Russell Trood (Queensland, Liberal Party) Share this | Hansard source

It is a delightful opportunity to be able to speak on this matter. Senator McGauran, my colleague from Victoria, has drawn attention to the lateness in this sitting period. It is late on Thursday afternoon. Any bill which says, in the explanatory notes, that it is ‘a bill for an act to abolish the power of the Commonwealth’s executive government to disallow any act of the Legislative Assembly of the Australian Capital Territory and for related purposes’ seems at least on the face of it to be a matter of some significance, some importance and in fact some might even say profound importance, since it would seem to touch the power of the Commonwealth in relation to one of its territories.

But I think we all know that this is a rather tawdry exercise by Senator Brown on behalf of the Greens. It is an exercise in trying to harvest populist votes from the good citizens of the Australian Capital Territory and to try to expand the Greens’ domain, if you will, in the territory. It is an effort to try to appeal to the people of the Australian Capital Territory on a matter which is hardly of core importance to the Greens. I have not had the opportunity to look at this in the time I have had available to prepare my remarks in this debate, but I would be very surprised if one of the core platforms of the Greens is that it wishes to extend democratic rights, as they might be described, for the good citizens of the Australian Capital Territory. Rather, this seems to me to be something of a spasm response to the Greens’ disappointment with the fact that the government earlier in the year made a regulation disallowing the legislation with respect to civil unions in the Australian Capital Territory.

In relation to that particular piece of legislation, the parliament took the view—and rightly, in my view—that marriage should not be redefined in the way in which the piece of legislation from the ACT legislature proposed. I still think that that was a correct decision. But that is the past, and I do not want to revisit that matter again this evening. There are other, and rather important, things to examine.

Indeed, there has been a great deal of fallout from that piece of legislation and it is manifest in the Australian Capital Territory (Self-Government) Amendment (Disallowance Power of the Commonwealth) Bill 2006, which is before the chamber this evening. It is a short bill. In fact, it is a disarmingly short bill with respect to the impact it may have on the constitutional arrangements of the Commonwealth. Essentially, it seeks to remove the Commonwealth’s power to override legislation in the ACT legislature. It is deceptive because we are engaged in a rather simple proposition here but, in my view, it seeks to unravel a very important—perhaps even profound—constitutional compact that exists between the Commonwealth and one of its component parts, which of course is the Australian Capital Territory.

In the time available to me, I want to take a little time of the Senate to explain, as I see it, the unravelling of this particular compact and what the consequences would be if this bill were to ever see the light of day—if it were ever to be passed by parliament—and I trust that will not come to pass. But, before I do that, I will just make a couple of quick observations about the bill. The first is, I think, a natural one and one made by other speakers in the debate, which is that the power we are talking about here is not one that is often used by the Commonwealth. In fact, one could say it is used sparingly. I have been in this place a relatively short period but, in the time I have been here, there has been only one occasion that I can recall when this particular power has been used. It is not as though this is something that the Commonwealth engages in every day of the week or every sitting session or on a particular, regular basis. It is a power which is used, and rightly so, infrequently when circumstances demand that it should be used. In that context, it is proposed that we should change a profound principle of constitutional practice for a power which is hardly ever used, and that does not seem to me to make a great deal of sense.

The second proposition I make is that the Australian Capital Territory legislature is of course a unicameral legislature. I come from Queensland, as you know, Mr Acting Deputy President, and Queensland has a single legislature. It is a unicameral legislature. The Legislative Council in Queensland was abolished in the early part of the 20th century, and I think citizens of Queensland have had cause to regret that abolition on numerous occasions since then. I am not an advocate of unicameral legislatures. They seem to me to be unsound, as a matter of constitutional principle and practice. I would hardly be someone who would be coming into this chamber to encourage the idea that yet another unicameral legislature should have the power to make decisions which would have ramifications way beyond what has been decided by the constitutional arrangements that currently exist.

The third proposition I make is a very simple one—and I think it has been made by some of my colleagues—which is: even if this bill were to be passed by some minor miracle of constitutional activity, it would have no effect because we would still be left with section 122 of the Constitution and the power that that gives the Commonwealth to make laws for the government of the territory. So we could engage in a long debate, we could spend hours of the parliament’s time trying to work our way through the elements of this particular piece of legislation and, in the end, it would come to nothing. It would all be nothing more than a great deal of constitutional hot air, because we would be back where we started. We would pass the bill and we would find ourselves confronted, as Senator Bob Brown must surely know, by the realities of section 122 of the Constitution, which of course gives that power to the Commonwealth. So, unless we were to change that particular clause in the Constitution, this bill would have absolutely no impact or import.

I will return to the matter of the constitutional design that I alluded to at the very start of my remarks. There are two clauses in the Constitution which are relevant to this particular matter. They have been cited by other senators in this debate. But they are important clauses, and I think it is important that one draws the parliament’s attention to them. The first clause is section 122 of the Constitution, which states:

The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth …

It then goes on to make some other remarks about various aspects of the government of territories. The second clause which is of particular relevance is section 52 of the Constitution. It reads:

The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to

(i.) The seat of government of the Commonwealth …

Here we have a very specific kind of constitutional design. We have an arrangement whereby the Constitution provides for the states to give up territories, should they voluntarily decide to do so, and in doing so the Constitution then gives power to the Commonwealth to make laws for ‘peace, order and good government’—a phrase that resonates in my own mind, from the days when I was at law school, and in the minds of most lawyers as one which relates to the exercise of Commonwealth power. Here we have a very specific and very clear arrangement on this particular matter and what is important is that the Australian Capital Territory is the Commonwealth’s seat of government.

