Kate Lundy (ACT, Australian Labor Party, Parliamentary Secretary to the Prime Minister) Share this | Link to this | Hansard source

I am pleased that Labor will be supporting this private member's bill to strengthen the rights of territories. The Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Common­wealth) Bill 2010 has been referred to a committee. That committee has reported back to the Senate. I would like to warmly welcome their recommendation that this bill be passed.

At the outset, before I talk to some amendments, I would like to make it very clear that there are fundamental differences between this bill and another private member's bill that has also been introduced to the Senate, the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010. It is fair to say that there is often some confusion about this, because they both relate to the way in which the territories are treated under Commonwealth law and their capacity to make legislation. But very clearly the purpose of the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010—not the one we are debating today—is to repeal the euthanasia laws of 1997 and to repeal the provisions that preclude the ACT and NT from legislating on euthanasia. We will have an opportunity to speak about that another time. My own view is that it is about restoring territory rights.

But the purpose of this bill is to remove the power of the executive to overturn territory legislation behind closed doors without a parliamentary process. This has become known as the power of veto, if you like, over territory legislation. It is an executive mechanism that we in the Labor Party agree does not accurately reflect the status, the capability and the maturity of either the ACT assembly or the Northern Territory parliament. This bill will not stop the federal parliament acting in the national interest in an open and transparent way—in other words, from dealing with issues through both houses of parliament—should there be a conflict between Commonwealth and territory legislation.

I would like to foreshadow government amendments to the bill that were recom­mended by the Senate committee. These amendments will remove some words in clause 4 of this bill, which at the moment says, 'providing relevant territory legislatures with exclusive legislative authority and responsibility for making laws'. Our amend­ment would remove that reference because it does not accurately reflect the current power of the Governor-General to recommend amendments to territory laws. As such, it cannot be achieved by the bill. And this parliament can use a legislative process to override territory laws. To reflect in this private member's bill that this did create exclusive legislative authority and responsi­bility for making laws was indeed inaccurate. Nonetheless, this bill is an important change, because it does remove that executive veto, as I mentioned.

The other government amendment that I wish to foreshadow reflects the recommend­ation of the Senate committee and removes the reference to Norfolk Island. Norfolk Island is currently undergoing an extensive reform process. That reform process has bipartisan support and the support of the Norfolk Island assembly. That process is underway and we need to give due regard to that reform process, which involves govern­ance and various accountability and transpar­ency measures. It would be appropriate to consider the status of Norfolk Island's governance arrangements through that reform process.

Through the course of the inquiry into this bill many comments were made, particularly by the opposition, recognising that it was time for a broad update of the Australian Capital Territory (Self-Government) Act. That recognition was across the board. In speaking to this bill as an ACT senator, I tend to agree. In fact the ACT government and Chief Minister have for some time been saying that it is probably time for an update of and a closer look at the Australian Capital Territory (Self-Government) Act, given that it came into force back in 1989. There are so many things one could say about the progress of the Australian Capital Territory. We can reflect positively on the maturity, stability and functioning of the ACT assembly in its governance role. All of these things stand up to scrutiny and support the general bipartisan view that an update of that act is due.

However, it was disappointing that through the course of the inquiry it became clear that the opposition's position on this bill was to oppose it and that they were hiding behind a call for a broader review of the Australian Capital Territory (Self-Government) Act and using that as a reason not to support this bill. I will be very inter­ested to hear what the opposition have to say, because there is nothing in the context of a more comprehensive review or consideration of an update of the ACT (Self-Government) Act that would preclude their support for this bill right now. I know Senator Humphries is very tuned in to this issue. He has spoken many times on the right of the territories to create their own legislation. Indeed, we exchange words fairly regularly about this very issue. I would like to take this opportunity to remind Senator Humphries, the other ACT senator, of his past expressed avid resentment of federal interference in territory affairs and remind him that this is a significant opportunity for him and, indeed, for the opposition to respect the capacity and power of the legislature and remove this feature of an executive veto that is not shared by any of the states. It is something which applies only to the territories and, therefore, supporting this bill and the foreshadowed amendments by the government to remove that executive veto would bring the ACT and the Northern Territory into line with the states.

The final point I would like to make about this bill is that it really is about respecting those democratic rights. That is the basis upon which this bill has been proposed and the basis upon which we have debated similar issues in the past. The way in which we have seen this measure used by the former Howard government reminds us all that when we provide for self-government it is about trust, it is about respect and it is about the democratic authority of the government that has been put in place by an act of this parliament.

This is an opportunity to bring ACT democratic rights in line with those of the states and to stand up for the ACT assembly and, through it, all the people of Canberra. If the opposition turn their backs on this issue now, it will provide evidence that that is not a core principle which informs their view on these matters and will enlighten everybody that there is a strong thread of opportunism in the opposition's stance on the issue of territories' rights.

In closing, I would like to remind people that this does not prevent the federal govern­ment from engaging in a parliamentary debate in order to challenge state or territory legislation that is inconsistent with the Com­monwealth. Any fear campaign to purport that it will is misleading.

Finally, I would like to take this oppor­tunity, because I think it is directly relevant to the subject matter today, to congratulate the new—not so new any more actually—Chief Minister, Katy Gallagher. She is the new Chief Minister following the retirement of former Chief Minister Jon Stanhope. I would like to acknowledge that the transition was a smooth one and that I am extremely proud to work very closely, as I always have, with an ACT assembly, a Chief Minister and an ACT Labor government so focused on the best interests of the people of Canberra. I know they are committed to their ongoing campaign to ensure that they have the democratic right that reflects that of the states and that is commensurate with the status, maturity and broad rights of the people of the ACT.

I commend the bill to the Senate. I was very pleased to speak to it today. I look forward to the government moving the amendments, as they reflect the recommend­ations of the Senate committee, and I will watch with interest what is happening on the other side of the chamber.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The opposition 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 in particular that the Northern Territory has resumed a movement towards statehood. That was a movement which, in the 1990s, although ultimately defeated, was strongly supported by the then coalition government led by John Howard. I recently met with a bipartisan delegation of parliamentarians from the Northern Territory to discuss the movement towards statehood for the Northern Territory with them.

Equally, the coalition has always been represented in this place by ACT senators—my distinguished friend Senator Gary Humphries, a former Chief Minister of the ACT, and his predecessor, Senator Margaret Reid—who have been very, very ardent advocates for the rights and interests of citizens of the ACT. The issue of statehood for the ACT does not generally arise in these discussions because of the peculiarity of the ACT's constitutional position.

