Monday, 31 October 2011
Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Bill 2011; Second Reading
I present the explanatory memorandum for this bill and I move:
That this bill be now read a second time.
Democracy is not fixed and set. There is no blueprint which we have to follow. Democracy evolves and the meaning that is given to democracy changes over time. But what does not change is the core value at the centre of democracy. That core value can be summarised in this way: the people will decide how and by whom they are governed. In other words, the people will have and enjoy a right to self-government. And that is what this bill is about. It is about giving real self-government to the people of the Australian Capital Territory and the people of the Northern Territory. It is about removing the power of the minister to trample on the democratic rights of citizens of the ACT and the NT and it is about taking the next step in the evolution of our democracy in Australia. I am very proud to be moving this bill, which is an initiative of the Australian Greens to give the citizens of the Australian Capital Territory and the Northern Territory equal constitutional rights. If it passes today it will be the first bill initiated by the Australian Greens to pass the parliament. In particular I want to pay tribute to the leadership of Senator Bob Brown with his longstanding campaign leading the parliamentary process on territories' rights. I hope all parliamentarians will get behind this bill, which has already passed the Senate in an amended form.
The bill, the Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Bill 2011, has been through an exhaustive debate and inquiry in the Senate. It has been improved by amendments negotiated between the government and the Australian Greens, and I hope it will soon become law. The Constitution says in section 122, with the headline 'Government of territories':
The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth …
That is what is in process here today.
A couple of decades ago this same parliament under the Constitution to make laws for the territories, legislated to transfer its power to the executive—that is, the minister of the day. This means that with the stroke of a pen a minister can override the outcome of a deliberated vote following a debate of the elected representatives of the assemblies either in Canberra, in relation to the ACT, or in Darwin, in relation to the Northern Territory. This bill simply goes back to where the Constitution would have it—that is, the territories will effectively legislate unless or until a vote of both houses of parliament overrules legislation or passes legislation for either of the territories. We cannot change that provision of section 122, or of section 123 which also deals with limitations on the powers of the states, unless we go to a referendum.
There is the prospect that the Northern Territory, which I think is moving in that direction again, will eventually end up subject to a referendum. I would not discount the possibility, as others have, that at some future time Australians might want to give the growing population of the ACT the ability to have self-determination through a form of statehood which would provide for all the amenities of this being the national capital but also provide for enhanced powers for the people of the Australian Capital Territory. That is a matter for future debate.
This legislation today simply restores at least the right of the assemblies to pass legislation for their citizens without being overridden by a minister without reference to this parliament. It is as simple as that. It does not, as some who have attempted to run a scare campaign on this issue have suggested, refer to equal marriage or euthanasia. In fact, it enhances the powers of the territories to legislate at least in the matter of equal marriage if it wants to, but that is entirely a matter for the territory, just as it is a matter for New South Wales, South Australian, Queensland, Western Australian and Tasmanian parliaments. But it will not allow territories to enact legislation on euthanasia because the Andrews bill, passed by this parliament and opposed by the Australian Greens, is still in force and would prevent it. So the scare campaign by the opposition is simply misdirected.
So that the opposition is absolutely clear about what this bill does and does not do, I will outline in some detail the features of the bill and the process that has led us here. The bill amends the Australian Capital Territory (Self-Government) Act 1988 to repeal the provision which enables the Governor-General to disallow and recommend amendments to any act made by the ACT Legislative Assembly. The bill, along with amendments circulated by Senator Brown extending the operation of the bill to the Northern Territory and Norfolk Island, was considered by the Senate Legal and Constitutional Affairs Committee. The majority report of the committee recommended the bill be extended to the Northern Territory but not Norfolk Island and that the objects clause of the bill be amended to better reflect the content of the bill. A dissenting report by the Liberal members on the committee expressed their opposition to the amendments.
During debate in the Senate on the bill, the government moved amendments which had been agreed with the Australian Greens. The amendments did the following: changed the title to the Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Bill 2011, amended the objects clause to more accurately represent the objects of the bill, and repealed similar provisions in the Northern Territory (Self Government) Act. The coalition moved amendments to preserve the ability of the federal executive government to disallow territory law if the law is inconsistent with a federal law, and specifically referring to laws inconsistent with the Marriage Act. I understand the opposition will move similar amendments in this chamber.
The Australian Greens will be opposing these amendments as they undermine the intention of the bill, which is to remove the executive power to disallow territory law. The Constitution continues to provide for the parliament to overturn territory law. The whole thrust of this legislation is to give the territory assemblies, as far as is practicable, the same rights to pass laws for their citizens as the state assemblies have. These amendments want to cut down the rights of the people of the territories to deal with marriage laws in ways that are not different from those of the states. This cuts across the whole principle of the legislation. The Greens will not be supporting the coalition amendments.
The Attorney-General provided advice to the government that the opposition amendment is unnecessary to maintain the status quo in section 122 of the Constitution. The bill has the strong support of the Chief Ministers of the ACT and Northern Territory. They both appeared before the Senate inquiry calling on this parliament to respect their democratic mandate. I have here their letters to the committee and Senator Brown. One from the Chief Minister for the Northern Territory government, dated 8 March this year, said:
The Northern Territory Government expresses its support for the Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Commonwealth) Bill 2010.
The amendments to the Bill are consistent with my Governments position that limitations to the Northern Territory's legislative and executive powers that are not imposed on the States should be removed, and consistent with the Northern Territory's commitment to achieving Statehood.
Thank you for the opportunity to contribute to the Inquiry.
Dear Senator Brown,
I write to thank you again for your ongoing support of the ACT's bid for stronger self-government arrangements through your introduction and continued espousal of the Australian Capital Territory (Self Government Amendment Disallowance and Amendment Power of the Commonwealth Bill 2010 (the Bill).
