CHAPTER 3
KEY ISSUES
3.1
Chapter 3 discusses the key issues raised in submissions and evidence
during the committee's inquiry. Many of the substantive submissions received by
the committee expressed strong support for the Bill and its objectives.
Improved democratic rights for territory citizens
3.2
Most submitters and witnesses who favoured the Bill emphasised the
democratic right of territory citizens to be governed by their elected
representatives, without a federal executive override.
General support for the Bill and
its objectives
3.3
The Law Council of Australia (Law Council) noted its fundamental
opposition 'to unwarranted and inappropriate interference with the legislative
powers of Australia's self-governing Territories'.[1]
In the Law Council's view, the Commonwealth's power to override laws in the
territories significantly undermines their democratic legitimacy:
Territorians elect representatives to their local assemblies
in the expectation that those representatives will make laws for the peace,
order and good governance of their communities within the parameters of the law
making powers afforded them by the self-government Acts. It is an affront to
the democratic process in which Territorians participate if legislation
lawfully passed by their elected representatives is rendered invalid by the
operation of Commonwealth laws, which are not of general application, but which
are exclusively targeted at the Territories for the express purpose of
interfering in their legislative processes.
While the current Bill does not completely remove the power
of the Commonwealth to override Territory laws, it enhances the democratic
quality of this process by requiring that Parliament consider and take
responsibility for the decision to override, rather than the Executive.[2]
3.4
Professor Cheryl Saunders AO from Melbourne Law School supported the
Bill 'as an overdue change to correct what has become an anachronism in the
Australian system of government'.[3]
Professor Saunders argued that the Bill should apply 'at least' to the ACT and
the NT:
These Territories are self-governing polities with democratic
institutions responsible to their electors. Their systems of government are
broadly equivalent to those of the States and the Commonwealth. Elsewhere in
Australia, we entrust such institutions with the power to make decisions that
reflect the views of their respective electorates, subject to the overall
constitutional framework. So it should be in relation to the Territories. In
this regard it should be noted that for most other purposes, including
intergovernmental arrangements, the Territories are treated under Commonwealth
legislation and in practice as being akin to the States.[4]
3.5
Associate Professor Tom Faunce from the Australian National University
also advocated passage of the Bill:
[R]epealing section 35 of the ACT Self-Government Act is a
measure that can and should be taken now. What the citizens of the ACT or NT
vote about should be no concern of members of federal Parliament if it raises
no issues that would create constitutional objections should the same
legislation have been passed by the States. The geographical accident of being
resident in a Territory should not be a ground for discrimination in terms of
basic rights under the Australian Constitution.[5]
3.6
Professor George Williams submitted that, '[a]s a matter of good
governance, the Commonwealth should not remove power from a self-governing
jurisdiction to make laws on a topic'. Specifically, he argued:
Removing power is a blunt instrument that prevents the making
of any laws, for good or ill, including those that are clearly in the best
interests of the local community. It also sends a clear signal that the
Commonwealth believes that the Territories are not up the task of enacting
appropriate laws on the subject. This is at odds with the fact that the ACT and
the Northern Territory both have a larger population, and a better functioning
system of self government, than some of the colonies that became [states upon
Federation in 1901].[6]
Australian Capital Territory
3.7
The Chief Minister of the ACT, Mr Jon Stanhope MLA, argued that the Bill
goes to 'a first and basic principle'[7]
for citizens of the ACT:
[W]e, the residents of the Australian Capital Territory,
deserve the same consideration, the same respect and the same capacity to
exercise our democratic rights without threat or prospect of interference as
all other Australians—other than those in the Northern Territory and Norfolk
Island—currently exercise their democratic rights...I and my government, and I
believe the vast majority of the residents of the Australian Capital Territory,
reduce this issue to first and basic principles...[T]he people of the Australian
Capital Territory, a self-governing territory within the Commonwealth of
Australia, are currently not accorded the same democratic rights, the same
respect, the same capacity to govern ourselves, consistent with mandates that
we achieve through the ballot box, as other Australians. It is as simple as
that...We really should be concentrating on a simple, basic principle—I would
have thought a principle close to the hearts of every Australian—something that
this nation stands for above all others: a commitment to democracy, a
determination to fight for democracy and to support it, and to always live by