So respecting the rights of citizens who live in Australia's territories, particularly the two territories represented in the Common­wealth parliament, is core business for us in the coalition. What this bill purports to do is 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 interests of territorians seriously have grave concerns that, because of the piecemeal, haphazard and sloppy manner in which this is presented to the Senate by the Greens, by Senator Brown, 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. I know Senator Brown enjoys the luxury of pontificating about issues without having the responsibility to put those views into effect. But if Senator Brown had met with voters who are seeking to prosecute the case for Northern Territory statehood—

Senator Crossin interjecting—

I know you have, Senator Crossin. I do not doubt your interest in and commitment to this issue. If Senator Brown had met with those people, he would understand better than he does how constitutionally and politically difficult this is. Those who seek to advance the cause of Northern Territory statehood need a gratuitous intervention like this from the Senate like they need a hole in the head. So we 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 a piecemeal approach to issues of self-government. My distinguished colleague Senator Humphries will shortly be moving a second reading amendment and addressing this issue and elaborating further upon what the Senate committee report found.

There is another reason why the coalition opposes this legislation. We look with a very sceptical eye on anything that comes from Senator Bob Brown and the Greens. With a deeply sceptical eye, we have followed through the media the debate about gay marriage that has riven the Australian Labor Party and the concerns expressed, in particular by former Senator Mike Forshaw and former Senator Steve Hutchins—reflected, by the way, in their dissenting comments in the committee report—that this bill, although on its face a constitutional bill, is in fact being sought to be used as a vehicle for gay marriage to be introduced in the Australian Capital Territory. In forming that sceptical, dare I say somewhat cynical, view of Senator Bob Brown's purposes here, we are emboldened by comments that the former ACT Chief Minister Mr Jon Stanhope made in the context of this debate when Mr Stanhope belled the cat and made it perfectly clear that he would like to use this legislation, were it to be passed, as a vehicle to introduce gay marriage in the ACT. Mr Stanhope—who was a dreadful Chief Minister, a real no-hoper and one of the worst heads of government I have ever come across, on either side of politics, in any state or territory—revealed the purpose and the thinking behind this bill. Whether that purpose is continued by the current ACT Chief Minister I do not know, but at the time this bill was being shaped in the mind of Senator Brown we know what Mr Stanhope thought it would lead to and what he wanted it to lead to.

We know, as I said a moment ago, that on the issue of gay marriage the Labor Party is riven between those who are proponents of that issue and those—particularly the more conservative elements in the Labor Party—who are trenchantly opposed to it. We have no such division on our side of politics. We in the Liberal Party and the National Party support the Howard government's amend­ments to the Marriage Act; we do not support gay marriage. We are not having the argument among ourselves about gay marriage that is tearing the Labor Party to shreds at the moment. We are perfectly prepared to watch from the sidelines as the Labor Party tears itself apart. But anybody who thinks that there are not some in the Labor Party who see this bill as a step towards the enactment of gay marriage within the ACT is either deluded or dishonest. There are many—not all, perhaps not most—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. On its face, as I said before, it is a constitutional bill. On its face, it is a bill of general application, but we know that it is also part of this move to achieve an outcome in relation to the Marriage Act to which we in the coalition are resolutely opposed. For that reason as well, we will be opposing this bill and we will be supporting the second reading amendment which I foreshadowed and which Senator Humphries will outline in his contribution.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I rise to provide a contribution to the debate on the Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Commonwealth) Bill 2010. I do that in two respects: firstly, of course, as one of the two senators from the Northern Territory and, secondly, as Chair of the Legal and Constitutional Affairs Legislation Committee that inquired into this bill earlier this year.

I want to begin by saying that there are some aspects of Senator Brandis's remarks that I tend to agree with and there are some aspects of his remarks that I totally disagree with, and I think that what is happening in the Northern Territory and the views of people who are supporting statehood were a little misconstrued in his contribution. Can I say in providing some input into this debate that I often feel that, representing the Northern Territory, I am a bit like the youngest child in a family of 250 here. Sometimes when you are representing the Northern Territory in this chamber, you feel like you are at the bottom of the pecking order. You feel like you have to fight for every piece of recognition and acknowledge­ment you can get for the Northern Territory.

For the last 13 years it has always eluded me as to why we are constantly coming into this chamber for debates such as this when we would not have these debates if we were a state or if people somehow did not feel that they could pick on the Northern Territory all the time. They do that by using some sort of hook rather than letting the legally competent, elected governments of the Northern Territory—whether they be under the Country Liberal Party or under the Labor Party—just get on and do the job they are elected to do. They enact euthanasia legislation, but for some reason here in Canberra, if we do not like it, we think we can overturn it. They enact mandatory sentencing legislation, but for some reason here in Canberra, if we do not like it, we will overturn it. People fought to keep euthanasia laws; people here overturned them. People wanted to keep mandatory sentencing laws; people here wanted to overturn them. It is always about an issue when you come to the Territory. It is never about the competency of the governments.

I have lived in the Northern Territory for 30 years. Let me tell you: there are some laws that the CLP enacted that I did not particularly like at all, but I did not think that that was a key for me to open the door to Canberra and say, 'Overturn the legislation.' I think people down here have got to get out of that mind-set and totally get off picking on the Northern Territory and its government, no matter which party leads that government. Just leave us alone. Just let us get on with governing in our own right.

We inquired into this piece of legislation. It is not a comprehensive review of the self-governing aspects of the ACT and the Northern Territory, and we make those strong recommendations here. I look at the amendment that Senator Humphries wants to make, and in some respects perhaps that does need to happen, but at least I am saying, 'Pass this piece of legislation,' because this piece of legislation could become law while a review of the self-governing acts is occur­ring. I will get on to why I would not support that for the Territory in a minute.

What this bill simply does is remove the power of the executive government to veto legislation that has been enacted in the territories. That is all it simply does. It stops somebody in the executive arm of the federal government deciding they do not like a piece of legislation that has been enacted in the Northern Territory or the ACT. But it still leaves in place the provision for this federal parliament to overturn a piece of legislation. To me, that is not good enough either. I think the Territory government should be allowed to just get on with what it is competently elected to do. But for me at least this is a first point of call. At least we could be assured in the Northern Territory that one particular minister or one particular Prime Minister of any governing party in this country could not go off to the Governor-General or the Administrator and seek to overturn a piece of legislation.

