Gary Humphries (ACT, Liberal Party) Share this | Hansard source

I want to contribute to this debate by making the observation that the appropriate approach to issues like these is to consider whether one believes in an essentialist approach to the exercise of power in a democratic society or whether one takes a federalist approach, which accepts and supports the idea that there should be a range of centres of power in a federal system.

I unashamedly say to this chamber that I am a federalist. I am a great believer in a system that engineers a range of sources of authority and power within a democratic society, so that it is rarely or never the case that any one person or group or even government is necessarily able to exercise complete control and say over the lives and fortunes of the citizens of a particular community or nation.

In saying that I recognise what many others in this place have recognised: there is great genius in the Australian system of government, which despite many shortcomings and not being without the potential to be reformed in some way does nonetheless provide for there being two levels of government, with powers that are protected in the federal Constitution. Those levels of government have the capacity to stand their ground against any forbearance or paramount control by the other level that might override the wishes of a community that has elected that particular first form of government.

I think I am able to say in this debate that I am a federalist and I do generally support the exercise of power by state and territory governments, properly elected and properly mandated to reflect the wishes of their citizens against the wishes of even a federal government if that breaches the understood concept of federalism in Australia. I think I am able to make those comments with somewhat more of a history of support for federalism than some of those people today who will be supporting the Australian Capital Territory (Self-Government) Amendment (Disallowance Power of the Commonwealth) Bill 2006, introduced by Senator Brown.

I dare say that there are some members opposite—on the Labor benches, for example—who will be supporting this bill even though, presumably, they did not hesitate to support the legislation back in 1997 or 1998 that overrode the Northern Territory’s and, indeed, the ACT’s power to legislate with respect to euthanasia. I do not support euthanasia, but I strongly oppose the exercise of that power because I believe in the right of territories to legislate in those areas. I wonder whether some of those on the other side of the chamber who will be voting for this legislation today might ask themselves whether those positions are particularly consistent.

I also supported the right of the Tasmanian government back in 1983 to make decisions about its hydro-electric needs. I know that Senator Brown, although not a member of parliament at that stage—at least not a member of this parliament—certainly did not support that particular exercise of state power. So there are circumstances in which all of us are prepared to discard this idea of balance between the two levels of government and let one level of government step into an area which we might regard as being the preserve or the prerogative of another level of government in Australia—if the circumstances are right. None of us are holier than thou in that respect in a debate like this.

If we are honest about it, we will admit that we all understand there are circumstances where limits need to be placed on the bald concept that here is an area where a state government has the right to make decisions and here is an area where the federal parliament has the right to make decisions and there is never any grey area, never any overlap, never any question where the simple rules need to be reconsidered, modified or bent a little to accommodate the needs of the community or what is right in particular circumstances.

The fact is that there are limits on those federal concepts. Those limits are particularly relevant in the case of both the ACT and, to some extent, the Northern Territory. A very good example of the limits of that concept was provided only recently when it became obvious that the ACT government was at least contemplating legislating with respect to antiterrorist measures in a way which was inconsistent with the position of every other Australian state and the Northern Territory. That was a very good example of where, in the national interest, it was appropriate for the federal government to consider the exercise of a power to override the Australian Capital Territory’s law-making capacity with respect to—and, of course, this is the classic definition—peace, order and good government.

You might well argue that terrorist legislation is about peace and order, so you might argue that the ACT had the right to legislate in those areas. But, no, it was widely accepted in the community—and I would not be surprised if it was widely accepted in this chamber—that there is a prima facie right, an a priori right, by the federal parliament to make sure that Australia has consistent antiterrorism legislation. These principles might be baldly stated as being absolutes, but in fact they need to be carefully considered in each particular context in which they arise.

Another limitation that arises from that model of federalism, particularly as it applies to the Australian Capital Territory, is that the ACT and the federal government share the one home. The federal government’s headquarters, its parliament and its federal agencies are largely based in the national capital, and the ACT government, of course, administers the municipal and state-level services provided to the ACT community. So that need to ensure that federal interests are not compromised by the working of ACT self-government is a particular consideration that applies in the case of the ACT—perhaps not so strongly in the case of the Northern Territory, but it does clearly apply here.

I acknowledge that the ACT and the Northern Territory are in a slightly different constitutional position to the states. The rights of the states to exercise certain powers are enshrined in the federal Constitution, whereas the rights of territories are defined under legislation which itself is passed by the federal parliament. But I would say that, generally speaking, we should move to a situation where we equate as much as possible the right of territory governments to legislate within the areas assigned to them under that federal legislation as freely as is possible within the values, the traditions and the constitutional conventions that apply in Australian political life to state governments.

Having stated that principle and having stated that sometimes we need to compromise on it, I state very clearly my view that I think in this particular case Senator Brown’s legislation takes too far the principle that the territory government ought to exercise this power untrammelled by intervention from the federal government in this way—that is, that, as a reaction to the case of the federal government overriding the ACT with respect to civil unions legislation, it is not appropriate to throw the baby out with the bathwater and exclude any circumstances where the executive can exercise such a power against the ACT government.

I do not think that is sustainable. I do not think that position is consistent with a balanced view of what the federal government and/or the federal parliament may need to do with respect to administration of this territory and the protection, in its role in the federal territory, of the national interest. I make it clear that a key issue here is that the federal executive’s power to make a regulation with respect to acts of the ACT parliament under section 35 of the Australian Capital Territory (Self-Government) Act 1988 does not exclude or prevent parliamentary involvement in that decision. It does not prevent either house of this parliament from debating, and if necessary overturning, the exercise of that power by the federal executive.

Indeed, after the legislation of the ACT was overridden by an executive instrument of the Governor-General after taking advice from the executive, there was a motion of disallowance moved on the floor of the Senate. The motion attracted considerable interest. I am on the record as having supported that motion of disallowance. But the fact remains that parliament had its say. It was able to debate the issue. Had the numbers been different, it could have overturned the decision made by the executive.

The issue that Senator Brown is raising here is not so much about whether there is a role for parliament in these decisions but at what point in the process the role falls. I would not for one instance suggest that parliament should not have the right to consider this issue and decide it did not agree with an exercise of power, but I am not sure I can agree with Senator Brown in saying that in all circumstances the executive should not be able to act, particularly if there was a matter of national interest at stake, because we do not exclude the role of parliament in that process.

Senator Brown made reference to the dams case in 1983 and pointed out that the High Court upheld the power of the federal government to intervene in Tasmania’s affairs and overturn its scheme to dam the Franklin River. That is the case, but it is also the case that constitutionally—and there is no doubt here—the federal government can exercise power over the workings of the ACT Legislative Assembly on such matters.