it. We, the people of the ACT, are not being accorded the same rights to the
same extent and to the same level as other Australians. We believe that is
inappropriate.[8]
3.8
The Castan Centre for Human Rights Law at Monash University also
expressed support for the Bill:
It will enhance democratic rights in the ACT. At present,
legislation emanating from territorial parliaments may be struck down by an
exercise of executive power by the Governor General (acting on the advice of
the responsible Ministers). In other words, the will of the people of the ACT,
as represented by its Parliament, can presently be struck down on the basis
that it does not conform to the will of the federal government of the day.[9]
3.9
The ACT Greens strongly endorsed the Bill's proposals, arguing that
section 35 of the ACT Act 'is fundamentally offensive to representative
democracy', which is 'premised on the basis that citizens have the opportunity
to elect those who make decisions about the way their community is to function
and the laws that govern it'. In addition:
Currently the citizens of the ACT have no ability whatsoever
to respond to a decision of a Commonwealth Minister, elected by electorates
very distinct from their own, when that Minister using section 35 decides to
overrule an enactment of the democratic parliament they do elect. Canberrans
cannot vote against a Minister from Queensland or WA who exercises the power
given to them by Section 35 that applies exclusively to the ACT. This is
perhaps the only case where there is no electoral accountability for action
taken by a Member of Parliament in Australia.[10]
3.10
Mr Michael Moore, a former independent member of the ACT Legislative
Assembly, urged the committee to support the Bill as an important part of the
development of the powers of the territory legislatures:
The Territories have powers that are less than those of the
States and, as such, should be reviewed from time to time to determine why it
is that the Federal Parliament allows reduced democratic rights for
approximately 800,000 Australian citizens.
Many have been critical of decisions that have been made by
the ACT Legislative Assembly since self-government in 1989. However, this is
the nature of democracy. There has also been criticism of many decisions taken
by Federal governments in the same period, not to mention neighbouring New
South Wales. We should have similar rights as other jurisdictions when it comes
to decisions by our locally elected representatives.[11]
Northern Territory
3.11
The Chief Minister for the NT, the Hon Paul Henderson MLA, fervently
endorsed the Bill's proposals as they pertain to the NT:
It is a very basic principle that we are arguing for here.
The 25 members of the Territory parliament, who make laws for the good
governance of the people of the Northern Territory, are elected by Territorians
and they are accountable through fixed-term elections every four years. For the
Commonwealth executive arm of government to have the power, essentially at the
stroke of a pen, to make a recommendation to the Governor-General to disallow a
law in the Territory undermines democracy in the Northern Territory. It says to
Territorians who go to the polls every four years: 'You can't be trusted. Your
big brothers and sisters in the Commonwealth parliament do not trust you to
elect a parliament to make laws for the good governance of the people of the
Northern Territory.' I think that that is insulting to people in the Northern
Territory who elect their members of parliament.[12]
3.12
Further, Mr Henderson argued that section 9 of the NT Act 'provides for
a total lack of transparency and accountability to the people of the NT'
because the federal executive is able to effectively amend or disallow a law
that has been passed by the 'democratically elected' NT Legislative Assembly:
The federal minister that would take a position to cabinet to
amend or disallow a law that has been made through the Territory parliament is
not accountable to the people of the Northern Territory. The cabinet that would
make that recommendation to the Governor-General is not accountable to the
Northern Territory. The ability for the federal executive to understand the
innate intricacies and issues affecting the people of the Northern Territory is
nowhere near to the same level of accountability and scrutiny as there is
through the Territory parliament. So I would argue that the current provision
is certainly lacking in transparency and accountability to the people of the
Northern Territory.[13]
3.13
The Hon Jane Aagaard MLA, Speaker of the Legislative Assembly of the
Northern Territory and Chair of the NT Legislative Assembly Standing Committee
on Legal and Constitutional Affairs, strongly supported the Bill as a 'reform
which improves the democratic capacity of a self governing Australian territory
to participate as a more equal partner within the broader Australian federal
system'. In particular, she argued:
It remains contrary to the principles of democratic
government that the laws made by the responsible Parliament in the Northern
Territory should be overturned without reference to that Parliament.
Section 99 of the Australian Constitution prevents the
Commonwealth discriminating in favour of (or against) one State over another,
resulting in valid Commonwealth laws which apply equally to all.
