolm Turnbull be sworn in.

The new Prime Minister promised to return to “thoroughly traditional cabinet government”, characterised by greater consultation and ministerial independence from the Prime Minister’s office.

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Government considering marriage referendum

With separate private members’ bills introduced to parliament by the Greens, the Liberal Democratic Party, the Labor Party, and most recently a multi-party group,  the Coalition Government has come under pressure to allow its members a conscience vote on the issue.

After an extensive debate in caucus, the Coalition decided defer a decision on a conscience vote until after the next election. While the Coalition allows its backbench MPs to vote against party policy, the decision locks all Ministers in to opposing the bill.

During the meeting, Abbott told his colleagues he thought a referendum to settle the issue was “extraordinarily attractive“. There is speculation that his position is motivated by a belief that a “no” vote would make the reform difficult to justify, and referendums are historically unlikely to pass without strong bipartisan support.

This new position reflects a sudden change of mind on the part of the Prime Minister. In May, following Ireland’s referendum on the issue, Abbott said, “Referendums are held in this country where there’s a proposal to change the constitution. I don’t think anyone’s suggesting that the constitution needs to be changed in this respect. Under the constitution, questions of marriage are the preserve of the Commonwealth parliament.”

That view reflected the precedent established by the Same-Sex Marriage Case (2013), in which the High Court unanimously held: “the federal Parliament has legislative power to provide for marriage between persons of the same sex”.

Other Coalition members are pushing for a plebiscite, which is a non-binding national vote on an issue. In the past, plebiscites have been held on military conscription and the national anthem. According to the Australian Electoral Commission, a plebiscite held at the same time as the next election would cost $44 million to administer, and a stand-alone plebiscite would cost $158 million.