As you are aware, the bill was referred to the Senate Legal and Constitutional Affairs Committee for inquiry. The ACT government, along with many other groups and individuals, made a submission to the inquiry supporting the bill. The committee's report was tabled on 4 May 2011. I understand the bill is likely to be considered again by the Senate shortly.
It went on to say:
Given the committee's support for the passage of the bill, I am optimistic of wider support. I note Commonwealth officials appearing before the Senate committee indicated the federal government intends to support the bill. I ask that you also continue to voice your support for the findings of the committee and rally for an affirmative vote in favour of the bill. The committee has recognised that our assembly and its members have 'demonstrated a high level of maturity and competence over many years'.
I believe, as you do, that it is time the ACT's self-government arrangements reflected this and it is my sincere hope that you will support the passage of this bill to allow the citizens of the ACT to have their views represented in a legitimate, democratic parliament—the birthright of all Australians.
Thank you for your initiative on these important issues. I have also written to all crossbench and opposition senators urging them to support the bill.
In conclusion, in the 2008 election 220,019 voters in the Australian Capital Territory elected a legislature. And in 2010, 80,029 voters of the Northern Territory elected their legislature. Their laws should not be overridden by the federal government and, in particular, by the executive of the federal government. The executive can and does meet in secret, without the direction or agreement of the parliament. The provision for the executive to override the Australian Capital Territory's and the Northern Territory's laws leaves parliament and its consultative committee system diminished and reactive. This is not the spirit of the Constitution. This removes the anomaly and restores the parliament's exclusive power to wield or constrain Constitutional authority over the territorial assemblies. I commend the bill to the House.
The coalition has always been a strong proponent of the rights of people who live in the territories and, in particular, the rights of people who live in the three territories affected by this bill: the Australian Capital Territory, the Northern Territory and Norfolk Island. We note that the Northern Territory has resumed a movement towards statehood. That is a movement which, in the 1990s, although ultimately defeated, was strongly supported by the then coalition government led by John Howard.
Coalition members of this parliament—and in particular I would like to acknowledge Senator Gary Humphries, a former Chief Minister of the ACT and his predecessor, Senator Margaret Reid—have been ardent advocates for the rights and interests of the citizens of the ACT. The issue of statehood for the ACT does not generally arise in these discussions, though, because of the peculiar nature of the ACT's constitutional position.
Respecting the rights of citizens who live in Australia's territories, particularly the two territories that are directly represented here, is an important part of the federal philosophy of the Liberal and National parties. This bill purports to bring about a fundamental constitutional change to the status of those territories and the relationship of those territories to this parliament. Those of us who take the interest of territorians seriously have grave concerns that, because of the piecemeal haphazard and sloppy manner in which this bill has been presented to the parliament by the Greens, passage of the bill in this form will in fact retard and set back the recognition of the rights of territorians—in particular, having regard to the fact that the process in the Northern Territory is proceeding towards statehood in a methodical and careful way. Those who would like to see statehood for the Northern Territory do not want this bill in this form.
This is by no means easy. We do not enjoy the luxury—that the Greens have—of pontificating about issues without having the responsibility to put our views into effect. If the Greens had met with voters who were seeking to prosecute the case for Northern Territory statehood, they would understand better how constitutionally and politically difficult it is. Those who seek to advance the cause of Northern Territory statehood do not need a gratuitous intervention like this, so the opposition will not be supporting this bill.
We support the wisdom of the observation made by the Senate Legal and Constitutional Affairs Legislation Committee when it reviewed the legislation and cautioned against the piecemeal approach to the issues of self-government. My good friend the member for Solomon will shortly be moving a second reading amendment addressing this issue and elaborating further upon what the Senate committee report found.
There is another reason we in the coalition oppose this legislation. We rightly look with a very sceptical eye over anything that comes from Senator Bob Brown and the Greens. With this deeply sceptical eye we follow through the media the debate about same-sex marriage, which has divided the Australian Labor Party, and the concerns expressed—in particular by two Labor senators, former Senator Mike Forshaw and former Senator Steve Hutchins, reflected by way of their dissenting comments for the committee report—that this bill, although on face value a constitutional bill, is being sought for use as a vehicle for same-sex marriage to be introduced in the Australian Capital Territory.
On the purpose of the bill, we have been informed by comments from former Chief Minister of the Australian Capital Territory, Jon Stanhope, in the context of this debate. He made it perfectly clear that he would use this legislation, were it to be passed, as a vehicle to introduce same-sex marriage in the ACT. Mr Stanhope revealed the purpose of his thinking, which is the thinking that is behind this bill. It is not clear whether that purpose is continued by the current ACT Chief Minister, but at the time this bill was being shaped in the mind of Senator Brown and the Greens we know what Mr Stanhope thought it would lead to and what he wanted it to lead to.
We know that on the issue of same-sex marriage the Labor Party is deeply divided between those who are proponents of this issue and those, particularly from the more conservative elements of the Labor Party, who are trenchantly opposed to it. We on this side of the House have no division on our side about what we believe and we continue to wholeheartedly support the Howard government's amendments to the Marriage Act. We do not support same-sex marriage. We are not having an argument on this side of the House about same-sex marriage at the moment.
Everyone who thinks that there are not some in the Labor Party who see this bill as a step towards the enactment of same-sex marriage within the ACT is either completely deluded or dishonest. There are many in the Australian Labor Party who do see this bill as a pathway to that outcome. We do not accept the good faith of Senator Brown's public assurances that this bill is purely about the rights of territorians, and the member for Solomon will have something to say later about the consistency of Senator Brown on the issue of territory rights. So, on the face of it, this is a constitutional bill and a bill of general application, but what we know is that it is part of a move to achieve an outcome in relation to the Marriage Act to which we in the coalition remain trenchantly opposed. For this reason the opposition will be opposing the bill and we will be supporting the second reading amendment that I foreshadowed earlier.