Section 9 of the Self Government Act deviates from the
underlying principle of s.99 and allows the Commonwealth to single out a
territory for unequal treatment for no reason other than the Commonwealth has
the constitutional power to treat a territory in an inferior manner. If the
Commonwealth Government simply does not like a State law, its power to override
that law is much more constrained.[14]
3.14
Speaking with, and on behalf of, members of the NT Standing Committee on
Legal and Constitutional Affairs at the first public hearing, Mrs Aagaard
emphasised the maturity of the NT Legislative Assembly:
The Northern Territory has demonstrated in its 11 assemblies
and almost 34 years of self-government that it is a mature body politic in the
Australian system of government with a healthy representative democracy working
on behalf of the electors of the Northern Territory. Section 9 of the
self-government act provides that the Governor-General, on the advice of the
Federal Executive Council, may disallow or recommend amendments to a law passed
by the Legislative Assembly of the Northern Territory within six months after
it is made. This power of the Commonwealth may be exercised by the federal
executive in respect of any legislation passed by the Northern Territory
Legislative Assembly, not just legislation relating to matters for which the
Legislative Assembly is expressly precluded from making laws. The repeal of
section 9 would not give the Northern Territory any greater legislative
authority than it presently enjoys. It would, however remove the federal executive
power to disallow valid laws passed by the Legislative Assembly. The federal
parliament's power to override Territory laws would remain intact as it exists
today.[15]
3.15
Mr Marshall Perron, a former NT Chief Minister, observed that self-government has been a substantial success in the Northern
Territory. Mr Perron asserted that the history of the Rights of the
Terminally Ill Act 1995 (NT) demonstrates conclusively that an executive
power to veto territory legislation is unwarranted and unnecessary:
A decision to veto a law passed by the duly elected
representatives of Australians living in the territories is a grave matter. It
should not be done on the whim of a Minister or Prime Minister but duly
considered by both houses of Federal Parliament...There is no ongoing need for a
'big brother' clause that allows a Federal Government minister to veto a law
passed by the Legislative Assembly. If a proposed law is considered so
dangerous or offensive to warrant trampling the decision of a subordinate
democratically elected legislature, it should only be done by Federal
Parliament in full session.[16]
3.16
The NT Chief Minister submitted that the move towards statehood in the
NT is a primary motive for his endorsement of the Bill:
This is all about the parliament of the Northern Territory
and the people of the Northern Territory being accorded a small step along the
way to statehood with the same rights and responsibilities through their
elected parliament as all other people in Australia. I see the [Bill]...as very
important in terms of the journey towards statehood for the Northern Territory.
Any journey is made up of a number of steps, and this legislation is a small
but significant step towards statehood and certainly towards respecting the
rights of Territorians through their elected parliament in the Northern
Territory.[17]
3.17
Mr Henderson noted that the Bill represents 'a step in recognising the
inequities between the way the Commonwealth executive has powers over the
territories that it does not have over the states'. Further:
[T]he removal of that power by the support of this bill I
would see sends a very significant signal by the parliament of Australia that
the territories are moving towards statehood in terms of recognition of that...[T]he
journey towards statehood will be taken through a number of steps and this
would be a step of recognition by the Commonwealth power in regards to the
progression of statehood for the Northern Territory. Where the ACT and Norfolk
Island sit in that debate towards statehood is an issue for their
jurisdictions.[18]
3.18
In a similar vein, Mrs Aagaard expressed the view that the Bill should
be strongly supported as a move towards statehood for the NT:
The proposed amendment to remove section 9 of the Northern
Territory (Self-Government) Act 1978 means this bill, if passed, will be a
significant step towards the recognition of the ability of the Northern
Territory to undertake self-government with less prospect of arbitrary
interference. If the bill is passed it would assist the Territory to promote
more understanding of the long-held aspirations to achieve statehood.[19]
Preference for parliamentary override of territory legislation
3.19
Many submissions and witnesses expressed a clear preference for a
parliamentary override of territory legislation, as opposed to an executive
one.
3.20
The ACT Chief Minister, Mr Jon Stanhope MLA, characterised the executive
disallowance power as 'outdated, unaccountable and subject to partisan
influence', and an 'unreasonable constraint' on democratic rights:
That section 35 empowers the Commonwealth Government, with no
popular mandate, to administratively override the laws of the Territory's
legitimate legislature is a fundamental erosion of Australia's democratic
standards. The disallowance power creates a high degree of uncertainty as to
the status of existing and future enactments of the Legislative Assembly for
the ACT and the scope of the Assembly's law making powers. In effect—and in a
manner unique to the Territories—the provision affords citizens of the ACT no
clear line of ultimate accountability for the laws passed by their elected
representatives. This provides for a lower standard of democracy for the
citizens of the ACT when compared to Australians living in one of the six States.
