Constitutionally speaking, the Northern Territory is a mere creature of the Commonwealth. Canberra can and does override its laws on a case by case basis. If the federal parliament takes the view that this is required in the present case, it is perfectly entitled to act.

The States are quite different: they are coordinate constitutional entities, so that the Commonwealth can interfere in their laws only when it has specific authority under the Constitution. In the case of s-xual abuse, the Commonwealth does not have this authority, as the criminal law lies within the jurisdiction of the States.

It might be possible, in theory, for the Commonwealth to use its races power to legislate specifically in respect of s-xual abuse in indigenous communities. There would, however, be a strong argument that such legislation was obnoxious, on the basis that had discriminatory overtones and implications. In any event, it would be strongly arguable that the State criminal and social regimes still were best placed to deal with local communities.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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