It will, of course, be no surprise to the House that I rise to speak in favour of this legislation, because I do—despite what others might say—take the rights of territorians very seriously. I am a citizen of the Australian Capital Territory and I have been so for a very long time. It is the community that I proudly represent in this chamber and I am glad to be able to stand here this afternoon and speak on behalf of the citizens of Canberra, the people of Canberra. This Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Bill 2011 represents another step towards ensuring that the citizens of the ACT and the Northern Territory are granted a right freely available to every other Australian citizen: the right for the legislation of their duly elected parliament to be free of veto by executive government.
As it stands, citizens of the ACT can vote for a legislature, have that legislature enact laws on their behalf and then see those laws overturned by a single member of cabinet—a minister who will almost certainly be from outside Canberra and may in fact have their home several hundred, or even several thousand, kilometres from the community on which they seek to impose their will. This is a situation that is untenable and a situation I believe runs counter to the democracy of this country. This bill will seek to end the veto.
In speaking today it should be noted that this bill represents the latest step to ensuring the democratic rights, equality and equity of the citizens of the ACT and the Northern Territory. It may interest the House to know that citizens from the ACT have not always had political representation. In fact, it was not until 1949 that they received a representative in this place. However, this member was not a full voting equal in the chamber. The member for the Australian Capital Territory held no general vote here, only a vote limited to those issues directly related to the ACT. In fact, it was not until 1966 that full voting rights were granted and, further, it was only in 1989 that Canberrans were given the power to even decide the future for their own communities, when the first legislative assembly was elected. Before the establishment of the assembly in 1989, the future of the ACT community was decided directly by the federal government, again by people who did not live here.
I was fortunate enough to work in the assembly in the early days of self-government and so I witnessed firsthand the work of the assembly. I worked with the first ACT Chief Minister, Rosemary Follett, in those early days. They were pretty crazy early days because we had an assortment of parties in with us. It was a challenging time. In that first election we had the Sun-Ripened Warm Tomato Party and the No Self-Government Party included among an array of other interesting parties. Fortunately, many of them did not get up, but, from memory, some No Self-Government Party people who formed part of that first assembly. We had very colourful early days of the assembly and of democracy here in Canberra at the assembly level. But, after a challenging, difficult and colourful birth, for more than 20 years the legislative assembly has been making laws for the peace, order and good governance of the ACT and it has grown to be a mature, stable chamber that is accountable to its constituents.
From ambivalent beginnings—
and they were ambivalent—
self-government is now firmly embedded in the consciousness of our community. The ACT, through its stable government and mature parliament, has embraced the social responsibilities with which it is charged. On average, Canberrans are among the healthiest, the best educated and most prosperous in Australia. We are just, free and relatively free of prejudice. We have grown in population terms and as an indispensable presence in our region. We have also grown as a community, a vibrant and engaged polity, and increasingly we are recognised as such by a nation whose capital and seat of government we are proud to uphold and sustain.
So it is truly stunning that, having granted Canberrans the right to elect their own representatives and having granted them the right to decide the fate of their own community, the Governor-General, on the advice of a single minister—probably from out of Canberra—still has the ability to overturn legislation. I cannot understand why, if we are to grant to Canberrans the right to elect their own governments and enact their own laws, such a power would still exist. It is simply not fitting with the notion of modern Australian democracy. Surely, given that this place has granted the territories the right to govern, it should allow them to do just that, and respect the legislation the assembly passes.
I want to again quote Jon Stanhope, because he said that not to do this is:
… a constraint on the legislative rights of the ACT that is both unnecessary and undemocratic.
He went on to say:
It constrains the mandate imparted on the elected representatives of the ACT to govern the Territory responsibly and accountably.
I was very interested to read the submission by George Williams to the Senate inquiry. George is quite a brilliant legal scholar and somewhat of an expert on territory self-government. He said in his submission:
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 to 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.
This is a view supported by the Australian Law Council, which said:
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 …
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.
We are talking here about a population that is highly educated and highly altruistic. Most of the people who come here to work in the Public Service want to make a difference. They want to take part in public service, they want to be public servants, they want to make a difference to this nation. They are highly motivated and highly committed to the enhancement and benefit of this nation, and yet they have diminished rights. In the ACT we have one set of rights; if you drive over the border into Queanbeyan you have got enhanced rights.
These are just three excerpts from the report of the Senate inquiry into this bill. Submission after submission to the inquiry spoke about how the current way of operating is outdated and against the interests of democracy. Given this, it is difficult to see why this bill has caused so much consternation among groups in the community. It is the principle of democracy here. I suspect that the concerns stem from some inaccurate and, I believe, at times mischievous reporting in the media about what this bill is actually about. We have also had some of those comments from those opposite today.
Let me outline what this bill is and what it is not. This is a not a bill about euthanasia. It is not a bill about same-sex marriage. It is not a bill that grants the territories statehood. This bill continues the long history of granting citizens of the ACT political rights. This bill ends the ability of the federal executive government to arbitrarily, and without oversight or input, override the legislation of a self-governing territory. This bill is about equity, this bill is about equality, this bill is about democracy. It does not change the ability of the federal parliament to legislate to override legislation. While this in itself may not be ideal to some, I accept the fact that the ACT is a territory and as such is subject to the relevant section of the Constitution. However, this is a far superior process to that which currently exists. As Professor Cheryl Saunders said in her submission:
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.