Such laws as have been duly formulated, debated and passed in
the ACT's parliament by elected representatives should not be subject to the
arbitrary, unilateral veto of federal Ministers elected outside the ACT.[20]
3.21
Similarly, Mr Shane Rattenbury MLA, Speaker of the ACT Legislative
Assembly, contended that section 35 of the ACT Act should
be considered to be as obsolete as sections 59 and 60 of the Constitution,
which enable the Queen to disallow Commonwealth legislation or to have
Commonwealth laws reserved for her assent. He submitted further that section
122 of the Constitution properly provides for the parliament rather than the
executive to oversee the ACT, and that the executive's disallowance power
creates uncertainty and doubt for ACT legislators.[21]
3.22
Although the NT Chief Minister, Mr Henderson, preferred that there be no
Commonwealth override—either by the Federal Government or the Federal
Parliament—he saw benefits in a legislative process as opposed to an executive one:
The current process through section 9 of the Northern
Territory (Self-Government) Act is not transparent, whereas if a piece of
legislation is brought through to the parliament here it would be transparent,
to the effect that people are on the record as to whether they supported it,
did not support it and the arguments for and against. At least a piece of
legislation has a degree of transparency, as opposed to the total lack of
transparency that is provided for under section 9...[22]
3.23
Mrs Aagaard also explained why a legislative override is preferable to
an executive one:
If the Commonwealth parliament decides that it wants to
override our laws then there is a process for the people in the Northern
Territory to be part of that process in terms of the transparency—we all have
federal members of parliament; there is that process—as opposed to a single
minister, with the executive, overriding laws, which I think in 2011 is really
quite unconscionable.[23]
3.24
In a similar vein, Ms Gai Brodtmann MP, Federal Member for Canberra, and
Mr Andrew Leigh MP, Federal Member for Fraser, contended:
Without a constitutional change, the Australian Parliament
will still have the right to overturn territory laws. But this power should
only be exercised in the most extreme cases. Overturning territory law should
require a decision of the federal parliament, and not remain the prerogative of
the executive.
Moving the veto power from the executive to the Australian
Parliament will ensure that an open debate takes place, in which every
Australian Parliamentarian—including the ACT's MPs and Senators—has the
opportunity to speak out.[24]
3.25
Professor Cheryl Saunders AO argued that executive disallowance is an
outmoded procedure that should give way to the openness of legislation:
Because the Territories do not formally have statehood, they
are subject to overriding legislation, on any subject, enacted by the
Commonwealth Parliament. But this at least is an open process, requiring the
executive to explain the reasons for the action that it wishes to take in the
forum of the Parliament, which is designed to subject them to public scrutiny
and debate. By contrast, disallowance of Territory legislation by the
Commonwealth executive, acting through the Governor-General, is an outmoded
procedure that is insulting to Territory voters and for which there is
insufficient accountability at the Commonwealth level, given the significance
of the action.
The disallowance procedure in the Self-Government Acts is
modelled on colonial practice. In colonial times, the imperial authorities
retained power over colonial legislatures through a power of the Monarch to
disallow colonial enactments on the advice of the British executive. There are
remnants of this still in section 59 of the Constitution, which has long
since fallen into disuse. There is no justification for continuing to use a
practice of this kind in 21st century Australia.[25]
3.26
The Law Council agreed that the Bill represents a marked improvement on
the current process:
[A parliamentary] approach, which requires the full
consideration of both Houses of Commonwealth Parliament and removes from the
Executive the power to interfere in the internal affairs of another
properly-elected government on an ad hoc basis, to better align with the grant
of self government and demonstrates a greater respect for the democratic
processes of the elected parliaments of the Australian territories.[26]
3.27
Professor George Williams pointed out that the effect of repealing
section 35 of the ACT Act is merely to alter the process by which the Commonwealth
might override ACT laws, but that a parliamentary process is to be preferred:
Instead of enabling this to occur under section 35 by way of
an executive decision, subject to disallowance by either house of the Federal
Parliament, such an override would need to occur by way of legislation passed
through both the House of Representatives and the Senate. This latter course is
a more appropriate method of achieving this outcome, and is consistent with
both good democratic practice and the importance of ensuring that Australian
citizens in both States and Territories have, so far as possible, the same
democratic rights to self-government.[27]
3.28
In response to questioning by the committee about whether the current
parliamentary disallowance power is an adequate check on any disallowance of a
territory law by the federal executive, Professor Williams provided the
following view:
I would certainly recognise that it is an important check and
it does need to be considered as part of this. But it is a far weaker check, I
believe, than having a requirement that a bill be passed through both houses of
federal parliament. One reason is that the initiation of it by the executive as
opposed to the initiation of a bill in parliament is a very different hurdle. I think
also that there are very different processes involved in disallowing a
regulation or legislative instrument as opposed to making legislation fresh in
the first place, including inquiry processes and the like. I think also it just
comes down to good constitutional principle. When you are dealing with
overriding a law of a subordinate parliament then it is the high-level
parliament that should play the role in doing that. It is not appropriate to
have that depending upon, initially at least, an executive decision. It just
gets the separation of functions wrong.[28]
3.29
Professor Williams continued:
We are talking about two processes that are different but
both involve a level of parliamentary involvement. This is a change of process,
not an opening of the door to a range of matters that are just beyond the scope
of this bill. I would say, though, that there is a fundamental difference when
it comes to the principle involved and the way it is done and, in particular,
the lead role being taken for a veto by the executive as opposed to the lead
role being taken by parliament. When it comes to the development, whether by
the British parliament or other parliaments around the world, this type of veto
would be seen as inappropriate, given the way it operates, even though...there is
an important level of parliamentary control nonetheless.[29]
3.30
The committee received evidence in relation to whether a comprehensive
review of the relevant self-government Acts should be undertaken prior to any
legislative changes such as those proposed by the Bill. Most of this evidence
related to a review of the ACT Act and issues associated with the ACT's right
to full autonomy.