So is this a perfect piece of legislation? It is not a comprehensive piece of legislation in terms of the self- governing act of the territories, but at least it is one start. You could argue: 'Let's not do it at all. Let's do a comprehensive review.' But I think at least it gives the people of the Northern Territory some confidence to know that not one single person or one part of the executive govern­ment will be overturning legislation. Unfor­tunately, it does leave the door open, as I said, for this federal parliament to overturn legislation. Can I go to some of the remarks that Senator Brandis had to make on behalf of the opposition. You cannot step away from the fact that both the Chief Minister of the ACT at the time, Jon Stanhope, and the current Chief Minister of the Northern Terri­tory, Paul Henderson, flew specifically to Canberra. Jon Stanhope made himself specifically available to appear before the Senate Legal and Constitutional Affairs Legislation Committee to support this legislation. That in itself showed me that both those governments and parliaments supported this legislation.

Another thing that impressed me, not only as a Territorian but as chair of that commit­tee, was that members of the Northern Territory Legislative Assembly Standing Committee on Legal and Constitutional Affairs flew here, including the Hon. Jane Aagaard and Kezia Purick. Members of that committee were in person at the committee hearings here in Canberra. I want to impress on people here that that was a bipartisan committee. That was a bipartisan attempt, to come down here and say, 'This legislation is okay; we support it.' But really what we in the Northern Territory are trying to do is get support for statehood. That is the endgame here. A 10-year process has been put in place by the Northern Territory government, which has been supported by the opposition. I am very impressed by the way in which both political parties have worked towards achieving this outcome. There has been a five-year consultation period and there will now be a five-year period of actually drafting a constitution and working out exactly the questions we will be asking Territorians.

This is where I differ from the comments that Senator Brandis put on record. The Chief Minister of the Northern Territory did come down here and, in endorsing the bill's proposals as they pertain to the Northern Territory, said:

It is a very basic principle that we are arguing for here. The 25 members of the Territory parliament, who make laws for the good governance of the people of the Northern Territory, are elected by Territorians and they are accountable through fixed-term elections … For the Commonwealth executive arm of government to have the power, essentially at the stroke of a pen, to make a recommendation to the Governor-General to disallow a law in the Territory undermines democracy in the Northern Territory.

So, yes, he was supportive of this legislation. However, both he and the members of the Northern Territory legal and constitutional committee fervently put to us that the endgame for them is a move to statehood. That is what they really want. In your pro­posed amendment, Senator Humphries, you seek not to consider this bill but only to consider the interests of the ACT, in examining the self-government act for the ACT. I say to myself again: the Northern Territory would miss out on both counts here. We would not get this legislation through and support the wishes of the Northern Territory parliament, the submitters and the representatives of the Northern Territory. This amendment does not suggest that we would look at a move to statehood in the Northern Territory. We do not want the self-government act in the Northern Territory reviewed. We actually want an endgame where, essentially, that act is repealed. So this amendment is not a win for the Territory either.

But I think we need to clearly understand that this piece of legislation 'ought to be about votes, not about vetoes'. That is a phrase that was written yesterday by a journalist in the Age. It ought to be about democracy, not about particular issues. It ought to be about, at least, taking a first step in recognising that the Northern Territory has competent governments. Those govern­ments are elected by the people of the Northern Territory, just like the New South Wales and the Victorian parliaments are elected by the people of New South Wales and Victoria. They put legislation in from time to time that people do not like, and that also happens in every other state in this country. But what this bill seeks to do is ensure that those laws are not overturned by the executive government of the federal ruling party. That is all we are asking for in this legislation.

It is a first step. It is not the best step and it is not the step that we want to achieve at the end of the day. We want to see legisla­tion go through this parliament that grants the Northern Territory statehood in our own right. This is another example of where you have to come in here time and time again and keep flying the flag for the Northern Territory. It somehow eludes me why it is always the case that people here in this building believe that they can continually interfere in what is happening in the Northern Territory. This is one piece of legislation where, for a change, we would get some positive interference. Yet it seems it will not be supported unanimously in this chamber.

I am speaking in support of this legislation, but I am speaking more in support of the view that the Senate Legal and Constitutional Affairs Legislation Committee expressed in section 3.6.1 of this report:

The committee places on record its strong support for statehood in the NT …

The committee would also welcome any opportunity to work cooperatively with the NT Legislative Assembly Standing Committee on Legal and Constitutional Affairs towards achieving that goal.

I can say that, as Chair of the Senate Legal and Constitutional Affairs Legislation Committee, it is an issue that we will pick up and write to that committee about. Perhaps for the first time in the history of this coun­try, we might see a standing committee at a federal level and a state level come together to hold an inquiry or do some work together to achieve that outcome.

But let us be very clear here: what we want in the Northern Territory is statehood. We want to get to it in a measured way and in a bipartisan way where people of the Northern Territory are comfortable and confident about that on the day they vote yes. This legislation is just one step on the journey. It removes the power of the exec­utive arm to overturn our laws. Unfortunate­ly, it still leaves provision for the federal parliament to overturn our laws, and that is still not good enough. But, at the end of the day, this bill is certainly worthy of support. Unfortunately, Senator Humphries, I think that your amendment, again, really ignores the wishes and the wills of the Northern Territory and that there would be no benefit for us if your amendment actually succeeded.

Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Link to this | Hansard source

I move the second reading amendment standing in my name:

Omit all words after "That", substitute:

  "the Senate declines to consider the bill further, and:   (a)   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 ACT and the NT 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 ACT and the NT holds merit, and would help to address some of the specific issues raised during this inquiry.";   (b)   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   (c)   calls for a full review of the Australian Capital Territory (Self-Government) Act 1988 in lieu of piecemeal amendments to that Act".

I will come back to speak about that a little more later. The question that I ask today in looking at the Australian Capital Territory (Self-Government) Amendment (Disallow­ance and Amendment Power of the Commonwealth) Bill 2010 that Senator Bob Brown has put before the chamber is: what garments does that ultimate populist, Senator Brown, parade around in the Senate today? He appears to be wearing the clothes of the friend of the territories—the man who cares deeply about territorians and their rights to make decisions for themselves, the man who is the champion of regional autonomy, the man who stands up for Canberra against the federal government. This disallowance bill is brought forward to prevent the ACT, the Northern Territory or Norfolk Island being pushed around by ministers in a federal government. This bill gives expression, presumably, to ideals of self-determination which were inherent in the self-government acts of the 1970s and 1980s.