Despite all the evidence in support of this change, despite the very real principle at stake here, there was some concern expressed in the Senate report. In particular, I note the view expressed by the coalition senators that this bill should be set aside until a full review of the territory self-government act is undertaken. However, the passage of this bill and such a review are not mutually exclusive. The passage of this bill does not rule out any future review of the legislation—a review that has long been advocated by successive ACT governments. I also note the coalition senators' scepticism of the motivation of Senator Brown and the Greens political party. I do not know what his motivations are for putting this legislation forward. But it is the right thing to do for the people of Canberra and I urge the opposition to support this legislation.
Removing the power of the executive to overturn the duly passed laws of a territory is more fitting with the notion of a modern Australian democracy. The legislatures of the ACT and the Northern Territory are mature bodies that have for decades proven their stability and their ability to govern well for their communities. The answer to overturning legislation should be through the will of the community demonstrated through the ballot box—not through executive fiat. The method proposed in this bill is a much better way of ensuring that good laws are made and, in the case of Australia, it has stood the test of 110 years. I urge the members of this chamber to focus on the contents of this bill, on the principle of this bill, and not on the inaccurate and extraneous discussion on the sidelines. I urge members to support the enfranchisement of members of my community, the Canberra community. I urge them to support the equality of the Canberra community, equity for the Canberra community and democracy for the Canberra community. I urge them to support this legislation.
I move the amendment circulated in my name:
Omit all words after “That”, substitute: “the House declines to give the bill a second reading, and:
(1) notes the comments of the Legal and Constitutional Affairs Legislation Committee on the bill that ‘an approach which fails to look at the broad range of issues affecting the autonomy of the Australian Capital Territory and the Northern Territory 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 Australian Capital Territory and the Northern Territory holds merit, and would help to address some of the specific issues raised during this inquiry.’;
(2) affirms that the process by which the Australian territories move towards greater legislative independence, consistent with the overall framework of the Australian Federation, should continue, but that a more systematic and comprehensive approach is to be preferred; and
(3) calls for a full review of the Australian Capital Territory (Self-Government) Act 1988 in lieu of piecemeal amendments to that Act.”
I will return to that in a moment. The question that I ask today when looking at the Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Bill 2011 is: what are the Australian Greens seeking to address with the progression of this bill?
We heard the member for Canberra also wanting to know what the Greens motivation was. Is it in fact for the betterment of Territorian self-government prospects, or for some other agenda to which we are not privy? The Greens appear to be the friends of the territories; they appear on the surface to care about the rights of the territories; and they appear to understand the need to develop further and champion regional autonomy, autonomy which the Northern Territory and the Australian Capital Territory desire. This disallowance bill is brought forward to prevent the ACT and the Northern Territory from being pushed around by ministers in a federal government. This bill gives expression presumably to the principles of self-determination which were intrinsic in the self-government acts of 1970 and 1980.
Consideration of this bill in my view opens the door for constitutional concern, particularly as the bill gives greater legislative powers to territories beyond those currently enjoyed by the states. In fact, as stated by my colleague Senator Scullion in the other place, the bill as it stands would allow a territory parliament to pass any law, including a law in the area that is the responsibility of the Commonwealth as defined in section 51 of the Australian Constitution. This action would result in no immediate avenues to address this.
The motives of Senator Bob Brown and the Greens are definitely unclear. I agree with the commentary by my colleague in the other place Senator Humphries: something does not quite sit right with Senator Bob Brown being the champion of the second tier of government in this country. I remember growing up and watching Bob Brown in the 1980s campaigning against the Tasmanian government who were trying to build a dam. Dr Brown, as he was known then, argued that the conflict over the dam being built in Tasmania should be resolved by the federal government. He wanted the then federal government to interfere and intervene in the affairs of self-governing Tasmania. Where were Senator Bob Brown's champion views of the rights of the territory or state governments back then? Some may suggest that perhaps Senator Bob Brown feels differently about the territories than he felt about Tasmania back in the 1980s. Perhaps, now that he sits in the federal parliament, he has a different view; I am not convinced that that is the case either.
Senator Brown's record with respect to the territories has not really been consistent. I refer to the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999, which Senator Bob Brown introduced to override the rights of self-governing Northern Territory to legislate in favour of mandatory sentencing for certain people who commit crimes. Senator Brown was unhappy with that act of self-governance by the Northern Territory and was quite comfortable in 1999 to introduce legislation to override the rights of the Northern Territory.
We can with some measure anticipate what the Greens are going to say: 'Our actions were justified in intervening in the affairs of the Northern Territory because there were fundamental human rights issues that impacted Australia's international obligations under treaties; therefore, it was okay to intervene in Northern Territory affairs on that occasion.' Unfortunately, intervention in the affairs of self-governing states or territories by Senator Brown does not end there.
In 2003 Senator Brown again promoted intervention in territory rights, on this occasion in the ACT, with a motion of disallowance. As stated by my colleague Senator Humphries, back in 2003 Senator Brown was quite happy to move a motion of disallowance to prevent a certain road project proceeding in the Australian Capital Territory—the widening of the Gungahlin Drive extension—despite the project being supported by the then ACT government. Senator Brown did not approve of the building of that road. He did not like the idea of that road being built and he did not want the ACT to make its own decision about the road. He knew better. He would bring the weight of the federal parliament down on the ACT and prevent the building of that road.
I refer again to the Northern Territory and the current drive by the Greens to quarantine commercial and recreational fisheries. If the Greens were to have their way, they would create vast marine sanctuaries across the broad northern Australian coastline. These sanctuaries in effect would stop the activities of the local Northern Territory commercial fishing industry and recreational fishing, not to mention infuriating the one-third of Top Enders who proudly claim, 'We own a boat and we vote.'