3.31
In this regard, the Canberra Liberals called for a wide-ranging review
of the situation in the ACT, and expressed concerns that passing the Bill in
isolation might inhibit the opportunity for broader reform in the future:
Given the history of self-government in the ACT, the view of
the Canberra Liberals is that it is only rarely that the opportunity presents
itself to review the ACT's enabling legislation, in effect its constitution.
Any such opportunity, therefore, should not be squandered on a single-issue of
an individual political party.
This is impossible to achieve under the cloud of the narrow
focus of the Bill in question and without the appropriate consultation of the
people of the ACT and the people's representatives in the Legislative Assembly.
This is especially so when the Bill is proposed without due
process of consultation, either with all of the Parties represented in the ACT
Legislative Assembly or, more broadly, the people of Canberra.
Any reforms of the ACT's 'constitution' should be developed
and proposed as a package that has the backing of the ACT community through all
of its political representatives in the ACT Legislative Assembly, and the
community at large.[30]
3.32
At the first public hearing, Mr Zed Seselja MLA, Leader of the
Opposition in the ACT Legislative Assembly, reiterated the need for community
consultation and deliberation, so that any changes occur after 'genuine
consultation with the community' rather than 'one amendment at a time'.[31]
3.33
The Law Council also recommended an examination of the constitutional
status of the ACT.[32]
3.34
Professor George Williams favoured the idea of a holistic approach to
constitutional reform, but in the absence of any likely review process,
advocated passage of the Bill as an appropriate option:
Yes, it should be done holistically. I would simply say at
the moment that there is no such holistic process on the books. Successive
governments have neglected their responsibilities in these areas, as looking
after matters of self-government for the ACT. If such a process were to begin,
I think it would be appropriate to put this bill aside to let that process conclude.
In the absence of that—and the absence of any likelihood of that, it would
seem—this is the next best option; that is, to deal with the provisions, even
on an individual basis, that clearly should not be on the statute book. It is
better to do it that way than to achieve nothing...I would accept [a primary recommendation
by the committee for a review of the ACT Act] as long as it was qualified by
the fact that, should such a review not be agreed to as part of the government's
response to your report, the legislation should be proceeded with. That would
give an opportunity to consider that. But I would not like this change to be
put off for a possibility that may never eventuate.[33]
3.35
The ACT Chief Minister informed the committee that he had frequently called
for review of the ACT Act, without success. However, he argued that passage of
the Bill should not be contingent upon any such review:
We have been asking for 10 years for a full review of the
self-government act. This is the first opportunity that I am aware of since
self-government, not just in the last 10 years—I know it is the first
opportunity in the last 10 years and I believe it is the first opportunity
since self-government—where some change, a small change, might be made. So why
would we wait? We also have the capacity to do more than one thing at a time.
This parliament could dispose of this particular proposal, supported by the ACT
government, supported I am sure by the vast majority of Canberrans. This is an
issue of simple principle, and it can pass after a short debate in this place.
So why would we not accept the first opportunity that has presented to amend
and to improve the self-government act? Then we could proceed with a full
inquiry into the continuing appropriateness of the self-government act.[34]
3.36
In this regard, the Department of Regional Australia, Regional
Development and Local Government (Department) advised the committee that the
Federal Government, while not supportive of a joint review of the ACT Act,
'does not object to the ACT Government undertaking a review of the Act' which
is 'driven by the ACT and its residents'. The Department advised further that
the Minister met with the ACT Chief Minister in November 2010, and 'agreed that
the ACT Government would undertake a review of the Act and that the Australian
Government would give serious consideration to the results of the review'.[35]
Objects clause
3.37
Some submitters and witnesses observed that the Bill's objects clause
(clause 4) is inaccurate as it relates to the Bill's constitutional
effect.