There is something about that image of Senator Bob Brown today which does not seem quite right. Something does not quite gel about Senator Brown as the champion of the second tier of government in this country. Something is more akin to a masquerade than to reality, because I recall a very differently attired Bob Brown not all that long ago. I recall that Dr Bob Brown, as he then was, came to national attention in the 1980s as the scourge of the Tasmanian government that wanted to build a certain dam, and Dr Brown argued that the conflict over the dam to be built in Tasmania should be resolved in a certain way. How did he want that resolved? He wanted it resolved by the federal government interfering and inter­vening in the affairs of the self-governing Tasmanian polity to stop the building of that dam. Where were the rights of territory or state governments at that stage of Senator Brown's career?

People might say that perhaps Senator Brown today feels differently about the territories than he felt about Tasmania back in the 1980s. He is now a member of parliament; perhaps he has a different view. I am not sure that that is the case either. Senator Brown's record with respect to the territories is not a lot better. I look at Senator Brown's bill, the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999, which was introduced by Senator Brown to override the rights of the self-governing Northern Territory to legislate in favour of mandatory sentences for certain people committing crimes. Senator Brown was unhappy with that and was quite comfortable in 1999 to introduce legislation to override the rights of the Northern Territory to legislate in that way. I have had this debate with Senator Brown before and I know what he is going to say. He is going to say, 'We were justified in intervening in the affairs of the Northern Territory at that time because we were dealing with a fundamental human rights matter which cut across Australia's international obligations under treaties; therefore, despite the principle which I strongly adhere to being violated, it was okay to intervene in the Northern Territory on that occasion.'

Unfortunately, Senator Brown's record of intervention in the affairs of self-governing states or territories does not end there, because in 2003 Senator Brown returned to this issue with a motion of disallowance. Bear in mind that he is now moving a bill in the Senate to stop disallowance of territory legislation. Back in 2003 Senator Brown was quite happy to move a motion of disallow­ance in this place to prevent a certain road project proceeding in the Australian Capital Territory, the widening of the Gungahlin Drive extension, despite the fact that it was supported by the then territory government, because Senator Brown did not approve of the building of that road. He did not like the idea of that road being built and did he want the territory to make its own decision about that at that stage? No, he did not. He knew better. He would bring the might of the federal parliament down on the ACT and prevent the building of that road.

Senator Brown has no credibility on such issues. Senator Brown is no friend of territory autonomy. He is in this respect an opportunist, happy to champion the rights of territorians to legislate when he agrees with what they propose to do with that power and equally happy to trash territory rights when he believes that his interests are not being served. You may say that today he is not talking about the right to interfere or not; he is talking about the way that you interfere. At the end of the day, Senator Brown, it does not really make much difference. If you are going to do somebody over, the way in which you do it does not have as much bearing on the matter as the fact that you are doing them over in the first place.

The coalition is not going to play along with the cynical game that Senator Brown is playing here today. There are serious issues about the form and the effectiveness of self-government, certainly in the ACT, and I suspect my colleague Senator Scullion—and we have heard from Senator Crossin already—will flag questions about the effectiveness of self-government arrange­ments in the Northern Territory. Those are real issues which deserve systematic, careful examination by the federal parliament, not piecemeal legislation designed more for political purposes than to advance a system­atic examination of what is wrong and what needs to be fixed about the institution of self-government in those places. This bill does not address those fundamental issues, issues that Senator Crossin talked about that I know vex Senator Scullion. This bill is an oppor­tunistic intervention to clothe the Greens in the most favourable electoral light, not an attempt to fix what I think we all know needs to be addressed.

I have moved a second reading amendment which first of all acknowledges the findings of the Senate Legal and Constitutional Affairs Legislation Committee that there are issues which simply have to be addressed and which this legislation does not address. The second reading amendment affirms the process by which the states and territories move towards greater legislative independence consistent with the framework of Australian Federation. In the case of the Northern Territory, that may well include statehood within a few years. That is probably not the case for the ACT, but certainly the ACT's need to overhaul the institution of self-government, which is now more than 22 years old, is a real and urgent need and, again, the piecemeal approach taken by this legislation is not a satisfactory solution to that problem. The amendment calls for a full review of the Australian Capital Territory (Self-Government) Act. If a colleague, particularly Senator Scullion, supports the view that the Northern Territory should also be included in such a review, I am very happy for that to occur. Indeed I would foreshadow that in the next few sitting days Senator Scullion and I will put forward a matter for the Senate to consider with respect to the question of the structure and future of self-government in the Northern Territory and the ACT.

I hear the support of the Labor Party for this bill and I note that there is a pretty large measure of cynicism in that position as well. I recall 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, through the disallowance power, to overrule the then-proposed resurgence of civil unions 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 at that stage rebuffed that suggestion very clearly, and the senators who today rise to tell us what a wonderful idea this bill is were perfectly happy to use that power back in 2008.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

Not true, Gary.

Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Link to this | Hansard source

It is true.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

No, it's not true.

Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Link to this | Hansard source

If you want, Senator McLucas, I will table the press statement that was made at that stage. You did not use the power because the ACT government backed down. You did not carry it through but you threatened to use it.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator, through the chair, please.

Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Link to this | Hansard source

Yes, Mr Deputy President. Let us not be holier than thou. When it suited your purposes you were quite prepared to use this power in this way. This is a process bill. It is about how decisions are made affecting the powers of territories. It is not a substantive bill about those powers, and those issues do need to be addressed and in other ways they will be addressed. I would prefer that they were addressed through a comprehensive review of the status of self-government, not through some piecemeal approach. That is the appropriate way to deal with this. I represent the ACT. I understand what I think the people of this territory aspire to and want. I do not think they want the institution of self-government to be toyed with by federal politicians. They want these issues to be dealt with systematically and comprehensively. I believe the citizens of this territory would welcome an opportunity to engage in a full, comprehensive consult­ative process to examine the status of self-government here. That is the better approach, not the approach inherent in this very piecemeal piece of legislation.

Lisa Singh (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I rise to make a contribution to the debate on the Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Common­wealth) Bill 2010. Obviously, I rise as a senator from what is clearly Australia's smallest state, but a state that has had responsible government for over 150 years and one that is fiercely attached to its democratic institutions. Tasmania is also a place with a profound sense of identity—an island which has a particular tradition, a unique history and strong sense of commun­ity. Tasmania is a special place, a place with which I am deeply connected, and a place to which as a citizen—as a Tasmanian—I feel a sense of belonging. I belong to Tasmania. And Tasmania belongs to those communities who have had the honour of calling themselves Tasmanians.

