LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY _________________________________________________________________________________ Standing Committee on Legal and Constitutional Affairs Annual Report 1 July 2007 — 30 June 2008 _________________________________________________________________________________ Report deemed as a Tabled Paper in the Legislative Assembly, on 27 November 2008 LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY Standing Committee on Legal and Constitutional Affairs Annual Report 1 July 2007 — 30 June 2008 Members of the Committee Membership of the Committee as at 30 June 2008 Ms Malarndirri McCarthy, MLA, Member for Arnhem - Chair Mrs Loraine Braham, MLA, Member for Braitling Mr James Burke, MLA, Member for Brennan Mr Karl Hampton, MLA, Member for Stuart (from 12 February 2008) Mrs Fay Miller, MLA, Member for Katherine Mr Terry Mills, MLA, Member for Blain Previous Membership The Hon Len Kiely, MLA, Member for Sanderson (to 12 February 2008) Committee Staff Ms Pat Hancock - Secretary Ms Jan Whitehead - Research Officer Mrs Kellie Trout - Administration Officer Ms Kim Cowcher - Committee Support Assistant CONTENTS CHAIR'S STATEMENT 1 1. INTRODUCTION 3 ESTABLISHMENT OF COMMITTEE 3 ADDITIONAL TERMS OF REFERENCE 3 STATEHOOD STEERING COMMITTEE TERMS OF REFERENCE 4 MEMBERSHIP OF THE COMMITTEE 4 FUNCTIONS OF THE COMMITTEE 5 SUB -COMMITTEES 5 HEARINGS AND MEETINGS 6 2. COMMITTEE PROGRAM 6 GENERAL OVERVIEW 6 REFERENCE ON A GRANT OF STATEHOOD 6 CUSTOMARY LAW REFERENCE 7 MEETINGS OF THE COMMITTEE 7 ADMINISTRATION AND STAFFING 7 UNIT OBJECTIVE 8 EMPLOYEE AND ADMINISTRATIVE EXPENDITURE 2007- 08 8 APPENDICES 11 APPENDIX 1 13 TERMS OF REFERENCE - NORTHERN TERRITORY STATEHOOD STEERING COMMITTEE 13 APPENDIX 2 31 SUMMARY OF DELIBERATIVE MEETINGS 2007- 08 31 CHAIR'S STATEMENT In accordance with Standing Order 21B of the Legislative Assembly's Standing Orders, I have pleasure in reporting to the Assembly the activities of the Standing Committee on Legal and Constitutional Affairs for the financial year ended 30 June 2008. During the year the Committee has focussed on the ongoing work of the Statehood Steering Committee as well as an investigation into the background to and implications of the recognition of Aboriginal Customary Law as a source of law in the Northern Territory. An inquiry into this had been commenced by an earlier Standing Committee but had lapsed upon prorogation. On 30 January 2007 the then Attorney-General, Hon Syd Stirling, MLA, wrote to the Committee requesting that it again take on board this issue. As few of the Members were part of the Standing Committee during the earlier inquiry, the initial process was to look into the background and evidence previously taken. There was also valuable work undertaken on Customary Law by the Sessional Committee on Constitutional Development which operated from 1989 to 1997, culminating in a discussion paper on recognition of Customary Law which was released in 1992. The issue was debated at length during the 1998 Constitutional Convention. Of relevance also was the discussions at the 1998 Kalkaringi and Bachelor Indigenous Constitutional Conventions which developed, then subsquently endorsed, the Kalkaringi Statement. In 2006 the Law Reform Commission of Western Australia released a report of its inquiry into customary law and this also is relevant to this Committee’s inquiry. In short the Committee considered that it was essential, as a first step, to look at all the background material. It is intended that the collation of all these papers and evidence received will be tabled in the Legislative Assembly next year. In January the Executive Officer to the Statehood Steering Committee resigned, followed soon after by the Co-Chair of the body, which meant that I needed to focus my efforts, and those of the other Standing Committee appointees to the Steering Committee, to ensure the valuable work of that body did not stall. I am most appreciative of my fellow Members to the Steering Committee, Mr Terry Mills, MLA, Mrs Loraine Braham, MLA (until 18 February) and Mr Karl Hampton (from 18 February), as well as the other Standing Committee Members, Mr James Burke, MLA, Mr Len Kiely, MLA and Mrs Fay Miller, MLA for their assistance in this matter. As a result we were able to undertake the necessary strategic planning to ensure the Steering Committee was well placed to proceed with the next phase of its work once the new Co-Chair and staffing were in place. Finally I extend my thanks to all Members and staff of the Standing Committee who have worked so well as a team during the past twelve months. I appreciate your support. Malarndirri McCarthy Chair 1 2 1. INTRODUCTION Establishment of Committee On 20 August 1998 the Legislative Assembly of the Northern