3.38
Professor George Williams pointed out that clause 4 makes further claims
than are constitutionally possible, and argued that it should be amended:
The repeal of section 35 will not remove the power of the
Commonwealth to override any ACT law. Such a power is entrenched by section 122
of the Federal Constitution. This means that the object of the Bill in section
4(b) to 'ensure that the Legislative Assembly for the Australian Capital
Territory has exclusive legislative authority and responsibility for making
laws for the Australian Capital Territory' cannot be achieved by the Bill. This
object should be deleted.[36]
3.39
Further:
The original objects include a reference to exclusive
legislative authority for the ACT and that is constitutionally not possible. Senator
Brown's proposed amendment removes that with new objects but they also have one
further problem in that they refer to the ability of the Governor-General not
just to disallow but to amend territory legislation. That is not strictly
correct. The Governor-General can disallow or request or recommend the
amendment and that is a minor technical change which I think would also need to
be made even to the revised objects for the purposes of accuracy.[37]
3.40
Professor Geoffrey Lindell from the University of Adelaide also
commented on the inaccuracy of the objects clause:
The most that can be said about the objective of the Bill is
that it seeks to enhance the powers of self-government by freeing legislation
passed by the ACT (and other Territory) legislation from disallowance by the
Federal Government. Or,...it seeks to ensure that citizens in the ACT (and the
other Territories mentioned in the Bill) should, "wherever possible, enjoy
the same rights as other citizens in Australia to be free from Ministerial (or
Executive) interference in the enactment of legislation passed by their elected
representatives."[38]
3.41
Similarly, Mr Michael Moore remarked on the constitutional overreach in
clause 4:
The legislation will not provide exclusive legislative power
to the ACT. The fundamental difference between the States and a Territory is
the source of power. As a Territory source of power originates from the Federal
Parliament[,] without changes to the Constitution the power to make legislation
will always remain subject to the decisions of the Federal Parliament.[39]
3.42
Certain legal experts provided comment on whether the Bill would enable
the territories to more easily legislate in the areas of euthanasia and
same-sex marriage, and were clear that the Bill would have no direct or
relevant effect in that regard.[40]
3.43
As Professor George Williams explained:
[I]t needs to be stated for the
record that this bill will not allow any laws to be made about
euthanasia by the ACT Legislative Assembly, and of course this bill does not in
any way deal with section 23 of the self-government act that precludes that.
Secondly, this bill will not affect the current power of the territory assembly
to make laws on the topic of same-sex marriage should they so wish. That is a
current power that the assembly has. It is not prevented by section 51 of the
Constitution, which provides for concurrent powers with the states and
territories. That is a power that could be exercised, of course subject to
disallowance or inconsistency or the like, by the territories or the states if
they wished to do so. This bill would not alter that.[41]
3.44
Professor John Williams from the University of Adelaide also argued that
the Bill would not impact on the ability of the territories to legislate in
relation to euthanasia and same-sex marriage:
The capacity of the self-governing territories to pass
legislation on euthanasia is limited by previous amendments to their
self-government acts.
...
Senator Brown's [Bill] does not deal directly, or by
implication, with the Commonwealth Marriage Act 1961. The legislative
capacity of the Territory and State parliaments to legislate on marriage
remains the same and is subject to the operation of the current Commonwealth
legislation on the topic.
...
Whatever the fate of the...Bill it remains the case that the
Commonwealth Parliament will retain control over Territorian legislative
initiatives that may be seen to impact adversely upon the Australian community.
Arguably this is where such authority should solely be placed and...the repeal
[of] section 35 of the Australian Capital Territory (Self-Government) Act
1988 and its equivalents is in keeping with the developments in
parliamentary accountability.[42]
3.45
In relation to the issue of same-sex marriage in the ACT, the Castan
Centre of Human Rights Law submitted:
[T]he Bill would facilitate the passage of such legislation
in the ACT if the ACT legislature wished to pass it, as such legislation would
be shielded from federal ministerial override (though it would not be shielded
from federal legislative override). We submit however that this concern is
irrelevant. The fact is that passage of the Bill will shield all ACT
legislation from executive overrides. If the ACT was to 'abuse' that power and
'go mad' (to paraphrase A.V. Dicey), the federal legislature could override
resulting legislation unless one of its houses also 'went mad'.[43]
Committee view
Overriding support for the Bill
3.46
The committee notes that many submitters and witnesses expressed their ardent
support for the Bill (as proposed to be amended) and its broad objectives. The
committee shares the view that the Bill represents a positive enhancement of
the democratic rights of citizens in the self-governing territories.
