No rights for territories

Legally and constitutionally, the Federal Parliament has the power to overturn the ACT’s laws which provide that a person caught with illicit drugs within an allowable amount will either be given a $100 fine or be sent to a diversion program.

The question is should it, or should it respect the democratic will of the people of the ACT as expressed in the laws passed by the ACT Legislative Assembly?

The drug issue has remained under the carpet for some months, until it became fairly widely known that law was to come into effect next month. Then the moral outrage began. The Coalition said it would introduce a Bill into the Commonwealth Parliament to reverse the law.

It was classic busybodyism made worse by the fact that the Coalition has exactly zero members of either House of the Federal Parliament from the ACT.

It immediately raised howls of support for territory “rights”.

But the territory has no rights, unlike the states.

The Constitution sets out the heads of power of the Commonwealth Parliament, including such things as defence, foreign affairs, corporations, tax, international trade, and so on. Anything not listed or not acted upon by the Commonwealth Parliament remains within the power of the states. The states can object by action in the High Court to any Commonwealth legislation that it asserts does not falls within the constitutional list of powers.

The territories cannot do that. The Constitution provides that the Commonwealth Parliament ha unlimited power to make laws for the government of the territories (both the internal ones – the ACT, Jervis Bay and the Northern Territory – and the external ones like Norfolk Island, Christmas Island and so on).

As it happens, the Commonwealth Parliament has legislated for the ACT to have self-government. But what the Commonwealth gives, it can also take away – in full or in part.

So, the law and constitutional matters are straightforward. The Commonwealth can override any territory legislation, in a way that it cannot override any state legislation, unless it can show that it falls under one of the heads of power of the Commonwealth Parliament set out the Constitution. Then the state legislation has no effect to the extent of the inconsistency.

Territory rights are not a legal or constitutional reality. They are no more than an appeal to democratic spirit.

The urge to walk over the appeal to democratic spirit has invariably come from the conservative side of politics and has invariably involved moral and religious questions: same-sex marriage, assisted dying, and the takeover of Calvary Hospital are the stand-outs. 

Usually, in the Coalition, moral outrage against socially liberal laws trumps democratic spirit. But not always. When Gary Humphries was a Liberal ACT Senator (2003-2013), he always supported the principle that the Federal Parliament should not interfere with the ACT’s power over things like assisted dying, even though he was personally against it.

His stand probably cost him a frontbench position.

The democratic test for the circumstances in which the Commonwealth Parliament should be able to interfere with the territory’s legislative ambit are fairly clear. The first is: would the Commonwealth have the power to act in the same way against state legislation? The second is: does the Commonwealth have a special interest in the effect any ACT legislation might have on Canberra’s position as national capital.

The second test should be more specific that the extended moral outrage that we can’t possibly have Canberra branded as the drug capital, as Liberal WA Senator and former Attorney-General Michaelia has argued.

So where does the new ACT law – which in effect, decriminalises the possession (but not the supplying) of the most common recreational drugs cocaine, ecstasy (MDMA), ice, heroin, LSD, and amphetamines – sit.

The Commonwealth Parliament has legislated to criminalise drug dealing and drug possession. It has done so using its international-trade power. The drugs are prohibited imports. But there is no importation element to the ACT decriminalisation. It is very difficult to prove the essential federal element of importation in a street-level case of mere possession of a small quantity of drugs.

This is very different from same-sex marriage where the Commonwealth at the time of the Howard Government had a clear intent to restrict marriage to a man and a woman. That law applied equally to the states. Though an earlier ACT marriage law was specifically overridden.

The latest Coalition move against the ACT’s progressive drug law, however, is not a case of the majority of the Commonwealth Parliament (that is, in effect, the Government) pursuing some national, federal policy. It will never pass either House.

It is just show and grandstanding using the ACT as a whipping boy for Coalition politicians to prove their conservative credentials to their conservative electorates. 

The people of the ACT should be left to govern themselves, unless there is some clear policy which the Commonwealth would also apply to the states. Just because it has got the power to lord it over the self-governing territories with respect the whole legislative gamut does not mean that it should exercise that power.

Crispin Hull

This article first appeared in The Canberra Times and rother Australian media on 15 September 2023.

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