Jeannie Ferris (SA, Liberal Party) Share this | Link to this | Hansard source

I present the seventh report of 2006 of the Selection of Bills Committee and move:

That the report be adopted.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I move:

At the end of the motion, add:

“and, in respect of the Australian Capital Territory (Self-Government) Amendment (Disallowance Power of the Commonwealth) Bill 2006, the bill be referred to the Legal and Constitutional Legislation Committee for inquiry and report by 10 October 2006”.

Acting Deputy President Crossin, you will see that the committee did look at this referral but was unable to make a decision. The bill that is the subject of this amendment is a very important one. In effect, it takes away the authority of the legislature. Currently, the Howard government, in counsel, can override laws made by the elected government of the Australian Capital Territory. The bill would, of course, leave that power available to the Commonwealth parliament. It is an important piece of legislation and it ought to be before the Senate Legal and Constitutional Legislation Committee. It ought to be there, amongst other reasons, for there to be public input before the Senate considers the bill.

It is a very important case. Here is a piece of legislation which ought to and must have public input. It is a constitutional matter. It involves the balance of powers between the elected government of the Australian Capital Territory and the elected government of the Commonwealth of Australia. The contention in the legislation brought forward by the Greens is that only the parliament should override the Australian Capital Territory when its legislature makes laws—that that should not be a power held by the government of the day, the cabinet of the day, the Prime Minister of the day, the minister of the day; it should be a matter for parliament. It is a very serious matter when the Commonwealth government moves to override legislation which has been duly passed by another elected parliament in Australia. It should not be something left to just the government; it should be something that has to come before both houses of this parliament.

The committee ought to have made the decision to put this legislation before a proper committee for inquiry. You will remember that, quite recently, the Commonwealth moved to override the legislature on the business of same-sex unions and the laws that the ACT brought forward. There have been a number of other episodes where that has happened. On that occasion, it came before the parliament—it must come before the parliament—and we should make it clear that it can be only the parliament of Australia that can take such a serious move. I do not know what debate took place in the committee and I do not know what the vote in that committee was, but, quite properly, this matter is now before the whole of the Senate. I think it is a pure and good process, an essential process, that this Senate votes in a situation where a committee have been unable to make up their minds on a matter.

I am proposing, of course, that the government, the opposition and the other parties should join the Greens to ensure that this important legislation goes before the Senate Legal and Constitutional Legislation Committee for consideration. We are not making a judgement on the legislation, as you will understand, Acting Deputy President; we are simply saying: ‘Let’s have this legislation put before a committee for due consideration and to report back to the Senate. Let the people of the ACT and, indeed, the people of the Commonwealth of this great country of ours exercise their right to have a say. Let us be informed before we consider this piece of legislation.’ It is my intention to ensure that the legislation is considered before the end of this year. I appeal to the opposition and the government to support this amendment so that the committee can look at the bill.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

From Labor’s perspective, I say at the outset that we make no comment with respect to the content of the bill itself. That is a matter for Senator Brown. But, in terms of the process, we do support that the matter should be referred to a committee. Clearly, before this government took control of the Senate, these matters would have been, by agreement, referred to a committee for examination, but, since this government has gained the majority, it is now exercising—arrogantly, may I say—its authority to deny references to committees. Even with respect to this matter, Labor would have liked the opportunity to hear from the various interested parties and allow them to participate in the committee process.

As to the final outcome of a committee, sometimes we do not know where they might go. That is the purpose of a committee: to actually hold an inquiry and allow public input. But this government does not want public input into committees. This government does not want references to committees. In fact, this government not only denies references to committees—and it has a record in the last 12 months of denying more references than it allowed—but also has a record of foreshortening committee inquiries to ensure that proper scrutiny cannot be had.