Australian Capital Territory and
Northern Territory
3.47
The vast majority of evidence received during the course of the inquiry
related to the circumstances of the ACT and the NT. The committee agrees with
the sentiment of many submitters and witnesses that the legislative assemblies
in those territories have demonstrated a high level of maturity and competence
over many years.
3.48
The Bill's proposed removal of the anachronistic features in sections 35
and 9, respectively, of the ACT and NT self-government Acts would be a significant
step forward in their constitutional history, demonstrating that the
Commonwealth genuinely respects the delegation of lawmaking powers that it made
when it granted self-government. At the same time, as long as the ACT and the
NT continue to be territories—and the committee notes that there is little possibility
that the ACT is able to become a state because it includes the seat of
government[44]—the
Commonwealth would continue to have overarching power over them pursuant to
section 122 of the Constitution.
3.49
As a matter of basic principle, therefore, the committee considers that
the power of the federal executive to override legislation in the ACT and the
NT is inappropriate and unwarranted. The committee therefore strongly supports
the Bill's objectives in removing that power in the ACT and the NT, and
replacing it with a parliamentary process that is more in keeping with sound
democratic practice.
Norfolk Island
3.50
In the case of Norfolk Island, however, the committee is reluctant to
support any changes to the NI Act without further evidence demonstrating such a
need. Only two substantive submissions specifically considered the situation on
Norfolk Island, and each provided an opposing viewpoint.[45]
Neither the Norfolk Island Chief Minister nor the Speaker of the Norfolk Island
Legislative Assembly made submissions to the inquiry, despite being
specifically invited by the committee to do so.
3.51
The committee is also of the view that Norfolk Island may be
distinguished from the ACT and the NT in a number of ways. For example,
Norfolk Island's population—of approximately 2100 people—is on a very
different scale to that of the ACT and NT. The committee is also mindful of Norfolk Island's
recent history of legislation, with six bills having been refused assent since
2003 by either the Governor-General or the Administrator,[46]
coupled with apparent significant and ongoing Commonwealth involvement in
legislative and assent processes.[47]
3.52
The committee also notes that the Federal Government's approach in the
recent Territories Law Reform Act 2010 was weighted towards greater
Commonwealth control over affairs in Norfolk Island, and the committee
considers that it would be counterintuitive for the Federal Parliament now to
take a different course.
3.53
Finally, the current financial crisis facing the Norfolk Island
Government indicates to the committee that the timing is inopportune for
further amendment of the island's 'constitution' so soon after it has undergone
the large-scale amendments made by the Territories Law Reform Act 2010.
The committee therefore concludes, on the basis of the evidence before it in
relation to Norfolk Island, that any changes to the Norfolk Island Act 1979
should not be supported at this time.
Comprehensive constitutional review
3.54
As a general principle, and despite its expression of strong support for
the Bill's objectives in relation to the ACT and the NT, the committee does not
consider that piecemeal amendments represent good legislative practice. There
may be certain flow-on effects arising from such amendments which have not been
given due consideration, or which are not yet known; and these may result in legislative
and practical inconsistencies that are not desirable. A more thorough approach
would have ensured that no unintended consequences arise from implementation of
the Bill, and that any necessary consequential amendments could be made.
3.55
Further, an approach which fails to look at the broad range of issues
affecting the autonomy of the ACT and the NT may not be the most appropriate
way of addressing outstanding self-determination matters in those territories,
and may not ultimately represent the most considered solution. The committee
believes that a systematic and holistic review of self-government arrangements
in the ACT and the NT holds merit, and would help to address some of the
specific issues raised during this inquiry.
Australian Capital Territory
3.56
The prospects for wide-ranging review of the ACT Act, in particular,
were discussed at length during the committee's inquiry. The ACT Chief Minister
expressed his desire for a review of self-government arrangements in the ACT to
examine broader issues than those encapsulated by the Bill. For example, he
called for an amendment to section 8 of the ACT Act to permit the ACT
Legislative Assembly to determine the number of its members.[48]
The Canberra Liberals also strongly supported a process of consultation and
review.
