Bills Digest No. 136 2002-03
Australian Capital
TerritoryLegislation Amendment Bill
2002
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Australian Capital
Territory Legislation Amendment Bill
2002
Date
Introduced: 28 August
2002
House:
House of Representatives
Portfolio:
Transport and Regional
Services
Commencement:
On Royal Assent
Note: The Bill was passed by
Parliament on 6 February
2003 and received Royal Assent
on 24 February
2003 (Act No. 1 of
2003).
This Bill
amends the Australian Capital Territory
(Self-Government) Act 1988 (the Self-Government Act), and
the Australian Capital Territory (Planning and Land
Management) Act 1988 (the PALM Act), for mostly minor
technical purposes, such as deleting redundant transitional
provisions.
This Bill is the result of the need for
Commonwealth legislation to reflect the evolving nature of
self-government in the Australian Capital Territory (ACT). This
need is reflected in three areas:
the existence of references in Commonwealth
laws to transitional administrative arrangements that are no longer
in existence
the divergence of Commonwealth and ACT laws in
relation to ACT elections, which emerged as the ACT developed its
own views and laws on how ACT elections would best be run, and
the desirability of fine tuning clauses in
which problems were found to exist as the Commonwealth's laws
relating to ACT self-government were first drafted.
The Commonwealth's Self-Government Act
contains a range of transitional provisions that are no longer
relevant. It refers, for example, to the positions of 'Head of
Administration' and 'Associate Head of Administration', which
ceased to exist in 1994. It also provides for the qualification of
candidates in ACT elections, the filling of casual vacancies, and
the regulation of election funding, until the ACT Assembly
legislates on these matters. The ACT did so in its Electoral
Amendment Act 1994.
In its report on the 1995 ACT Assembly
election, the ACT Electoral Commission suggested that the month in
which elections were held might be moved from February to
October.(1) A Bill to implement this change was
introduced in the ACT Assembly in 1996 by one of the independents,
Michael Moore.(2) The Bill originally contained two
provisions, one to move the date of elections, and another to
introduce four-year terms. The latter proposal was not, however,
derived from the Electoral Commissioner's report.
There was considerable debate about the Bill,
primarily in relation to the four-year term provision. This debate
appeared to be at least in part because the minority liberal
government could not decide whether to support the proposals. The
Bill was eventually passed containing just the provision moving the
date at which elections are normally held to
October.(3)
One effect of the change in the ACT electoral
laws is that it may make them inconsistent with the Self-Government
Act. Section 28 of that Act provides that an ACT enactment is of no
effect to the extent that it is inconsistent with a law in force in
the Territory, which would include the Self-Government Act. The
move to an October election date may result in such an
inconsistency in relation to the timing of an election in the event
that the Assembly is dissolved by the Commonwealth's Minister for
Territories following an Assembly motion of no confidence in the
ACT Chief Minister (what is termed an extraordinary election). This
provision, currently in section 48 of the Self-Government Act, is
intended to prevent two general elections being held within six
months of each other if the Commonwealth Minister has to call an
election under section 48 within six months of the normal general
election date. The subsection which prevents this reads:
(4) An election shall not be held under subsection
(2) if the election would be required to be held on any day after
the third Saturday in August in a pre-election year and before the
third Saturday in February in the next calendar year.
Unfortunately, as can be seen, this is
achieved by having subsection 48(4) refer to particular months by
name, which leads to the potential inconsistency with the
Self-Government Act.
In his second reading speech, the Minister
remarked that
the provisions contained in subsection 48(4) of
the self-government act are not only outdated but also redundant
because of more recent ACT legislation. The subsection is therefore
repealed.(4)
In fact, repeal is necessary because the
federal law would not be redundant in a legal sense. If it
is left unchanged, it could cause the ACT to be without an
effective government for over a year, should subsection 48(4) ever
be invoked. This is because Commonwealth law prevails over
Territory law. Currently, Territory law attempts to achieve the
effect of the Commonwealth's subsection 48(4) through subsection
100(3) of the ACT Electoral Act. This reads:
(3) Where an extraordinary general
election(5) has been held in the 6 months before the day
on which an election in accordance with subsection (1) or (2)
would, but for this subsection, have been held-
(a) the election shall not be held; and
(b) this section applies in relation to subsequent
ordinary elections as if the election had been held.
This, however, will conflict with the effect
of the Commonwealth's subsection 48(4). To clarify this, consider
the scenario that would develop under each jurisdiction's law, if a
Chief Minister were to be subject to a motion of no confidence (and
a replacement not agreed upon) in July, fifteen months before a
scheduled ordinary general election in October of the following
year.