This government needs to be held to account. Regarding the committee process, it should have agreed to allow this matter to go to the committee for examination and report, but the government is now exercising its might rather than its right and says no. There are other references that will come forward. Labor will bring forward other references either this week or next week, and again this government, I suspect, will take the same view and deny the Senate the ability to inquire into matters of importance—matters that should be looked into. Senators have a right to be able to bring forward reasonable references. This is not a reference in respect of a wide-ranging matter; it is a reference in relation to a private member’s bill. We have had references before that allowed committees to examine private member’s bills in this way. I am waiting for a response from the government as to why it has denied this reference in this way.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I am waiting for a response as well. The Democrats support this reference, not because we do or do not support the legislation but because we operate on the principle that, frankly, if any senator wants to refer legislation to a committee then, unless there is an extremely good reason not to, they should be able to. My understanding, going back quite a long way now, is that that has been the general convention. If there is a clear reason, like it has already been referred once before or it has already been passed through the chamber, then you do not refer it, but otherwise you do. I should emphasise that this is one of those practices which is very important, because it is a mechanism that ensures that the whole place does not become just a number-crunching tyranny of the majority. It is one of those circumstances where an individual can make a request. I am sure it has just been at the request of an individual senator that we have in the past sent legislation to a committee, including, sometimes, private senator’s bills.

To start putting in place a practice of refusing reasonable requests for legislation to be referred to a committee is, firstly, quite a dangerous precedent, in my view, and, secondly, yet another mechanism, and another example, of the Senate being slowly strangled. If any alternative views, any variances of opinion or, frankly, any different ideas are put forward that do not come from the government side, they are just dismissed as being of no significance at all. I think that is a very dangerous practice and it is a very dangerous direction that we are going in. Of course this is not the first example of it. It is just the latest example in what is becoming a very long list of treating the Senate with contempt, treating senators with contempt and treating anybody out in the wider community who is not part of the government with contempt.

It is also an unfortunate precedent. Of course, politics being politics—and I for one would love it to change dramatically in some of its fundamental aspects, but I do not hold out a lot of hope that that is going to happen quickly—the day will come when the current mob will not be in government and the other mob will be, and they will point to things like this and say, ‘You’ve done it; it’s now established practice,’ and everything moves one little notch lower. That is what we are doing here on a whole range of things: we are moving democracy down one little notch each time. Each notch lower that things are moved to, the harder it is to get them back up again and the more difficult things are to reverse. This is another example of that, and I think it is a very unfortunate example—and completely unnecessary.

What possible damage and harm could it do to the government to allow this sort of issue to be examined? We are supposed to be rethinking Federation at the moment. We are supposed to be rethinking the whole power structure between the states and the federal government. The powers and the role of the Australian Capital Territory and how it relates to the federal government are also important issues. Let us start looking at these things. Just because the bill itself is not going to pass does not mean that it is futile to examine the issues it raises. All these things contribute to the public debate—or they would, except for the actions of the government, which are basically to try and minimise public debate through the parliamentary arena, unless it is an area that they control.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I think enough of the Senate’s time has been wasted this afternoon by the spurious censure motion against the Minister for the Environment and Heritage, so allow me to be brief but also to inject some reality and fact, as opposed to the hyperbole we have just heard. The simple fact is that the Australian people, in voting for the Constitution, clothed the Commonwealth with a power to make laws in relation to the territories. I invite honourable senators to check out section 122 of the Constitution. Following on from that, the Australian Capital Territory (Self-Government) Act 1988, the self-government act, entrenches the Commonwealth’s constitutional power to disallow ACT law through the Governor-General.

I might just ask, rhetorically: who was in power in 1988? I think it was Labor legislation. The Labor Party itself thought it appropriate that laws made by the ACT should be disallowable through the Governor-General. We have the situation once again where the Labor Party—for opposition’s sake; I do not know why—is willing to do a backflip on its previous principles and is willing to engage in what would be quite a fatuous discussion and investigation. The self-government act provides a simpler method of removing a law than the method suggested by the Greens which would require the making of other laws to override an unacceptable law. What currently exists is that the—

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

You’re talking to the content.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Senator Ludwig, I listened to your contribution in silence. I would invite you to listen to mine in silence as well. The simple fact is that the parliament still has a say in relation to these matters by virtue of a disallowance motion. So if the parliament is of the view that the decision of the Governor-General, in overriding an ACT law, happens to be wrong in principle, or whatever, it is open to any senator to move a motion of disallowance and have it debated in the Senate. Indeed, that is what excited the interest of the Australian Greens with regard to the civil unions legislation in the ACT. We actually debated it in the Senate, and as representatives of the Australian people we said, ‘We happen to agree with the government’s decision in overriding that legislation.’ The parliament and every single senator in this place got a vote on that very issue.

