16 Bennett Street
Ground Floor
DARWIN NT 0800
GPO Box 2096
DARWIN NT 0801
T 08 8999 5413
E admin@treatynt.com.au
Northern Territory Treaty Commission in Response to the Interim Report to the
Australian Government on the Indigenous Voice Co-Design Process
1. The Northern Territory Treaty Commission (Treaty Commission) congratulates the Co-Chairs
and all others involved in the production of the comprehensive Indigenous Voice Co-Design
Process Interim Report and welcomes the opportunity to make a submission in response.
The Treaty Commission’s response will be limited to matters it considers relevant to its role
of recommending to the Northern Territory Government a framework for future Treaty
negotiations in the NT.
Overview
1.1. The Treaty Commission will release its Final Report to the Northern Territory Government
in March 2022, advising on the best approach to realise the aspirations of First Nations
peoples under Treaties. It is likely that a key recommendation will be to strengthen local and
regional governance structures, beginning with reform to the Local Government Act 2008, as
a staging point on the pathway to First Nations self-government under Treaties or Treaty
settlements.
1.2. The Treaty Commission’s focus on local and regional governance creates the potential for
overlap with the local and regional voice arrangements in the longer term. The Treaty
Commission is keen to ensure that the development of local and regional voice arrangements
is complimentary to, and does not create duplication with, developments of First Nations
local and regional governance under a Treaty framework. One key to this will be ensuring
flexibility in how local and regional Voices can develop and evolve over time. Another will be
coordinating the roles of decision-making and service delivery and ensuring that each
mechanism, whenever established, adds value to the other and overall strengthens the
capacity for First Nations peoples to make decisions about matters affecting their lives.
1.3. Given the absolute discretion of the Commonwealth to override Northern Territory laws,
pursuant to section 122 of the Constitution, the Treaty Commission firmly believes that
section 122 should trigger an obligation on the Commonwealth Parliament and Australian
Government to consult and engage with the Voice. These considerations are important to
the context of the Northern Territory and are set out in more detail below.
2. SECTION 122 OF THE CONSTITUTION
2.1. Unlike its state counterparts, the Northern Territory has only subordinate law-making power.
It has limited powers of self-government established pursuant to the Northern Territory (Self
Government) Act 1978 (Cth). That law was made by the Commonwealth pursuant to section
122 of the Constitution, which confers upon the Commonwealth ‘power to make laws for
the government of any Territory’.1 It can exercise this power to override Northern Territory
laws and to impose its own legislative agenda upon the Territory. It can do this at its discretion
and without notice. The historical relationship between the Northern Territory and the
Commonwealth has been significantly shaped by the exercise of this power, and in many
cases, it has been used to the significant detriment of First Nations peoples in the NT.
2.2. The Commonwealth relied on the section 122 power to establish the Northern Territory
National Emergency Response Act (2007) (the Intervention) and the Stronger Futures in the
Northern Territory (Consequential and Transition Provisions) Act 2012. It also used the section
122 power to override the Northern Territory’s Rights of the Terminally Ill Act 1995 (NT) by
amending the Self-Government Act. By virtue of its status as a Territory, the NT has no
constitutional power to limit or prevent the imposition of Commonwealth laws, or the
override of Territory laws by the Commonwealth. In the context of treaty-making, this is a
significant consideration.
2.3. The Treaty Commission views it as fundamental that any laws passed by the Northern
Territory Parliament in support of a treaty in the NT – including laws empowering First
Nations self-determination through expanded local government or in relation to First Nations
self-government – are legally entrenched to their fullest capacity. It is therefore important
to the development of Treaties in the NT that the obligatory Voice consultation mechanism
currently being considered is triggered by any laws relying on section 122 of the Constitution.
2.4. The Treaty Commission is optimistic that the Commonwealth will bring important support to
law reform in relation to treaty. History in the Territory has, however, highlighted a tendency
by the Commonwealth to use its section 122 power to impose laws on the NT that adversely
affect First Nations peoples. Ensuring the Voice is engaged on laws relating to section 122
would create an important check on the currently unlimited power of the Commonwealth to
impose laws on the Northern Territory and would ensure that the interests of First Nations
peoples in the NT are considered before laws relying on section 122 take legal effect.