The Territory regime envisages that, if the
Commonwealth Minister has to call an extraordinary election under
section 48 in this scenario, that election will take place between
66 and 120 days after the Assembly passed the motion of no
confidence in the Chief Minister. Because such an election would be
late in the life of the Assembly, the intention of subsection
100(3) of the Territory's electoral law is to allow that
extraordinary election to stand in place of the next scheduled
ordinary election, so the next general election would take place
around three and a half years later. Thus the scenario mentioned
above, if the Territory's law were to operate unimpeded, would be
effective and operate as intended.
The Territory's law, however, is not free to
operate unimpeded. The Commonwealth regime envisages that, whereas
the Commonwealth Minister would normally call an extraordinary
election under section 48, in this scenario the Minister would not
do so, because to call such an election would violate subsection
48(4) of the Self-Government Act. This had been drafted when
ordinary elections were held in February. Now that they have been
moved back to October, however, in the scenario above the Territory
would potentially be governed for over a year by an Assembly that
could not agree upon a Chief Minister.
This problem could potentially be by-passed,
by virtue of section 16 of the Self-Government Act, which
states:
(1) If, in the opinion of the Governor-General,
the Assembly:
(a) is incapable of effectively performing its
functions; or
(b) is conducting its affairs in a grossly
improper manner;
the Governor-General may dissolve the
Assembly.
The Governor-General would be acting upon the
advice of Federal Executive Council. This section could be used to
avoid the ACT being paralysed by an Assembly that could not select
a Chief Minister. Politically, however, this might be regarded as
less than ideal, because the exercise of this power would highlight
how the fate of the Assembly lies ultimately with Federal Cabinet,
rather than with ACT self-governing institutions.
Far from being merely redundant, therefore,
subsection 48(4) of the Self-Government Act needs to be repealed
precisely because it could still have effect. It needs to be
repealed so that the ACT Electoral Act can operate unimpeded with
regard to the implementation of extraordinary elections.
The PALM Act establishes rules for the
operation of the National Capital Authority (NCA). It requires the
full-time member of the NCA to be present for a meeting to have a
quorum, however the PALM Act also requires that any person with a
pecuniary interest in a matter being considered by the NCA absent
themselves from deliberations on the matter. Taken together, these
provisions have the potential to prevent the NCA dealing with any
matter in which the full-time member of the NCA has a pecuniary
interest. This Bill addresses this issue, as well as some other
drafting problems.
Schedule 1 item 1 removes a
defunct reference in section 16(9) of the Self-Government Act, that
currently prevents the Head of Administration (a position that no
longer exists) from administering the executive in the event of the
dissolution of the Assembly by the Governor-General. It replaces it
with a provision indicating that the Chief Executive, or
equivalent, of the Chief Minister's Department, cannot undertake
that role.
Schedule 1 item 2 clarifies
the language of the provisions of the Self-Government Act that
outline the circumstances under which the Chief Minister and other
Ministers vacate office. The current provision is difficult to read
because it attempts to cover both Ministers and the Chief
Minister.
Schedule 1 items 3 and 4
repeal provisions of the Self-Government Act relating to elections
held pursuant to the calling of an election by the Commonwealth
Minister if the ACT Assembly has passed a motion of no-confidence
in the Chief Minister, but has been unable to choose a new Chief
Minister. These provisions are potentially inconsistent with the
ACT's electoral laws since they were changed in 1997.
Schedule 2 item 2 modifies
the quorum rules for the NCA in the PALM Act to ensure that a
quorum can be formed in the event that the full-time member of the
NCA cannot be present because they have a pecuniary interest in any
item under consideration by the meeting.
This Bill in
broad terms recognises the progressive devolution of law making in
some areas from the Commonwealth to the ACT. This
Bill would also seem desirable to avoid a number
of potential difficulties from emerging from the Commonwealth's
legislation for the ACT. The remaining question, raised during
debate on the Bill, is whether there are
other areas in which devolution of authority should be taking
place, such as removing the provision of the Self-Government Act
that prevents the ACT from determining the size of its own
Legislative Assembly (section 8(3)).(6)
- Mr Moore, Legislative Assembly
Debates, 4 September 1996, p. 3006; Mr Whitecross,
Legislative Assembly Debates, 4 December 1996, p.
4412.
- Mr Moore, Legislative Assembly
Debates, 4 September 1996, p. 3006.
- Legislative Assembly Debates, 27
August 1997, p. 2509.
- Mr Tuckey, House of Representatives
Debates, 28 August 2002, p. 5910.
- 'Extraordinary election' is defined in
section 101 of the ACT's Electoral Act, and includes an election
required under section 48 of the Self-Government Act.
- Senator Stott-Despoja, Senate
Debates, 6 February 2003, p. 8729.
Ian Holland
10 April 2003
Bills Digest Service
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ISSN 1328-8091
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