We have the oft-remarked right of being well represented in this place, a right that allows our members of parliament to connect with our constituents at a very close level. At a state level, we have a particular electoral system, one which I know the other Tasmanian senators in this place know very well. It is the Hare-Clark system—shared with one of the territories with which this bill is concerned—which gives people the oppor­tunity to choose from amongst a wide range of candidates to find the one who best reflects their views and by whom they want to be represented. If those views are not carried to the parliament and reflected in the laws of the state, then the representative will be held to account at the next election. This is a very basic expectation of a democracy. And it is a very basic conclusion of the kind of belonging about which I spoke a moment ago. When one of those elements is not present in a system of governance, then it is difficult to call that system fully democratic. It is difficult to say that connection between a people and their place has been respected.

The way the law operates at the moment does not respect the important principle that people should be able to elect people to represent them, and that those represent­atives should have the capacity to deliver on the promises that they make and the values they espouse. This bill is about enabling the Australian Capital Territory and the Northern Territory to shape their own futures in a more democratic way. Both territories have proven themselves over a long period of time to be more than capable of governing them­selves in a responsible way, in the same web of interdependency between the levels of government in which the states participate. In fact, the ACT especially has led the way on a number of issues, and I want to take a moment to reflect on the very positive legacy left by Jon Stanhope and, in doing that, reject the characterisation of him made earlier in this place by Senator Brandis. Under Jon Stanhope's leadership, and importantly reflecting the values of the people of the ACT, his government led the nation on issues of rights, an important example of which is the Human Rights Charter.

This bill does not remove the interdepend­ency and the checks and balances we expect in a federal and a national democracy. Under this bill, there remains parliamentary over­sight of the territories, and I am sure that is an issue about which future debates will rage. But it is notable that this bill is relative­ly conservative in that sense. It is not a wide-ranging constitutional reform. It is about honouring the principles of democracy that we have already declared in this place, some time ago, and the will of territorians as reflected in their legislative assemblies. And when there is a conflict between those wills, or if there is a need to act separately to territorial legislators, we will have a debate in this place, as we should. We should have to put our case in detail on particular issues. We should have to respect that the destiny of the territory should be up to the territories unless we can justify intervention.

No doubt governance in this country is a complex matter and the issues involved are complex. We have international obligations and we have national priorities. We have differing levels of capacity in our different institutions. But what should underpin all of that is an understanding that the will of the people should be respected wherever it is most clearly expressed. I believe, in this case, that this means we should respect the laws enacted by our territorial assemblies. As we are aware, these territories were created by acts of this parliament. Their legislatures are rightly subject to the deliberations of this parliament, not executive government. It is important that the Commonwealth parlia­ment enable the ACT and Northern Territory legislative assemblies to be independent, to be responsible and to be accountable to their citizens. That is what I believe this parlia­ment is for and what Australians expect. Australians do not expect people elected for a different role to be able to override the will of the territories lightly.

Mathias Cormann (WA, Liberal Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

This bill is another example of the Green tail wagging the Labor dog. It has nothing to do with wanting to improve the self-governing arrangements that apply in the territories. This started in 2006 when the Howard government decided to exercise section 35 of the ACT act to disallow the ACT Civil Unions Bill. That is what got this process underway. If you look at this bill as it was originally introduced by the Greens, it did not then mention anybody other than the ACT. This had nothing to do with wanting to improve self-governing arrangements for the territories in Australia; it was entirely and exclusively driven by the Greens' desire to stop the then Howard government and subsequent governments preventing the ACT government legislating for civil unions in the Australian Capital Territory. In 2006 the Howard government made that decision and, as Senator Humphries indicated, Kevin Rudd as the then Prime Minister in 2009 took a very similar view. Because he had good relations with the then ACT Chief Minister, Jon Stanhope, no doubt they were able to organise these things behind closed doors and did not have to run through the whole process. But the effect was the same.

I want to correct something that Senator Lundy said. Senator Lundy suggested this is somehow about restoring territory rights, as if it were going to take things back to somewhere they had been before. The capacity for Commonwealth governments to make the sorts of decisions that the Howard government did in 2006 has been in this relevant legislation as part of the self-government arrangements since the word go. This is not new; this is not just something that came out of nowhere in 2006. The Howard government exercised an existing section in the existing act. As Senator Brandis and Senator Humphries have said, and as I am sure Senator Scullion will say, the coalition is very supportive of having a comprehensive look at how self-government arrangements can be improved. But this is not what is driving the Greens. The Greens are being driven by their social agenda in relation to same-sex marriage, euthanasia and other bits and pieces for which they cannot get support, despite repeated attempts, in any of the state parliaments.

As Senator Humphries indicated, it is not as if the Greens are consistent on this. There have been times when Senator Brown has wanted the federal government to overturn the state government of Tasmania on some­thing happening in that state. And when it came to mandatory sentencing laws in the Northern Territory Senator Brown was quite happy to see the Commonwealth override the Northern Territory legislation at that point in time. This has got nothing to do with a genuine commitment to improving the rights of territorians; this is entirely and exclusively driven by Senator Brown's desire to see legislation on civil unions and same-sex marriage and euthanasia become more achievable in the sorts of parliaments where he thinks that this sort of legislation has a chance to get up.

I just reflect on the fact that in 1997 this parliament voted to overturn the Northern Territory euthanasia laws. Whatever any­body's views on the substance of that matter, it was no doubt at the time a divisive debate. I was not involved as it was before my time. However, the Commonwealth parliament voted to overturn the Northern Territory euthanasia laws. No doubt that would have been a time when there would have been some robust debate inside the Northern Territory, among the good people of the Northern Territory, about how it could be that the Commonwealth parliament could do this. It was the year after the Commonwealth parliament here in Canberra made a decision about laws enacted by the Northern Territory in relation to euthanasia that the proposition of the Northern Territory becoming a state was put to a referendum. History shows that the people of the Northern Territory decided that they did not want to become a state at that point. I hear what Senator Crossin is saying and no doubt Senator Scullion will have similar views, and I know there is a bipartisan effort in the Northern Territory to continue the path towards statehood. I wish them very good luck with it. But right now the situation is that it is the Northern 'Territory'. The reason that is still the situation is because the people of the Northern Territory in 1998 voted against statehood. I was drawn to the additional comments that were made by former Labor Senators Forshaw and Hutchins, who were part of the inquiry into this legislation. I have to observe here that the fact the Australian Labor Party has decided to support this legislation is a very sad reflection on the current state of the Labor Party. The Labor Party once had courageous senators, like former Senators Hutchins and Forshaw, who were able to assess legislation as they saw it. I will just read from their comments:

This Bill should not be passed in its current form. It is flawed.

