Prime Minister John Howard and the Commonwealth in general are quite within their constitutional, legal and democratic rights to look at the ACT law that allows gay couples to adopt children.
ACT Chief Minister Jon Stanhope and Howard are having a ding dong over the question. And there have been plenty of other Commonwealth-Territory ding dongs of a similar kind. So it is worth looking at the Commonwealth’s role and what an ACT Government can do in response. For example, Stanhope suggested that he might look at forcing an early election or otherwise act to make the Commonwealth’s position difficult
We should certainly get beyond the present position where the Prime Minister’s personal beliefs carry such huge weight.
The starting and end points with these things are usually the Constitution and the ACT Self-Government Act which is an Act of the Federal Parliament and is de facto the ACT’s Constitution.
The Commonwealth Constitution is fairly clear. Section 121 gives the Commonwealth Parliament power “to make laws for the government of any territory”.
Under that power it gave self-government to the ACT (in 1989) and to the Northern Territory (in 1978). So it can equally use that power to take away all or part of the self-government. It could render null any ACT law on gay couples adopting children, for example.
In 1997, the Commonwealth Parliament passed the Euthanasia Laws Act which rendered null a Northern Territory law permitting euthanasia. It also took away the power of the Northern Territory, ACT and Norfolk Island legislatures to make laws on euthanasia.
No-one bothered to challenge the constitutionality of the Euthanasia Laws Act because it was so plainly within Commonwealth power under Section 121.
But notice, the territories power is one exercised by the Commonwealth Parliament, not the Commonwealth Government. Any move, therefore, to overturn the ACT’s gay adoption law would need to pass the Senate; John Howard’s personal wishes alone would not be enough.
Leaving aside the legalities, the next question is the political and moral principle of the circumstances in which the Commonwealth Parliament should intervene in the territories’ exercise of their law-making powers?
This question was posed in the 1997 euthanasia debate. A majority of parliamentarians took the view that their moral opposition to euthanasia meant they should strike down the Northern Territory law. Another sizable, but minority, group was in favour of euthanasia and so voted not to strike down the law. A tiny minority thought that even though they opposed euthanasia the Northern Territory should govern itself and the law should stand.
It seems to be that this last stand has the most merit in a federation. The Commonwealth Parliament, having granted self-government, should not take bits back after the event according to political or moral whim at the time, especially when the power granted is a very broad one to make laws “for the peace order and good government of the territory”. It is a bit like a parent saying to a child, “You choose whatever university course you like,” and then cancelling support if the child picks a course the parent does not like.
The ACT has an economy bigger than Tasmania’s and a population almost as big. Its people should govern themselves as a state does, with only one critical exception. The Commonwealth Parliament should take an active role in matters relating to Canberra’s position as the national capital.
For example, the Commonwealth decided to veto the western alignment of Gungahlin Drive because it would affect a national institution, the Australian Institute of Sport. Even if one disagreed with the merits of forcing Gungahlin Drive to the east, the Commonwealth’s decision is a fair cop. The same could be said of the Commonwealth’s decision to veto traffic lights at the head of Anzac Parade.
There is a fairly easy test for the Commonwealth seeking to overturn territory laws it thinks are bad policy. It is the same test that applies to the states. The Commonwealth should use its ordinary powers to overturn the laws nation-wide, not just in the territories. If it does not have the power, then it should leave all the states and territories to their own devices.
If the Commonwealth cannot act with respect to the states, it should not single out the territories, now that it has granted them self-government.
The Commonwealth, as the national parliament, should craft its laws with national application. It does not have the power to do that with respect to euthanasia, so it should have left the issue alone.
On the other hand, it might have the power with respect to gay marriage and perhaps gay adoption. It might legally and constitutionally be able to ban both national wide. (Let’s leave aside the moral question of doing so.)
The Commonwealth has power under Section 51 of the Constitution to make laws with respect to “marriage” and to “divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants”.
A clever lawyer might be able to draft a law under that power to apply across Australia which would have the effect of banning gay marriage and (less certainly) gay adoption.
If the Commonwealth did that, none of the territories could complain that the Commonwealth was picking on them, even though they might abhor the new Commonwealth law.
What of Stanhope’s position? He said that, if the Commonwealth overturned the new ACT gay adoption law or its new Bill of Rights, his government “would have to consider its position”.
That is a euphemism for resigning. Stanhope’s argument is that his government is accountable to the people of the ACT and will be judged by them. It is hardly fair if the Commonwealth steps in and denies him the power to deliver on promises he made in good faith on the basis of having broad self-governing powers.
The idea of resigning would be to force an early election.
It is very much hypothetical, but presumably it would go like this: Stanhope resigns; the Assembly then must elect a new Chief Minister; Labor abstains so Opposition Leader Brendan Smyth is elected by the Assembly as Chief Minister; Labor then votes no-confidence in him or stymies every move his minority government makes thus making the Assembly unworkable.
If the Assembly is unworkable the Governor-General (on the advice of the Commonwealth Minister) would dissolve the Assembly and there would be an election.
It would not, however, affect the Commonwealth veto of the ACT gay adoption law. So it is a very problematic plan.
Most likely, Howard will huff and puff about gay adoption and the Bill of Rights and do nothing about it. He might attempt to get a few anti-gay votes by putting up a veto Bill that would most likely not pass the Senate. But even that is unlikely because Howard probably has most of the anti-gay vote anyway so there would be little to be gained.
Nonetheless, for territorians it is galling to have this ever-present threat of Commonwealth intervention in territory matters based upon the social and political views of the Prime Minister or Members of the Commonwealth Parliament.
It would be better if both sides of federal politics could agree on a convention of non-interference in territory affairs unless they were prepared to act via a law that applied across the whole nation.