The nearest the ACT gets to a Constitution is the Australian Capital Territory (Self-Government) Act passed by the Federal Parliament in 1988 – shades of the Australian Constitution being created by a British Act. Our Act has a prosaic preamble: “”An Act to provide for the Government of the Australian Capital Territory, and for related purposes”.
The only even vaguely purposive clauses in our Act are Section 7 which provides “”The Australian Capital Territory is established as a body politic under the Crown by the name of the Australian Capital Territory” and in Section 22 (1) which says (subject to some reservations) that the Legislative Assembly “”has power to make laws for the peace, order and good government of the Territory”.
Last week, Chief Minister Kate Carnell said she would like to see a preamble to the Self-Government Act. The call came in the context of general excitement about having a new preamble to the Australian Constitution and in light of Prime Minister John Howard’s determination to use whatever federal power he can to prevent a heroin trial being conducted in any state or territory. Mrs Carnell apparently believes that a preamble would be a statement of self-determination and sovereignty that would increase the ACT’s legal independence.
A preamble might be a good idea, but its enactment would illustrate the very dependence that the ACT has upon the Commonwealth. It would require the Commonwealth Parliament to enact the preamble. The ACT cannot realistically become a fully self-determining polity in the sense that the Australian states are. The very purpose of this territory is to contain or be the seat of government for the Commonwealth. If that were not the case it would be part of NSW. Given that purpose there will always be an overriding responsibility and role for the Commonwealth in the ACT that is not required in the six states. In the states, the Commonwealth’s role is bounded by the powers set out in the Constitution, all other power remains with the states. In short, they are sovereign.
The ACT, however, is a creation of the Australian people. The Australian people agreed to its creation when they approved the Australian Constitution which sets out the parameters for the capital territory. Since 1901, however, the population of the territory has grown to an extent that a huge range of decisions were being made over a large number of people by a federal minister who was not answerable directly to the people of the territory. Some form of self-government was warranted. But it necessarily must always be a limited one – one that permits the Federal Parliament to intervene to protect the interests of the people of Australia in the upkeep of their capital.
The question is, how should those limits be defined? How, if at all should they be enforced?
The limits have been defined in the Self-Government. They are very broad powers with some defined no-go areas like company law, coinage and a few others and a joint arrangement over land management. That is quite proper.
But it is always open to the Commonwealth to change the Self-Government Act. It should do so when capital-city interests are affected. It should not do so because a majority of the Federal Parliament happens to disagree with a law of the territory which affects only territorians. The euthanasia Bill was an example of the latter and a law banning a heroin trial would be likewise. However, it would be absurd to give the territory some right of action to invalidate a Federal law, however bad in principle it might be. A river cannot rise higher than its source.
And certainly, a preamble would not be the way to achieve such an end.
By all means have a preamble and have it approved by a referendum at the next election, but it would be folly to pretend that it would give the ACT self-determination to the extent of statehood. Statehood would deny the very reason for the ACT’s existence.