Territory, by resolution, established the Standing Committee of Legal and Constitutional Affairs under Standing Order 21B to inquire, report and make recommendations upon such constitutional and legal matters as may be referred to it by the Attorney-General; or by resolution of the Assembly. Following the general election held in August 2001, the Legislative Assembly reconstituted the Standing Committee on 16 October 2001 and again on 29 June 2005 at the commencement of the 10 th Assembly. Additional Terms of Reference On 29 June 2005 the Legislative Assembly resolved to enhance the Standing Committee's role and function in providing the following additional Terms of Reference: The Standing Committee on Legal and Constitutional Affairs shall: 1. Inquire, consider, make recommendations and report to the Assembly from time to time on: a) any matter concerned with legal or constitutional issues, including law reform, parliamentary reform, administrative law, legislative review and intergovernmental relations; b) the legal or constitutional relationship between the Northern Territory and Commonwealth; c) any proposed changes to that legal or constitutional relationship, including the admission of the Northern Territory as a new state of the Commonwealth; or d) any proposed changes to the Commonwealth Constitution that may affect the Northern Territory and/or its residents. 2. With the approval of the Attorney-General, any other matter concerning the relationship between the Northern Territory and the Commonwealth and/or the states in the Australian Federation. 3. Meets with any other state or Commonwealth parliamentary committees to inquire into matters of mutual concern; and 4. The Northern Territory Statehood Steering Committee continues in existence with the same membership and terms of reference adopted by the 9th Assembly on 17 August 2004 and as amended on 24 March 2005. 5. Resolutions or business transacted by the previous Legal and Constitutional Affairs Committee are taken to be the resolutions of this committee unless otherwise amended; and 6. The Committee shall report to the Assembly as soon as possible after 30 June each year on its activities during the preceding financial year. 3 Statehood Steering Committee Terms of Reference As well as the responsibilities and authorities given to the Standing Committee by the above Terms of Reference, the establishment of the Statehood Steering Committee on 17 August 2004 provided the Standing Committee with additional responsibilities in relation to the work of that body. The role of the Statehood Steering Committee is that of an advisory body to the Standing Committee, while undertaking the additional role of “promoting the awareness of Statehood and constitutional development to the Northern Territory Community” 1. A copy of the Terms of Reference of the Steering Committee is at Appendix 1. Membership of the Committee Committee Membership as at 30 June 2008 Ms Malarndirri McCarthy, MLA - Chair Australian Labor Party Member for Arnhem First elected: 18 June 2005 Parliamentary Position: Deputy Chairman of Committees Committee Membership: Appointed 16 August 2005 Appointed Chairperson - 10 October 2006 Mrs Loraine Braham, MLA Independent Member for Braitling First Elected: 4 June 1994 Parliamentary Position: --- Committee Membership: Appointed 29 June 2005 Mr James Burke, MLA Australian Labor Party Member for Brennan First elected: 18 June 2005 Parliamentary Position: Deputy Chairman of Committees Committee Membership: Appointed 16 August 2005 Mr Karl Hampton, MLA Australian Labor Party Member for Stuart First Elected: 23 September 2006 Parliamentary Position: --- Committee Membership: Appointed 18 February 2008 1 Clause 3(d) of the Statehood Steering Committee’s Terms of Reference 4 Mrs Fay Miller, MLA Country Liberal Party Member for Katherine First elected: 4 October 2003 Parliamentary Position: Deputy Leader of th Opposition Committee Membership: Appointed 29 June 2005 Mr Terry K Mills, MLA Country Liberal Party Member for Blain First Elected: 31 July 1999 Parliamentary Position: Leader of the Opposition Committee Membership: Appointed 10 August 1999 Functions of the Committee The Committee derives its authority from the Northern Territory (Self Government) Act 1978 (Cth), the Legislative Assembly (Powers and Privileges) Act and the Standing Orders of the Legislative Assembly . Under its Terms of Reference the Committee has power to appoint sub-committees and to refer to any such sub-committee any matter that it is empowered to examine. Three members constitute a quorum of the Committee and three members constitute a quorum of a sub-committee. The Committee or any sub-committee also has the power to: (a) send for persons, papers and records; (b) to adjourn from place