I could not have put it better. The quote goes on:

It will not achieve its stated objects. If enacted, this Bill will produce disparities between the legislation governing each of the territories and with the Commonwealth and the States.

Towards the end of their comments. Senators Hutchins and Forshaw observed:

It is not surprising that this Bill is technically flawed. Both this bill, and a previous bill proposed by Senator Brown in 2006, originally applied only to the ACT. They are clearly a reaction to the Howard Government's decision to use Section 35 of the ACT Act to disallow the ACT Civil Union's Bill. The proposed amendments to include the NT and Norfolk Island appear to have been an afterthought without any consideration of the consequences detailed above.

They recommend:

The Bill should be either withdrawn or not passed by the Senate.

Their final recommendation is:

We recommend that the Bill not be passed.

Former Labor Senators Forshaw and Hutchins do make the observation that the territories are not states. During the inquiry, the Northern Territory Chief Minister expressed support for the bill as it would be a 'small but significant step towards statehood.' As they observe:

This is not the expressed intention of the Bill. Any move toward statehood should be approach­ed in a serious and considered manner not piecemeal nor as a reaction to a particular decision.

That is exactly what Senator Humphries mentioned and what he is trying to address through the second reading amendment that he has moved.

I read in the media earlier this week that the Labor caucus—I should say the Austra­lian Labor Party caucus because we now have a true Labor senator among us in Senator John Madigan representing the Democratic Labor Party—decided to back the territories' autonomy because Australian Labor Party MPs, and I quote from an article in the Age on 16 August:

… received assurances that the bill would not lead to legalisation of same-sex marriage in the nation's capital.

A bit further on it says:

Caucus yesterday adopted the bill ''without controversy'' with members assured it was not about same-sex marriage.

But then:

A spokeswoman for ACT Chief Minister Katy Gallagher said it welcomed the decision of federal Labor but declined to comment on whether the territory would pursue same-sex marriage.

Why is that? If it is not about that, if they have got no intention of pursuing it, why wouldn't she just say so? I think that Senator Farrell has been sold a pup. I think that Senator Farrell should try and show a little bit of courage like former Senators Hutchins and Forshaw did. He is now part of an Australian Labor Party that will facilitate either civil unions legislation or same-sex marriage legislation in the Australian Capital Territory. If Senator Farrell's intention is not to see that happen then he should support an amendment to rule it out in the legislation here today. I can see that he is distracted and is not prepared to listen to the debate that is going on, even though he is here represent­ing the government. Hopefully somebody back in his office is taking clear note.

This bill is about the Greens tail wagging the Labor dog. This Australian Labor Party is totally captive to the Greens. The Greens are driving their agenda. This has not been initiated by the Australian Labor Party government. This has been initiated by the Greens and the Labor Party is just hopping in and backing it up. Why? If you are serious about improving self-government arrange­ments for the ACT and the Northern Territory, go about it in a serious way. Go about it in a strategic way, support a proper review, support a proper approach that does not sort out these things in a piecemeal fashion just because Senator Brown was upset that the Howard government exercised section 35 of the Australian Capital Territory (Self-Government) Act to disallow civil unions in the Australian Capital Territory. Senator Farrell, you might have been given assurances in the ALP caucus that this would not lead to legalisation of same-sex marriage, but the Chief Minister's office refused to rule it out when they were asked about it:

A spokeswoman for Chief Minister Katy Gallagher said it welcomed the decision of federal Labor but declined to comment on whether the territory would pursue same-sex marriage.

We used to have a Prime Minister in Kevin Rudd who was prepared to stand up to the ACT government in relation to this issue. Now we have a Prime Minister who is too weak. She is captive to the Greens. The Greens have bullied her into supporting this bill. Senator Mark Bishop, Senator Collins, Senator Farrell, Senator Stephens—where are they? At least former Senators Hutchins and Forshaw were prepared to stand up and be counted and call this legislation for what it is—a flawed bill that should not be passed.

If people like Senator Farrell on the Labor side were serious about representing true hardworking Labor voters, they would seriously reflect on what they are doing with this because there is now an alternative in the marketplace called the Democratic Labor Party. There are going to be people across Australia who are going to reflect very seriously on whether they should support the Greens-wagged Australian Labor Party or whether they should go to a true Labor party. I suspect you will find that people will turn away from the Australian Labor Party because of their support for bad pieces of legislation like this.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

It is very rare for me to rise in this place and feel sorry for those on the other side, particularly for my colleague from the Northern Territory, but I think it is reasonable to put on the public record why they are taking this position. The reason my heart goes out to them is I am actually quite sure the leather is softer on that side. It is a long time since I sat over there, but it was certainly a lot more comfortable. There are a lot of benefits that go with government which make you want to stay on that side.

The sad thing about Labor's position is that it has had a very light spray of green over all of its motives. It is really important to have a look at the motive today. Senator Crossin stood in this place today, as she always does on any issues in regard to the Northern Territory, and said that we are moving along towards statehood. I have been very pleased to stand in this place on the most recent issue, legislating for euthanasia, and I support her in that regard. If you look at the motive for all of this behaviour, it is simply to stay in government. That is the rawest deal. Of course the Greens have a great deal of influence, as they should in those circumstances, to ensure that this government does what it is told. Today we see the Labor government being pretty compliant and the Greens should be very pleased with that—it seems to be behaving appropriately and it is not being too naughty or doing things that the Greens do not require.

If we are looking to motive, perhaps we should examine the Greens' motives. Motive is very important in life. Why is it that we are moving along with this? Why is it that, suddenly, Bob Brown has a terrific love affair with the territories? He is very keen on the territories and on the people who live in the territories, but he is particularly keen on the legislation in the Northern Territory. As has been indicated today, Bob Brown hardly seems to have a consistent approach. He is, today, basically saying that the Common­wealth should not interfere with the Northern Territory or with the Australian Capital Territory—'The poor devils, we should allow them exactly the same rights as a state.' It sure seems odd. I do not know whether it was a different bloke, but whoever it was, Senator Brown, I recall him standing in here saying: 'Let's overturn the mandatory sentencing laws in the Territory. How dare they take their own stand in the Northern Territory and have their own rights to determine how they deal with the criminal justice system. Let's use the Common­wealth's powers in this place, in this Senate, to overturn them.' You can understand why I am a little bit confused in that regard.