Senator Brown has no credibility on such issues. Senator Brown has been no friend to territory autonomy. 'Opportunistic' might be a better descriptor. He is happy to champion the rights of Territorians to legislate and maintain their own governance when he agrees with what they propose. But then he is only too happy to trash territory rights when it is his belief that his interests are not being served.
There is a convention in federal parliament that the Commonwealth does not interfere with the legislation of a territory parliament where the legislation is consistent with the powers of a state parliament. A well-known exception was when the federal parliament overturned the Northern Territory euthanasia laws. Euthanasia is an area of legislation or issue that remains the responsibility of the states under the Constitution. Now under this bill the power of the federal parliament to undertake similar actions in the future is maintained. So, if this bill is really all about preventing federal intervention in the legislative powers of the territories, why was this issue not included in the bill?
The coalition is not going to play along with the cynical game that the Australian Greens are promoting with this sudden interest in the governance practices of the territories. There are serious issues about the form and the effectiveness of self-government. These are real issues which deserve systematic and careful examination by the federal parliament; not a piecemeal approach to legislative design based more upon political purposes than on the advance of a systematic examination of what is wrong and what needs to be fixed about the institution of self- government in the Northern Territory and the ACT. This bill does not address those fundamental issues. This bill is opportunistic and designed to portray the Greens in the most favourable electoral light; this is not an attempt to fix what I think we all know needs to be addressed.
I have moved a second reading amendment which acknowledges the findings of the Senate Legal and Constitutional Affairs Legislation Committee which state that there are issues which must be addressed and which this legislation does not address. The second reading amendment affirms the process by which the states and territories can move towards greater legislative independence consistent with the framework of the Australian Federation. In the case of the Northern Territory that may well include a move towards statehood. This is one topic most Territorians are passionate about. In the 1990s, the movement toward statehood was strong. It was supported by the coalition government of the day, led by Mr Howard. However, history shows this question was ultimately defeated. The move toward statehood has been gaining strength in the Northern Territory. We are not quite there and further work is required. But I believe within the next few years this question will be asked again and I am confident we will get statehood. The ACT may not be looking at statehood, particularly due to its position constitutionally, but certainly the ACT's institution of self-government is in need of an overhaul. It is now more than 22 years old.
The piecemeal approach taken by this bill is not a satisfactory solution to the problem. I have heard the support of the Labor Party for this bill. I note that there is a large measure of disparagement in their position. It was only three years ago that the Labor Party was perfectly content to support the decision of then Prime Minister Kevin Rudd to intervene, using the disallowance power to overrule the then proposed resurgence of civil union legislation in the ACT—legislation which had been proposed during the Howard government and which the ACT government came back to propose again when the Rudd government was elected. Of course the Rudd government rejected that suggestion.
I have lived in the Northern Territory all of my life. I engage with my electorate, I listen to their views and I represent them to the best of my ability. I can guarantee you that they do not want further meddling by federal politicians, particularly with the institution of self-government, not without a systematic and broad review of all the processes. Like my colleague Senator Scullion, I do not seek greater rights for the Northern Territory than the states have; I simply seek equal rights. I know Northern Territorians would welcome the opportunity to engage in a consultative process designed to comprehensively examine the status of self-government. That is by far the better approach, not the approach inherent in this piecemeal legislation that could potentially impact on any future statehood aspirations of the Northern Territory.
The original question was that this bill be now read a second time. To this the honourable member for Solomon has moved as an amendment that all words after 'That' be omitted with a view to substituting other words. The question now is that the amendment be agreed to.
I rise to support the Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Bill 2011. This bill, as amended by the government in the Senate, is good for Australian democracy. It is about strengthening the democratic rights of the Northern Territory and the ACT parliaments and thereby their people. The government do not support overriding the decisions of the territories with the stroke of a ministerial pen. We made that clear in 2006 and we reaffirm it today. By removing the power of the Commonwealth executive to disallow legislation enacted in the ACT and the Northern Territory at the stroke of a pen, this bill recognises the maturity of the legislatures in these self-governing territories. The ACT and Northern Territory were created by acts of this parliament. Their legislatures are rightly subject to the deliberations of this parliament not unilateral actions of the executive.
There has been a lot of debate about the purpose of this bill. On 2 March, the bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee for consideration. That committee reported back on 4 May. The inquiry strongly supported the removal of the Commonwealth's powers to disallow ACT and Northern Territory legislation, and leaving the parliamentary process as the means of exercising Commonwealth influence over ACT and Northern Territory legislation. The inquiry concluded:
... a parliamentary process is more in keeping with a sound democratic practice.
That conclusion reflects the advice also of expert bodies such as the Law Council of Australia, who pointed out in their submission that 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.
The inquiry did not recommend extending the operation of the bill to Norfolk Island. That decision was in recognition of the differences between Norfolk Island and the other self-governing territories. Norfolk Island's population of 2,100 is much smaller than the ACT and the Northern Territory. Also, as members would be aware, the passage of the Territories Law Reform Act 2010 provides the Commonwealth with increased oversight and scrutiny of Norfolk Island legislation to ensure that it is consistent with the national interest. In view of these reforms, it would be inconsistent for the bill to apply to Norfolk Island.
This bill was then reviewed by the House Standing Committee on Social Policy and Legal Affairs. They found that the Senate inquiry was extensive and the bill was well scrutinised. They recommended that this House pass the bill. The bill reflects the inquiry's conclusions and those of many of the substantive submissions received by the committee. These submissions expressed a clear preference for a parliamentary rather than an executive override of territory legislation. On 18 August 2011, the Senate approved the following government amendments to the bill, consistent with the inquiry's recommendations: first, removal of references in clause 4 to providing relevant territory legislatures with exclusive legislative authority and responsibility for making laws; second, changing clause 4 to more accurately reflect the current power of the Governor-General to recommend amendments to territory laws; and, third, excluding Norfolk Island from the operation of the bill. While the bill supports greater legislative independence for the ACT and Northern Territory, it will not stop the Australian government acting in the national interest in an open and transparent way should there be a conflict between Commonwealth and territory legislation. The Commonwealth parliament's plenary power under section 122 of the Constitution to make laws for the government of any territory will remain unchanged. This power allows the Commonwealth legislature to override legislation passed by the legislative assemblies and can be exercised through a parliamentary process in accordance with sound democratic practice.
