Kate Lundy (ACT, Australian Labor Party, Shadow Minister for Sport and Recreation) Share this | Hansard source

I welcome the Australian Capital Territory (Self-Government) Amendment (Disallowance Power of the Commonwealth) Bill 2006, the amendment to the Australian Capital Territory (Self-Government) Act 1988 that is being proposed here today. As you have heard from my colleague Senator Carr, Labor will be supporting it. This amendment would remove the Governor-General’s power under the ACT (Self-Government) Act to disallow ACT laws.

I recognise the Commonwealth parliament’s power to make laws for the Australian territories pursuant to section 52 and section 122 of the Constitution. However, I seriously challenge the legitimacy of a law that allows for parliament or the executive to override the laws of a democratically elected territory government. This proposed amendment would abolish the power of the Commonwealth to disallow any act of the ACT government, thus ending this unsatisfactory and undemocratic state of affairs.

Section 35 of the Australian Capital Territory (Self-Government Act) enables the Commonwealth to disallow otherwise legitimate ACT laws. Section 35 of this act has only ever been used once. It was used in June this year to overturn ACT laws relating to civil unions. The government’s use of section 35 of the self-government act was unprecedented and an unwarranted interference in the governance of the ACT, and it should never be allowed to happen again. This bill, if successful, will make sure it will not.

The ACT government was duly elected by the people of the ACT. The elected government had promised the ACT community that it would introduce laws recognising same-sex relationships if elected and sought to deliver on that promise. Chief Minister Jon Stanhope led the Labor team into majority government in 2004 for the first time since self-government, which was quite an achievement, and one of the Labor commitments, as I said, was to introduce the law that recognised same-sex relationships.

Under public pressure as to his stance on this issue, ACT Liberal Senator Humphries admitted to the Canberra Times on Friday, 16 June 2006 that:

I acknowledge that Jon Stanhope won a clear majority in the 2004 election ... I also acknowledge that Jon Stanhope went to the election with an explicit promise to legislate to recognise in law relationships between people of the same sex and to remove legal discrimination against gay and lesbian Territorians.

Senator Humphries then continued on to say that the obvious ‘democratic process’ would be to allow the ACT government to deliver on its election promise—a democratic process his Liberal colleagues in the Howard government clearly failed to respect and follow. Consistent with its election commitment, the ACT government held extensive consultations on how to proceed with introducing laws to recognise same-sex relationships. The outcome of these consultations was the Civil Unions Bill, a bill that enjoyed extensive community support.

The Howard government’s use of section 35 of the ACT (Self-Government) Act to overturn the Civil Unions Act was a triumph of the Howard government’s arrogant disregard for established democratic processes. They did it because they could. They used their majority plus the Family First senator, which meant that the vote of Senator Humphries was unable to change the outcome—and I do acknowledge that Senator Humphries crossed the floor on that occasion.

The Commonwealth executive—in this case, the Howard cabinet or, for that matter, the Governor-General—cannot pretend to represent the views of the people of the Australian Capital Territory. They have no right to use this power to substitute their views for the elected representatives of the people of the Territory. It was particularly offensive that the Howard government used the representative of the British monarchy in Australia to do the overriding of ACT law. It harked back to colonial times when an autocratic approach was used to govern allegedly wayward new colonies. It was highly condescending and completely inappropriate. It was also a triumph for the Prime Minister’s offensive and extreme ideology. I make the critically important point that the ACT Civil Unions Act did not infringe on the Commonwealth’s exclusive legislative rights over marriage, nor did the ACT bill conflict with existing Commonwealth legislation relating to marriage.

Many people will remember that the Prime Minister was desperate to say this was not so. He repeatedly asserted that there was some crossover or conflict but, when pushed on this point, he could produce no evidence because, in fact, none existed. It was, in my opinion, homophobia, front and centre. I will continue to support the ACT government’s attempt to formally recognise same-sex relationships in the ACT. It should have happened then. It should still be in place. It is important in principle and in practical application. It is very important to the community as a whole.

The ACT Civil Unions Act intended to ensure that everyone received equal treatment under ACT law. The act would have allowed a couple to establish a domestic partnership by making a formal declaration of their intention to do so. The act was non-discriminatory in that anybody could have accessed a civil union in the ACT regardless of gender. In contrast, the federal government’s, the Howard government’s, refusal to formally recognise same-sex couples is blatantly discriminatory.

The ACT Civil Unions Act clearly intended to stamp out the discriminatory treatment of same-sex couples under ACT law, and was entirely consistent with the obligations under the ACT Human Rights Act. The ACT Civil Unions Bill 2006 showed the ACT Labor government’s commitment to ensuring that everyone has the respect and dignity that they are entitled to and deserve—that is, a commitment to protecting everyone’s right to participate in society and to receive the full protection of the law regardless of their gender or chosen partner. All these aspirations have been undermined by the Howard government.

I would now like to make some comments with respect to the treatment of the ACT as a territory under the Constitution compared with the states. If the ACT were a state rather than a territory, the Commonwealth government could not have overturned this important new law, as is evident by the Tasmanian Relationship Act. The fact that this could not have happened to a state is further evidence that the government was ideologically driven to overturn this important and practical legislation rather than letting it stay in place.

Perhaps one of the most disappointing aspects of this matter is the Howard government’s complete unwillingness to talk with the ACT government. I am disappointed that the Howard government refused to engage with ACT representatives and find a constructive solution. They could have discussed what they found so offensive about the act. They could have discussed how the ACT law fitted in with Commonwealth laws and perhaps amendments could have been made so that the majority of the bill could have come into effect

Finally, I formally call on my ACT Senate colleague, Senator Humphries, to support this amendment bill. I heard his contribution in the chamber today and I was very interested to hear his opinion on this important amendment. I would like to remind the Senate that Senator Humphries did cross the floor in June to vote for the disallowance motion that would have allowed the territory law to prevail. I would also like to remind the Senate of Senator Humphries’s comments to the Canberra Times on Friday, 16 June, 2006:

Here the democratic process—which of course was conferred on the ACT 17 years ago by this Parliament—provides a clear formula for what happens next: the ACT Government is entitled to pass laws, in an area of its legislative competence, to effect an explicit promise made to the ACT community.

Senator Humphries says he is a federalist. He waxes lyrical about its virtues and the limitations he thinks appropriate on a centralist approach to government, but the bottom line is that his support for federalism stops short of curtailing the long arm of centralism being used by his government colleagues to deny democracy in the ACT. He now extols the virtues of what he calls ‘necessary limits.’ Senator Humphries even resorted to the example about the antiterrorism legislation as an example where the ACT government ought not to be trusted and ought to be overridden—a double standard if ever I have seen one. A double standard that shows Senator Humphries is far less concerned with principle and far more concerned with the politics, in this case the politics of fear and the politics of the threat of terror attack as was espoused during that particular debate.

Finally, as I think several senators have acknowledged, Senator Humphries could easily resolve to support this bill and the federal parliament would always retain its capacity to legislate with respect to the territories as per the constitutional power. We all know that, so why does he squib on this bill? There is only one answer: he lacks principle on this matter.