I wonder what the motive is. You cannot accuse the Greens of not being organised or of not having a motive. They do have a motive. There is a very clear motive here and it has been indicated earlier. The cat has already been belled. If Katy Gallagher was not happy to stand up and say that this is all about introducing same-sex marriages in the Australian Capital Territory, the previous Chief Minister, Mr Stanhope, certainly was. He said: 'Absolutely. Looking forward to introducing same-sex marriages in the Australian Capital Territory.' In regard to this piece of legislation that those on the other side have been forced to accept, they have been given foolish assurances and have been foolish to accept those assurances. Those on the other side have accepted that that is the case.

Mathias Cormann (WA, Liberal Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

She is not ruling it out.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

Of course Gallagher did not rule it out because that is exactly what is going to happen. As sure as night follows day this will happen. Perhaps I can just briefly paint the picture of how it will occur. This legislation does, in effect, say that instead of using an executive arm of government to deal with issues that are not within a state's capacity to legislate on—things like marriage, starting your own navy, having your own currency, taxation and immigration—if the territories play with that area, we are going to have to come back and have a full debate in parliament. That takes a bit of time. The scenario is that, if the Australian Capital Territory passes a law on Monday, we might have a bit of a think about recalling parliament, if that is the will of the government, and maybe we will have an emergency session a week later. If, during that period of time, people are lawfully married, for example, in the Australian Capital Territory, what happens to them? They were lawfully married. Does the Commonwealth then come back and say, 'We've got some weird retrospectivity in all of this about how we unwind this mess.'

That is what I believe the motive for this is. If you wish to have same-sex marriages, there is a process to do that. I argued strongly in this place during the debate on one of the previous contributions from Senator Brown in the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010. I know that Senator Brown is a strong proponent of introducing euthanasia. I supported that bill not on the basis of whether I thought euthanasia legislation was being supported but because it is entirely the right of a state to make that decision. I also would expect, if the Northern Territory decided to start its own navy and its own currency or decided to start its own immigration system, that there would be an immediate action from the executive to deal with that. That is just a little about motive. Without a doubt that is what is going to happen.

Those people on the other side who think they are not part of something that will lead to what I have just described are, at best, fools. I know the comfort, vaguely recalled in my distant past, of being on that side. But remember: when this happens, your constituents will remember those who led them to that circumstance. If you want to introduce same-sex marriage, there is a way to go about that: you come to this place—because it is the Commonwealth which should legislate on those matters. Do not use some sort of a backdoor agenda to deal with these issues. Sadly, in the Northern Territory a few people are quite excited. They have rung me and said that they are really excited that this is going to give them more rights in the Territory. Once they have all the infor­mation they then understand that this is not another step forward in moving towards statehood.

I would just like to speak briefly about the foreshadowed amendment from Senator Humphries. Senator Crossin said: 'This is something we can't possibly support because it doesn't do anything for the Northern Territory.' I agree with that. She said, 'We don't want the self-government act revised.' Of course I agree: we want it abolished; we want to move to statehood. The Australian Capital Territory and the legislative framework are in an entirely different place to where we are in the Northern Territory, so I agree completely with her.

I would like Senator Crossin and people in the Territory to reflect on another contri­bution from Senator Humphries. In the next week of parliament we will be jointly submitting a process that will start a fair dinkum look at self-government in the Aust­ralian Capital Territory and the movement to statehood in the Northern Territory. It is not just a process on a couple of very small squeaky wheels. This will be a fair dinkum process with the motive of moving to strengthen self-government in the Australian Capital Territory and moving to statehood in the Northern Territory. That is the motive. That is what it will be about.

For those Territorians who think that this will somehow advance statehood, I can promise you that being astride a green horse with squeaky wheels is not the way to move forward. Look to the motive. This is an insult to those people who are actually striving for statehood in the Northern Territory and looking for stronger self-government in the Australian Capital Territory because it is about none of those things. On this side, we are clear-eyed and bright and we can see through the motive for this legislation. We do not accept that this is about strengthening issues for the Northern Territory and the Australian Capital Territory. That is why we will not be supporting this legislation.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

I rise as the responsible minister, representing the Minister for Regional Australia, Regional Development and Local Government, Mr Crean, to contribute to the debate on behalf of the government. On 4 May 2011, the Senate Legal and Constitutional Affairs Legislation Committee reported back to the Senate on its inquiry into the Australian Capital Territory Self-Government) Amendment (Disallow­ance and Amendment Power of the Comm­onwealth) Bill 2010, together with proposed amendments applying to the Northern Territory and Norfolk Island.

The bill and amendments circulated by the Greens sought to abolish the power of the Governor-General to disallow or recommend amendments to territory legislation by repealing section 35 of the Australian Capital Territory (Self-Government) Act 1988, section 9 of the Northern Territory (Self-Government) Act 1978 and section 23 of the Norfolk Island Act 1979. That is what this bill is about. It is moved by the Greens to abolish the power of the Governor-General to disallow or recommend amendments to territory legislation. It is not about a whole range of other issues, some of which have been touched on.

The committee report contained two recommendations. The first recommendation of the committee is that the Senate pass the disallowance bill subject to the following amendments: firstly, the disallowance bill apply only to the ACT and the Northern Territory; secondly, the removal of referen­ces in clause 4 of the bill that purport to provide relevant territory legislatures with exclusive legislative authority and responsi­bility for making laws; and, thirdly, clause 4 be further amended to more accurately reflect the current power of the Governor-General to recommend amendments to territory laws. The second recommendation is that Norfolk Island be excluded from the operation of the disallowance bill until further evidence is provided on the need for change in that jurisdiction.

The government agrees with the object­ives of this bill in removing the power of the federal executive to override legislation in the ACT and the Northern Territory. However, given the technical amendments required, the government has circulated its own amendments to this bill. Again, I emphasise that this bill is about removing the power of the federal executive to override legislation in the ACT and the Northern Territory. The issues that have been referred to—whether it is euthanasia or same sex marriage—are determined and governed by other legislation of the Commonwealth. Those issues are not what this legislation is about.