1Section 122 of the Constitution states that, “The Parliament may make laws for the government of any territory
surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under
the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth ….”.
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2.5. The Treaty Commission strongly recommends that, in addition to proposed laws relying on
sub-section 51(xxvi) of the Constitution, proposed laws relying on section 122 of the
Constitution must also be considered laws that trigger an obligation on the Parliament and
the Australian Government to consult and engage with the Voice.
3. LOCAL AND REGIONAL GOVERNANCE
3.1. The Voice Co-design Interim Report makes the point that the purpose of the local and
regional voice is to ‘enable Aboriginal and Torres Strait Islander Peoples in every community
to have a greater say in public policy, programs and service delivery affecting their lives
through shared decision-making in partnership with governments’.2 It also sets out that the
local and regional voice will be broken up into 4-6 regions across the NT.3 In relation to
governance structures set out in the Local and Regional Voice Principles, the report highlights
that ‘each region will be able to design or enhance their own governance arrangements to fit
local cultures, needs and aspirations …’.4 The report also makes clear that this structure will
follow a right to self-determination approach, where governments shift to an enabling role,
so that Aboriginal and Torres Strait Islander Peoples have ‘greater control and voice in their
own affairs’.5
3.2. These goals align well with the Treaty Commission’s commitment to ensure that local and
regional governance structures, for example local government, are strengthened to empower
First Nations peoples across the NT with meaningful capacity to make decisions about
matters affecting their lives. The detail of the local and regional voice is not yet clear, and
similarly, the advice of the Treaty Commission in relation to local and regional governance
has not yet been delivered to government. Despite this, it is important to the strength of the
Treaty process in the NT that the design, function and operation of the local and regional
voice, and local and regional governance changes in the context of treaty, are complimentary.
3.3. It is important that potential new local and regional governance structures do not create
duplication or confusion and that they work together to strengthen the overall capacity of
First Nations peoples to make decisions about matters affecting their lives (see below
observation). It is important therefore to ensure that there is communication on the progress
2 Commonwealth of Australia, National Indigenous Australians Agency, Indigenous Voice Co-Design Process
Interim Report to the Australian Government 70.
3 Ibid, 90.
4 Ibid, 84.
5 Ibid, 75.
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and scope of the development of both the local and regional voice, as well as local and
regional governance changes proposed in relation to treaty in the NT.
Observation from community consultations
3.4. The Treaty Commission has been conducting Phase 2 consultations in remote NT
communities since October 2020. So far it has visited nearly 30 locations. Consultations have
highlighted that the Aboriginal Affairs agenda is very “busy” and is cluttered with numerous,
at times potentially overlapping, initiatives. This not only leads to “consultation fatigue”, but
also creates confusion and the potential for gaps and a lack of accountability. In the NT,
examples of initiatives creating potential overlap include:
Treaty;
The Voice;
Closing the Gap Refresh;
Local Decision Making;
Empowered Communities;
Uluru Statement from the Heart;
COAG Pilot projects;
Aboriginal Justice Agreements;
Local indicatives such as the Barkly Regional Deal; and
NT Aboriginal Affairs Strategy.
3.5. Local Government initiatives such as the strengthening of Local Authorities add yet another
layer.
3.6. It is vital that government policies are congruent, better aligned and genuinely community
informed. Obligations set out in the United Nations Declaration on the Rights of Indigenous
Peoples, and particularly Articles 19, relating to “free, prior and informed consent”, and
Articles 3 -5, in relation to “self-determination”, highlight the importance of this point. One
way of addressing these concerns would be to conduct a joint mapping exercise across the
three tiers of Government to identify all First Nations initiatives and programs in each region.
Such a mapping exercise could highlight linkage points, overlaps, and gaps and provide
information for relevant parties to work with communities to determine best responses to
identified issues.
3.7. The Treaty Commission believes that ongoing communication and coordination is vital to
ensure there is no overlap between local and regional voices and local and regional
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governance structures established in the Treaty process. It is important that both
approaches coordinate to strengthen and improve the overall capacity of First Nations
peoples to make decisions about matters affecting their lives.
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