The government's position, given that this issue has been raised as well, on same-sex marriage is also unchanged. Under the Marriage Act, a Commonwealth act, marriage means the union of a man and a woman to the exclusion of all others voluntarily entered into for life. The act also sets out certain requirements in relation to marriage ceremonies. As a Commonwealth law, the Marriage Act will override any inconsistent state or territory law to the extent of that inconsistency. This means that no state or territory can enact its own law to define marriage or any law that would otherwise be inconsistent with the Commonwealth Marriage Act.
Nor is this bill about euthanasia. Members of this House will be aware that the territories are prevented from enacting euthanasia laws by the Euthanasia Laws Act 1997. Members will also be aware there is another privately sponsored bill that has been introduced in the Senate regarding euthanasia, and we will have an opportunity to debate that another time.
Through its support for this bill, the government is demonstrating its commitment to a key finding of the inquiry:
… 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 …
As the inquiry noted, support of the bill by this parliament will provide a powerful demonstration of the Commonwealth's genuine respect for the delegation of law-making powers that it made when it granted self-government to the Northern Territory and to the ACT in 1978 and 1988 respectively.
The Northern Territory and ACT were granted self-government well over 20 years ago, and over that period the two assemblies have displayed considerable maturity and capacity to run their affairs. Indeed as Professor George Williams has pointed out:
… 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.
In the case of the ACT, few could have imagined its evolution since it was granted self-government in 1988 some 10 years after a 63 per cent 'no' vote against self-government. The ACT was transformed into a fully functional, self-governing territory with a vibrant and engaged community and a legislative assembly that is recognised as a regional leader and an important contributor to federal forums. In the Northern Territory, the success of self-government is best evidenced by the current process towards statehood.
To support genuine self-government within these territories, the Commonwealth parliament must enable the ACT and Northern Territory legislative assemblies to be independent, responsible and accountable to their citizens. This means not being subject to the whim of a minister, and this bill will achieve that objective.
The opposition has argued that the bill should not proceed. The opposition, while expressing its in-principle support for greater legislative independence for Australia's self-governing territories, has argued that the bill should not proceed and a more systematic and comprehensive approach would be preferred.
I want to be clear about the government's position. The issues raised in the Senate amendments moved by the opposition were canvassed in the inquiry to the bill. The inquiry concluded that the benefits of the bill in enhancing democracy in the ACT and Northern Territory outweigh any potential disadvantages that may flow from its application. The passage of the bill would provide just recognition of the maturity and capacity that the ACT and Northern Territory legislative assemblies have demonstrated since they attained self-government.
The Australian government has already indicated to the ACT government that it would welcome a review of the ACT (Self-Government) Act, but such a review should be driven by the ACT government and its citizens. The Australian government would welcome considering the outcomes of such a review. The timing of a comprehensive review should not delay the implementation of the practical, democratic benefits provided by this bill. I note also that both the ACT Chief Minister and the Northern Territory Chief Minister are on the record supporting the bill.
Experts such as Associate Professor Tom Faunce from the Australian National University in their submissions to the Senate inquiry advocated passage of the bill. In his submission he argued:
Repealing section 35 of the ACT ( Self-Government ) Act is a measure that can and should be taken now … 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.
Professor Cheryl Saunders from Melbourne Law School supported the bill—and I quote her saying:
… as an overdue change to correct what has become an anachronism in the Australian system of government.
I am aware that the opposition has moved two lots of amendments—some were circulated earlier—to the effect that the ACT and Northern Territory legislative assemblies may not enact a law that is inconsistent with the Marriage Act. I have already addressed that point but these amendments replicate amendments in the Senate. They were moved then by Senator Brandis. We did not support them then; we are not supporting them now. The opposition amendments in the Senate and in here are absolutely unnecessary. The legal advice from the Attorney-General is clear on the issue. The government's clear legal advice is that the amendments are unnecessary. It is already the case that any territory law inconsistent with the Commonwealth law on marriage, just as with any other subject, would be invalid. The Commonwealth parliament has the broadest possible power under section 122 of the Constitution to make laws for the government of any territory. In other words, this parliament could use that power to override any territory law, even a territory law that is not currently inconsistent. It could do that by making a new law, but that is a decision the parliament would have to make; it should not be done through the whim of a ministerial pen.
The territories cannot make laws that are inconsistent with the Commonwealth Marriage Act or any other Commonwealth law, and the position will not change if the bill is passed. The repeal of section 35 of the Australian Capital Territory (Self-Government) Act and section 9 of the Northern Territory (Self-Government) Act will not affect the Commonwealth parliament's power to enact legislation which is inconsistent with ACT or Northern Territory legislation.