So let us not have any nonsense or this hyperbole that somehow we are denying the democratic rights of this parliament to have a say and a vote. The structure that is in place, starting with section 122 of the Constitution, which the Australian people voted for, gives us the power. Then there is the legislation that was passed here about 20 years ago under a Labor government. It has been fully accepted until now, when we happen to have debated it and dealt with it in relation to civil unions. It has excited the attention of the Greens and others. We are of the view that there is an appropriate mechanism here and that further consideration of Senator Brown’s amendment is simply not warranted. It is a question of priorities. What should the Senate be spending its time on? What should the Senate committees be spending their time on? Senator Brown is undoubtedly looking to develop a mechanism whereby the overriding of the ACT civil unions legislation can somehow be undone. We as a government are very firm in our view and stance on marriage and our position is clear. The great thing about Australian democracy is that people will be able to cast a vote on these matters at the next election.

Question put:

That the amendment (Senator Bob Brown’s) be agreed to.

Jeannie Ferris (SA, Liberal Party) Share this | Link to this | Hansard source

I seek leave to have the report incorporated in Hansard.

Leave granted.

The report read as follows

SELECTION OF BILLS COMMITTEE

REPORT NO. 7 OF 2006

(1)

The committee met in private session on Tuesday, 8 August 2006 at 4.18 pm.

(2)

The committee resolved to recommend—That the Migration Amendment (Visa Integrity) Bill 2006 be referred immediately to the Legal and Constitutional Legislation Committee for inquiry and report by 11 September 2006 (see appendix 1 for a statement of reasons for referral).

(3)

The committee resolved to recommend—That the following bills not be referred to committees:

• Protecting Children from Junk Food Advertising Bill 2006
• Protection of the Sea (Harmful Anti-fouling Systems) Bill 2006
• Migration Legislation Amendment (Temporary Protection Visas Repeal) Bill 2006
• Privacy (Extension to Political Acts and Practices) Amendment Bill 2006
• Privacy Legislation Amendment Bill 2006.

The committee recommends accordingly.

(4)

The committee considered a proposal to refer the Australian Capital Territory (Self-Government) Amendment (Disallowance Power of the Commonwealth) Bill 2006 to the Legal and Constitutional Legislation Committee, but was unable to reach agreement on whether the bill should be referred (see appendix 2 for a statement of reasons for proposed referral).

(5)

The committee deferred consideration of the following bills to its next meeting:

• International Tax Agreements Amendment Bill (No. 1) 2006
• Tax Laws Amendment (2006 Measures No. 4) Bill 2006
• Tax Laws Amendment (Repeal of Inoperative Provisions) Bill 2006.

Jeannie Ferris

Chair

9 August 2006

Appendix 1

Proposal to refer a bill to a committee

Name of bill(s):

Migration Amendment (Visa Integrity) Bill 2006

Reasons for referral/principal issues for consideration

To examine the effect of the amendments in the bill, particularly:

• To ensure there are no unintended consequences of the provisions;
• How the bill clarifies the status of non-citizen children born in Australia; and
• The requirement and return for securities before granting of a visa.

Possible submissions or evidence from:

Committee to which bill is referred:

Legal and Constitutional Legislation Committee

Possible hearing date: 29 August 2006

Possible reporting date(s): 17 October 2006

Appendix 2

Proposal to refer a bill to a committee

Name of bill(s):

Australian Capital Territory (Self-Government) Amendment (Disallowance Power of the Commonwealth) Bill 2006

Reasons for referral/principal issues for consideration

Examination of the bill as necessary.

Possible submissions or evidence from:

ACT Government, Opposition, Greens; Northern Territory Government, Opposition; members of the ACT community.

Committee to which bill is referred:

Legal and Constitutional Legislation Committee

Possible hearing date:

Possible reporting date(s): 10 October 2006