WHEN the Feds were hard up in the 1980s and did not want to get the blame for tightening purse strings in the ACT it gave us self-government. That way some local politicians could take the flak from voters who would not take it out by turfing out a local federal Member, as they did in 1975 and 1980. So it is a little hypocritical for the Feds to then turn around and say you can’t have full self-government when the local government does something the Feds don’t like – like same-sex marriage or euthanasia.
The furore in the past week or so over Greens Senator Bob Brown’s bill to remove the right of the Federal Executive to override ACT laws has been exceptionally muddy and almost bereft of principle, particularly constitutional principle.
The ACT, unlike the Northern Territory, can never be a state because it houses the national capital. The national government and national Parliament have interests in the ACT beyond its interests in the states.
The Constitution provided for a territory to be carved out of NSW for the purpose of housing a federal capital. It also provided, “The Parliament may make laws for the government of any territory.”
The Parliament made such a law when it gave Self-Government to the ACT in 1989. At the time, there was concern, perhaps justified, that the experiment could go bad. So, provision was made for the Federal Executive (for practical purposes, the say-so of the Minister for Territories or Prime Minister) to disallow any ACT law, and, if the ACT Legislative Assembly proved unworkable to dissolve it.
Twenty years later, that concern is now unfounded. Despite some early ructions, the ACT has been better and more leanly governed on most measures than any other state or territory: no corruption or scandal; solid credit rating; low unemployment; high incomes; and less than average call on the national Government’s resources.
If the Northern Territory were as well-governed and had as strong an economy, it would have been a state by now.
Despite that and the ACT having a larger economy than Tasmania’s, some Federal MPs, want to retain the Executive veto. Brown’s Bill would remove the veto by Executive from the Self-Government Act, but it would not take away the power of the Parliament as a whole to legislate to override ACT law or to restrict its law-making power.
It could not do the latter without a change to the Constitution. Besides, Parliament has to retain power over the ACT to safeguard the national interest in the national capital. It might need to legislate to prevent, say, the Territory approving a 25-storey building close to the Lodge or Parliament House.
Some of the arguments put for retaining the veto do not hold water, especially given the 20-year record of ACT Government and the Federal Parliament’s continued power over the ACT.
The Australian newspaper in opinion pieces and an editorial argued along the lines that the ACT’s high income and education meant it could legislate out of step with general Australian standards. This argument suggests we should conform to the standards of middle.
Worse, it runs counter to the genius of federalism. Victoria was out of step with general Australian standards when it compelled the wearing of seat belts nthe early 1970s. Federalism’s legislative diversity allows for innovation and the addressing of local concerns.
The Federal Labor senators who heavied Prime Minister Julia Gillard into referring the Brown Bill to an inquiry had really only one concern: same-sex marriage. They were fearful that the ACT might enact same-sex marriages and thought it would be better if the legislation could still be over-turned at the stroke of a Minister’s pen rather than the need to get majorities in both House of Parliament to legislate to over-ride it.
So principles of democracy go out the window because of concern over a single issue.
The better principle would be to limit Federal intervention into the ACT’s affairs to two criteria: normal national legislation which applies throughout Australia and special legislation for the ACT as the seat of the national government.
So if the Federal Parliament wants to legislate about same-sex marriages, euthanasia, poker machines, trade practices or any other matter it should legislate nationwide. It would mean, of course, that it would have to frame its legislation within its constitutional heads of power or risk having the High Court declare it invalid.
The Territories should not be social laboratories for pet polices of Federal politicians who do not have the courage or wit to frame them as national law to apply nationwide.
The logical extension of some of the arguments put in favour of retaining the federal executive’s veto over ACT law is that we should abandon the federation and let the feds run the lot.
If the real agenda of the federal parliamentarians seeking to retain the veto is to prevent a beachhead for same-sex marriage, why don’t they craft a national law against it, and against euthanasia or any other matter that troubles their conscience?
It is electorally easy, with the support of a right-wing and religious cheer squad, to kick the ACT, but less so to craft a national law.
In a way, the Brown Bill does not go far enough. In addition to removing the veto it should limit any ACT-specific law coming out of the Federal Parliament to matters pertaining to the ACT’s role as home of the national capital. Or at least provide for some sort of certification process from Parliament’s legislation committees that the legislation either fits or does not fit that criteria.
Anything less is an affront to the people of the ACT and an affront to Australian democratic values.
National capital requirements aside, the ACT should be in the same position as a state and the residents of the ACT should have the same rights and duties as the people of the states.
CRISPIN HULL
This article first appeared in The Canberra Times on 12 March 2011
I am so bold as to disagree with you. If the ACT Legislative Assembly is to seriously be compared with a state parliament, I would point out that all states except Queensland (which has special problems) have three levels of Government, i.e. two houses of Parliament and a Governor. Constituents dissatisfied with proposed legislation can appeal to each of the three levels of Government to seek appropriate redress and guard against implementation of hasty or ill conceived legislation.
I come from Queensland, and regard the situation there as most unsatisfactory. The Labor Government abolished the upper house of the Queensland Parliament, the Legislative Council, in 1922 as it often opposed their legislation, probably with good reason and since then, Government is largely under the control of non-parliamentary influences with inadequate scrutiny applying.
Locally, power in the ACT Legislative Assembly is exercised by fewer than 10 people. It is ridiculous to imagine that the ACT Legislative Assembly will get it right every time they enact legislation. There is a need for an effective process of review and if necessary, appeal by dissatisfied constituents.
The only current level of appeal is to the Commonwealth to override ACT Legislation with all the deficiencies being canvassed. Perhaps other means could be established, such as a system of citizens initiated referenda on individual pieces of legislation. That might not be very suitable either.
However I would urge that this matter be given further and hopefully, more detailed consideration at some future time to ensure a better outcome than would be possible in the current foment.