I note also that the member for Solomon has moved another amendment. It had not been circulated before. This is interesting because at the last minute she tables an amendment while at the same time arguing that there should be systematic examination of the bill. If there is to be systematic examination, one would have thought these amendments could have been circulated somewhat earlier. One can only conclude that this is another attempt to stall. You say as an opposition that you are not playing around, but all of your actions and all of the amendments say that you are. The bill as it stands does not change constitutional arrangements. The Senate committee recommended this bill pass the parliament. I would be interested to know, given the views of the Territorians that the member for Solomon claims to talk about, how she is going to explain to her constituents in the Territory that she has ignored the wishes of their legislature and does not recognise properly the legislative assembly's ability to be overridden only by an act of the parliament. (Time expired)
I rise to speak in favour of the Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Bill 2011. When Canberra turns on its charm and offers that perfect day when the sun shines, the water glistens and the temperature is not too cold or too hot, it is easy to see how this region charmed the federal parliamentarians who visited in 1906 and 1907 on their tour of potential sites for the new nation's capital. Federal politician King O'Malley once said of the decision about where to site the nation's capital:
I want us to have a climate where men can hope. We cannot have hope in hot countries.
The saying goes that success comes from a lot of hard work and a bit of luck. Reflecting on the cities which could have been the seat of government, Canberra had plenty of luck. At the outset, the city was not the preferred location of either the media or the politicians. But for a perfect Canberra day on 13 August 1906, and again on 23 August 1907, the parochial interests of a Premier and a change of heart and vote by a Victorian senator, our nation's capital could have been somewhere entirely different.
On the banks of the Snowy River, 50 kilometres south-west of Cooma, lies the town of Dalgety. With one pub and 75 residents, you would hardly know the town was named in the 1904 Seat of Government Act as the location of the new federal parliament. But state and local interests collided with the desires of national leaders. Dalgety was located in the electorate of the then Minister for Home Affairs, Sir William Lyne. Keeping with the traditions of Macquarie Street, New South Wales Premier Joseph Carruthers refused to cede the town to the federal government, believing Dalgety to be too close to Victoria. Carruthers valiantly declared Tumut, Yass or Lyndhurst as the only sites for the nation's capital. By coincidence, all three towns happen to be in the Premier's electorate.
Dalgety remained the favourite of the Victorian and Western Australian senators, who made numerous attempts to have it reinstated as the site for the capital, but Carruthers's determination to act in the interests of New South Wales was such that he threatened to take the federal government to the new High Court for trespass should any survey pegs be driven into the ground. Eventually, the Dalgety backers gave up and, by 1907, there was a growing consensus that the site of the capital should be somewhere in the triangle formed between the towns of Goulburn, Yass and Queanbeyan.
With the trout-fishing contingent now having shifted their support to Tumut, the decision came down to Canberra versus Tumut. In December 1907, the House of Representatives voted 39 to 33 in favour of Canberra, but in the Senate Canberra and Tumut were tied 18 votes apiece. Canberra owes its status to a Melburnian who believed the future lay in agriculture and mining. Anti-socialist Senator James McColl changed his vote and backed Canberra. Then, like now, the numbers in Australian politics were finely balanced, but Andrew Fisher showed us that a close vote does not stop you getting things done. A decision was finally made to select Canberra as the nation's capital.
Besides its unique history, Canberra is so much more than our nation's capital. It is home to over 350,000 Australians. It is a place of cultural icons and historic events. It is a place where Canberrans exercise their right to elect their own representatives to govern and legislate in their interests. But Canberrans do not enjoy the legislative freedoms of their state counterparts. In March of this year, I joined my parliamentary colleague Gai Brodtmann, the member for Canberra, in taking the unusual step of making a submission to the Senate's Legal and Constitutional Affairs Legislation Committee inquiry into the Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Commonwealth) Bill 2010. We argued that section 35 of the Australian Capital Territory (Self-Government) Act affords the Governor-General the power to disallow an enactment of the ACT Legislative Assembly by legislative instrument within six months after it is made. We argued that negatively impacts on the independence of the ACT Legislative Assembly and that the ability of the Commonwealth executive with the stroke of a pen to overturn enactments of the Legislative Assembly is a liability state parliaments are not subject to. The repeal of section 35 of the ACT (Self-Government) Act will ensure this by removing the power of the executive to intervene without the agreement of this parliament.
Territorians are not asking for special treatment; they are just asking for a fair go. Of course, this bill does not affect the constitutional right of this parliament to make laws for the territories; it only seeks to ensure that any strike down is done by parliament, not by a minister alone. I agree with the majority report of the Senate Legal and Constitutional Affairs Legislation Committee: it is a matter of principle; the power of the federal executive to override legislation in the ACT is inappropriate and unwarranted. As the minister has noted, many experts and the Northern Territory and the ACT governments support the bill. It is strange that the member for Solomon and Senator Gary Humphries, a former ACT Chief Minister, do not.
As things currently stand, the Governor-General, acting on the advice of the Commonwealth, can disallow or recommend amendment to territory legislation to provide the executive government with the ability to protect its interests in the territories. This bill seeks to remove the Governor-General's power to disallow or recommend amendments to laws made by territories under their self-government acts. The effect of this would be to remove the Commonwealth executive's ability to override legislation passed by the territories' legislative assemblies.
Equally importantly, let us look at what this bill does not do. Under this bill the Commonwealth still retains the ability to override legislation passed by the legislative assemblies of self-governed territories through the plenary power of section 122 of the Constitution. That section commences: 'The parliament may make laws for the government of any territory'. Repealing section 35 and section 9 of the respective ACT and Northern Territory self-government acts does not affect the constitutional power of the Commonwealth. What it does do is raise the bar on any overriding of a territory law. It must be done by the parliament, with every parliamentarian having the opportunity to speak in that debate.
Canberra residents may have been demanding a greater say in their destiny, but they rejected attempts by the Federal Government to have them take control of their own affairs through self-government. They appeared reluctant to accept the responsibility of governing themselves, or perhaps, the increased costs which they feared would inevitably follow the handover of power from the Federal Government to a local body.