3.57
In this context, the committee notes that there have already been two
joint Commonwealth-ACT reviews of the ACT Act—in 1993 and in 1997-1998. The 1993 review
led to the introduction of the Arts, Environment and Territories Legislation
Amendment Bill 1993 by the then Labor Government. That bill proposed, among
other things, to provide the ACT Legislative Assembly with the power to decide
the number of its MLAs. However, the committee understands that provision was
omitted during consideration by the Senate.
3.58
A second Commonwealth-ACT review—the Pettit Review—was conducted from
November 1997 until April 1998.[49]
It led to a four-year process in the ACT Legislative Assembly, which included
the setting up of a select committee. In 1999, that select committee
recommended a detailed review of the ACT Act.[50]
In December 2001, the ACT Legislative Assembly Standing Committee on
Legal Affairs began a further inquiry into the number of ACT MLAs, and reported
in June 2002.[51]
3.59
During the current inquiry, a departmental officer informed the
committee that the Federal Government has advised the ACT Government that a
review of the ACT Act could be undertaken by the ACT Government of its own
volition. The Department provided information to the committee which suggests
that the Department and, indeed, the Minister would welcome any advice relating
to the results of a review undertaken by the ACT Government. The committee
understands that such results would be given due consideration.[52]
Noting the strong desire for a comprehensive review in the ACT and the
agreement between the ACT Chief Minister and the Minister in November 2010, the
committee strongly encourages the ACT Government to commence such a review.
Northern Territory
3.60
In the Northern Territory, the move towards statehood and, in
particular, the proposed Constitutional Convention to be held later this year,
make the process of review somewhat different than for the ACT. As was noted
during this inquiry, the population of the NT is now greater than that of some
of the original states in 1901[53]
and, given that the NT also constitutes some 10 per cent of the land mass of
continental Australia, the committee considers that a move towards statehood makes
good sense. Of course, statehood would ultimately remove the NT from the
purview of section 122 of the Constitution.
3.61
The committee places on record its strong support for statehood in the
NT, and encourages the NT Government and the NT Legislative Assembly to pursue
initiatives for progression towards statehood as soon as practicable. The
committee would also welcome any opportunity to work cooperatively with the NT
Legislative Assembly Standing Committee on Legal and Constitutional Affairs
towards achieving that goal.
Amendments to the Bill
3.62
Notwithstanding its support for the Bill's objectives in relation to the
ACT and the NT, the committee considers that some amendments are necessary to
address certain concerns it has with respect to the Bill as currently drafted.
Objects clause
3.63
Specifically, the committee notes evidence suggesting that clause 4 of
the Bill, as well as the proposed amendments to clause 4, contain a significant
misstatement of the law in providing that one of the objects of the Bill is to
ensure that the legislative assemblies of the territories have 'exclusive
legislative authority and responsibility for making laws' for their respective
territory.
3.64
Although the objects clause does not have any impact on the actual
amendments to be effected by the Bill, the committee is of the view that it
should be as accurate as possible. By virtue of section 122 of the
Constitution, the Commonwealth has overriding responsibility for the
territories, and the Bill will not change this situation. The committee
believes that amendments are necessary to remove any statement about
legislative authority from clause 4, and to ensure that the objects clause
simply refers—accurately—to the effect of the amendments it is making. The
committee notes in this context that Senator Brown has signalled his intention
to amend the objects clause.[54]
3.65
Clause 4 as currently drafted (and as proposed to be amended) also
suggests that the Governor-General can amend any enactment of the territory
legislatures, in addition to his or her power to disallow an enactment. In
fact, the current provisions give the Governor-General a power to recommend
amendments, either to the Legislative Assembly for the ACT or to the administrator
for the NT (and Norfolk Island). Again, the committee recommends that this
inaccuracy be addressed prior to the Bill proceeding.
Recommendation 1
3.66
Notwithstanding the view expressed in paragraph 3.55 of this report, the
committee recommends that the Senate pass the Bill (as proposed to be amended),
as it pertains to the Australian Capital Territory (Self-Government) Act
1988 and the Northern Territory (Self-Government) Act 1978, subject
to:
-
removal of references in clause 4 to providing the relevant
territory legislatures with 'exclusive legislative authority and responsibility
for making laws'; and
-
amendment of clause 4 to more accurately reflect the current
power of the Governor-General to recommend amendments to territory laws.
Recommendation 2
3.67
The committee recommends that the proposed amendments to the Norfolk
Island Act 1979 with respect to removing the Governor-General's power to
disallow Norfolk Island legislation should not proceed until further evidence
is provided that clearly supports a need for change.
Senator
Trish Crossin
Chair
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