The amendments will support the repeal of section 35 of the Commonwealth Austra­lian Capital Territory (Self-Government) Act 1988 and section 9 of the Northern Territory (Self-Government) Act 1978 and incorporate the committee's suggested amendments. The government agrees with recommendation 2 of the committee that Norfolk Island should be excluded from the operation of the disallowance bill, given the differences between Norfolk Island and other self-governing territories. The recent passage of the Territories Law Reform Act 2010 also provides the Commonwealth with increased oversight and scrutiny of Norfolk Island legislation to ensure it is consistent with the national interest. It would therefore be inconsistent for the disallowance bill to apply to Norfolk Island.

The bill before the Senate today, with amendments that I have outlined, will remove the ability of the executive govern­ment to veto legislation enacted by the ACT and the Northern Territory legislatures. As these acts stand, the executive has the power to override the decision of the democratically elected legislatures of the ACT and the Northern Territory. This bill goes to the rights of those in the territories to determine the good governance of the communities in which they live. The architects of the Constitution predicted that there may be times when the national interest must be considered when looking at territory laws. That is why they drafted section 122 that allows the parliament, not exclusively the executive, to make laws for the government of any territory. As I have already said, this parliament still will have a right to determine laws in respect to the territories. This legislation that we are considering is about removing the power of the executive but not this parliament. For all these reasons, the government will support the passage of the bill with these amendments.

A second reading amendment has been moved by Senator Humphries. The govern­ment will not be supporting the amendment. I will make a couple of brief remarks as to why we will not be supporting it. Firstly, the issues raised in the amendment have been canvassed in the Senate inquiry into the bill. The committee concluded—in its majority report, at least—that the bill would improve the democratic rights of the people of the ACT and the Northern Territory and the passage of the bill would provide just recognition of the maturity and capacity of the ACT and Northern Territory legislative assemblies 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. Such a review should be driven by the ACT government and its citizens, and the Australian government would welcome considering 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 that both the ACT and Northern Territory Chief Ministers are on the record—or at least, in the case of the ACT, the previous Chief Minister; I am not aware of anything on the record from the current Chief Minister—as supporting the bill. For those reasons, the government will not support the second reading amendment.

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

I thank all contributors to the debate on this very important piece of legislation to foster improved democratic rights for the citizens of the Australian Capital Territory and the Northern Territory. I will not go over in detail the reasons for the Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Commonwealth) Bill 2010 because it has already been before the parliament and indeed through a thorough committee process, with the committee having endorsed the bill as it comes before the Senate today.

I note that there will be a number of amendments from the government. These reflect amendments that the Greens also had drawn up, and we will simply support the government amendments, which have the effect of extending this legislation to give the advantages of it to the voters of the Northern Territory and which cover some other related matters.

The Constitution says in section 122, with the headline 'Government of territories':

The Parliament—

it refers to this parliament, of course—

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

and that is what is in process here today. A couple of decades ago this same parliament legislated to transfer its power under the Constitution to make laws for the territories to the executive—that is, the minister of the day. As has been noted in public debate, that 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 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 in some future time Australians might want to give the growing population of the Australian Capital Territory the ability to have self-determination through a form of statehood which will provide for all the amenities of this being the national capital but will provide for enhanced powers for the people of the Australian Capital Territory. That is a matter for a 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. I take on board the issues of equal marriage and euthanasia that have been raised in here by the opposition today, but they know full well—Senator Humphries knows very well—that this legislation does not alter that. In fact, it enhances the powers of the Australian Capital Territory to legislate at least in the matter of equal marriage, if it wants to, but that is entirely a matter for the territory, as it is a matter for New South Wales, South Australia, Queensland, Western Australia and Tasmania.

Mathias Cormann (WA, Liberal Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

Equal marriage—so here we go; here we have it.

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

Senator Cormann interrupts. If he does not think that is a right that the people of the Northern Territory or the ACT should have and if the opposition in this place wants to have that right withheld from the people of the territories, it is flying in the face of its own history, because it was Mr Kevin Andrews who brought in the legislation that overrode the ability of the territories to legislate in the matter of euthanasia back in 1996, and it was passed by both these houses. That is a prohibition which is not altered by this legislation today. That prohibition, which was supported by a free vote of both chambers—I voted against it, but it was still supported by a free vote of both chambers, with a majority of three, as I recollect, in the Senate—will remain on the Northern Territory assembly and on the ACT assembly unless or until some future vote of this parliament changes it. In that sense, this does not restore or give the measure of equality of the territories with the states that you might think at the outset.

I notice that Senator Brandis has said this morning that the opposition does not have the problem with equal marriage that the government has because it is unified—it is en bloc opposed to it. I had not heard that before. That is news, and I am surprised—

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

It's always been our policy.

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

Senator Brandis repeats that it is the case that within the Liberal Party—note the name—members do not have the ability to have a free vote on what should be a matter of conscience. But that is up to that party and its several members to determine; it is not a matter which relates to this vote today. This legisla­tion is important in enhancing democracy. It is one of the four pillars of the Greens party's established philosophy that we do enhance democracy where we can. I notice some criticism that I have moved in the past to have the parliament—never to have a minister but to have the parliament—use these powers to, for example, override the locking up of Aboriginal children in jail in the Northern Territory because they stole biscuits. We will remember the outcome of that, which was that the legislation did pass the Senate. It went to the House and then Prime Minister Howard contacted the Chief Minister of the Northern Territory and offered the funding which ceased that practice of locking up Indigenous children, which had led to a horrible outcome regarding one child. It has not occurred since then, so it was an outcome which was worth while at that time. The ability of the parlia­ment to legislate or to put pressure upon the territories remains under this legislation. There is nothing inconsistent with my behaviour in wanting good outcomes and the proposal that is before the Senate today.

That said, we will oppose Senator Humphries's effort to not have this bill considered. I would have thought voting it down is one thing; to try and put it on the never-never and come to no conclusion, as Senator Humphries wants to do, to leave the voters of the ACT and the Northern Territory in limbo, would be the worst outcome possible. It is bucking the need for there to be a determination. Finally, I thank the chief ministers of both territories for their support, and most recently Katy Gallagher, the Chief Minister of the Australian Capital Territory. She has written to all members saying:

The Committee—

she is referring to the Senate 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.

I could not put it better myself. I look forward to this legislation passing this place and hopefully passing the House of Repre­sentatives so that it will soon pass into law. Question put:

That the amendment (Senator Humphries's) be agreed to.

The Senate divided. [11:07]

(The President—Senator the Hon. JJ Hogg)

Question negatived.

Original question agreed to.

Bill read a second time.