Despite such views, many Canberrans still wanted self-government and under the Whitlam government a legislative assembly was formed in 1974. However, the Commonwealth tended to override or ignore its wishes. In 1975 a supporter of self-government for the ACT, Tony Staley, accepted the post of Minister for the Capital Territory. However, the model he proposed found opposition, in part because it failed to address territory funding arrangements.
With the Northern Territory achieving self-government in 1978, it was suggested that self-government must also be appropriate for the ACT. After all, the ACT had a larger population and was growing faster. The next person to run the ministry, Robert Ellicott, held a referendum on the issue of self-government in 1978. The referendum provided the residents of the territory with three options: (1) that self-government be granted to the territory by delegating functions to a locally elected legislative body; (2) that a locally elected legislative body be established in the territory with local government type legislative and executive functions; or (3) that the present arrangements for governing the territory should continue for the time being. The referendum failed but it did not end the debate.
There were pressures that still continued to push the ACT to self-government: the national consistency of government, the re-enfranchisement of the community, and financial pressures. It was argued that self-government would allow the ACT to be placed on the same financial footing as other states and as the Northern Territory. Just prior to self-government, Bill Harris, the head of the ACT administration, said this was the fundamental reason for the eventual realisation of self-government in the Territory.
In 1988, the minister for the ACT, Gary Punch, received a report recommending the abolition of the National Capital Development Commission and the formation of a locally elected government. He recommended the Hawke government accept the report's findings. Clyde Holding, Minister for Immigration, Local Government and Ethnic Affairs, introduced legislation to grant self-government to the territory in October 1988. On 6 December 1988, the ACT was granted full self-government with the passage of the ACT (Self-Government) Act. The first ACT election was held three months later, on 4 March 1989. Despite the initial resistance to self-government, despite the bumpy path travelled to get there, after 23 years ACT self-government is well established and has proven successful. As the minister has pointed out, the ACT parliament has shown itself to be a mature debating chamber, the equal of any state or territory legislature around the country. What was the baby of 1988 is now an adult, holding its place confidently in the world. It is a government that makes its own decisions responsibly and is held accountable for them.
I would like to pay tribute to Jon Stanhope, former Chief Minister of the ACT, and Katy Gallagher, who has stepped confidently into Jon's shoes, continuing practices such as Chief Minister Talkback, a forum that allows Canberrans to speak directly to their Chief Minister.
The majority report of the committee was correct in supporting the objectives of the bill: to remove the power of the executive to override legislation with the stroke of a ministerial pen and replace it with a parliamentary process, more in keeping with the democratic practices of today.
Back in 1988, when I was a 16-year-old work experience kid, I worked in the office of John Langmore, the then federal member for Fraser. I remember John Langmore telling me the story of serving as the member for Fraser in the early 1980s, in the days before self-government. One day a constituent phoned him at home at 5 am. The constituent said to him, 'Mate, the garbos have woken me up with the banging of my bins outside, and I figure that if I'm awake the member for Fraser should be awake as well.' The ACT has come a long way since then. As the committee concluded, the benefits of the disallowance bill—enhancing democracy in the ACT and in the Northern Territory—outweigh any disadvantages. This is a step in the right direction towards giving the people of the ACT—and Fraser—the same legislative freedoms and rights as their state counterparts. Territorians deserve accountable, equitable and transparent government. They deserve to know that their laws will not be struck down with the stroke of a ministerial pen. I commend the bill to the House.
I want to make some brief comments in conclusion. I thank the members who have contributed to the debate, particularly those representing electorates in the Australian Capital Territory, who have accurately understood what this bill is about and what it is not about. This bill will not remove the power of the parliament to have the constitutional oversight, provided for in the Constitution, of what happens in the territories. But what it will do, as the member for Fraser said, is make it impossible for the government, through its executive, to simply override with the stroke of a pen a decision and a law that has been made after due deliberation by mature assemblies in this country.
There have been some rather odd contributions to the debate, including a suggestion that there has been no consultation on this and it is not what people in the territories want. Well, perhaps the member who made that contribution overlooked the fact that the chief ministers of both the ACT and the Northern Territory have thrown their support behind this bill.
I was disappointed to hear the contribution from the member for Solomon. The member for Solomon has been a fierce advocate for the rights of the people of the Northern Territory—so much so that, when it came to the debate about the siting of Australia's first nuclear waste dump, she came and sat with us when we sought to oppose the move by the federal minister in this place to impose a nuclear waste dump on the Northern Territory against the wishes of Territorians. At the time, the member for Solomon made the point that the citizens of the Northern Territory should not have something like that imposed on them if they did not want it simply because they are a territory. And we agreed. And if one is to be consistent with that position then one must support this bill. The amendment moved will not have our support because it would have the effect of defeating the bill and pushing back the very cause that the member for Solomon is very powerfully advocating for.
But perhaps the most egregious contribution to the debate has been the suggestion that this is some sort of recent invention by the Greens. If you look at the parliamentary record, you will see that for as long as the Greens, and in particular, Senator Bob Brown, have been in this place, this has been a cause that we have pursued passionately. It came, firstly, in the context of the bill from the member for Menzies, Kevin Andrews. At that stage, as anyone would know—and you can check the record if you want confirmation of it—there was a vigorous defence of the right of the territories to legislate in accordance with what they consider to be in the interests of peace, order and good governance in their territories. That is the position we Greens have held steadfastly since we have been here, and we are now proudly in a position where we can bring legislation into both chambers and, the next couple of debate and votes willing, have it passed through the parliament this year. We are not going to support the detailed amendments that are put forward because they cut across the basic principle of self-governance. What this bill will do is move territorians a step closer to being on an equal footing with their compatriots around the country. It will retain the right of this parliament to have oversight of the territories and it will move them a step closer to self-governance. For that reason, it ought to be supported by all members in this place.