Perhaps I can make, as an aside here, an observation which I think Senator Brown will no doubt find interesting about this matter, which is that the Constitution—and I give him the benefit of the doubt of being familiar with this particular provision—also gives power of representation in the federal parliament in relation to territories, and that particular right is contained within section 122 of the Constitution. And, of course, the Commonwealth has provided in relation to that particular power; it has provided the opportunity for two territories to have two senators sitting here and for members to take their places in the other place.

What is interesting about this particular power, what is, I think, noticeable about this power, in terms of comparative constitutional law, is that the United States, one of the great democracies on the planet and one often held up as being the exemplar of democracy, is a place where the territories do not have that right of representation in the federal parliament. So here we have, in relation to our own constitution, our own parliament, a right of representation for the territories. So they already have a particular democratic advantage, which is not given to people who reside in territories in the United States and in other places.

Let me return to my main theme, which is this compact that I alluded to. For a long period of time, the Commonwealth parliament was the parliament of the Australian Capital Territory. It made laws which were relevant to the people in the territory. It was the place where decisions were made about the direction and the future of the citizens of the capital territory and, for the most part, that was a reasonably happy arrangement.

Of course, it was decided in 1988 that this arrangement should be changed. The Hawke government obviously resolved that there should be a change in these matters and so we then had the Australian Capital Territory (Self-Government) Act, which provided for the folks of the Australian Capital Territory to have certain kinds of powers in relation to their own governance.

But this was a qualified self-government. These were not powers given to the Australian Capital Territory as being the same as the states’; these were not powers which were given to create sovereign states, of the nature of Queensland or Victoria or Tasmania or Western Australia or other states of the Commonwealth; these were essentially qualified powers. Very specifically, clearly, from the constitutional design, from the design of that particular act, they were qualified powers given to the territory legislature; essentially—and I do not mean to be ungenerous in making this remark—they were the kinds of powers that might be available to a local government, and I say this without wishing to offend the good citizens of the Australian Capital Territory.

And, of course, there was good reason for this. It was not just a coincidence that this occurred; it was not just a serendipitous use of powers; it was not just a casual part of a constitutional design. This particular decision, with regard to the powers of the ACT legislature—and this reflects the wider point that I was making earlier about the Commonwealth having the power to make legislation for the territories—was made in a purposeful way. It took a particular point of view. It was part of a specific intention.

The ACT is not just any territory of the Commonwealth. The Australian Capital Territory is not just any piece of geography on the Australian continent. It is the seat of the Australian government. It is the place from which the Commonwealth is governed and that gives it a unique quality. It gives it a unique character. And we know from the debates in relation to the formation of the Commonwealth, the constitutional debates of the 1890s, how fundamentally important this idea was to the founding fathers. We know, from reading the constitutional debates—with which, I am sure, Senator Brown is very familiar—how anxious they were to find a place somewhere between Sydney and Melbourne which could be appropriately identified as the seat of government.

Indeed, a specific provision was included in the Constitution on this particular issue. It is section 125 which alludes to this particular point, and section 125 says:

The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth ...

The point is that the seat of government ‘shall be vested in and belong to the Commonwealth’. So it is very clear from the constitutional design: this was not just, as I said, happenstance; it was not just serendipitous; this was a specific part of the constitutional design of the founding fathers—that they wanted a place of government and they wanted it to be a unique place in the context of the Commonwealth. And, in reflection of that particular proposition, they made Canberra the seat of government and they made specific provision for it.

The logical constitutional consequence of that view was that the Commonwealth should have power in relation to the seat of government, as provided for in section 52 of the Constitution, because it recognised the unique nature of the territory and the unique significance within the Commonwealth of this particular part of the country.

The 1988 act in a way compromises that idea. It compromises that unique constitutional situation. It allows the Australian Capital Territory legislature to make laws for its citizens on a wide range of issues, as we all know—on housing matters, transport matters, social security, parks and various other things. It has the right to do that, and I do not have any reason to quarrel with that. I think there is no reason on God’s earth why that opportunity should not be given to the local legislature.

Indeed, the citizens of Canberra have many privileges from living in this part of the Commonwealth. I think we would all agree that Canberra is a most charming city, a place of rural disposition and, perhaps, urban pretension on occasions. It is a wonderful place to live, a great place to bring up a family. I enjoyed living here for five years myself during my earlier years. Citizens of the Australian Capital Territory have the benefit of many privileges. They have access to all the great national institutions of the country, to all the great public buildings, of which Parliament House is but one. But one thing they do not have is legislative sovereignty over their affairs.

Senator Brown is clearly troubled by this—not substantively, but, as I said at the very beginning of my remarks, for what I regard as rather tawdry political purposes. He sees this—presumably the Greens see this—as a stain on the fabric of Australian democracy. I do not. I see this as one of the very few costs that the citizens of the Australian Capital Territory must bear for living in this very privileged part of the Commonwealth, the seat of government, the place identified within the Constitution as being specifically designed to create a unique environment for the national parliament and for the administration and governance of the Commonwealth. (Time expired)