WHILE Federal Parliament debated the ACT’s right the legislate about euthanasia this week, another, perhaps more important, ACT matter also remains under federal control: the size of our Parliament. The two questions highlight the need for a bit of tweaking of what is, in effect, the ACT’s Constitution – the Commonwealth Australian Capital Territory Self-Government Act.
The Act sets up the Assembly, stipulating that it have 17 members, and gives it power to make laws generally – for the “good government” of the ACT.
But it permits the Federal Parliament to add exceptions, which it has done so in the case of euthanasia. It also permits the Governor-General, in effect,the Minister for the Territories, to disallow any law enacted by the Act Legislative Assembly.
So it is not quite a grant of statehood. Nor should it ever be because the Federal Parliament should always control federal-capital aspects of Canberra. Nonetheless, self-government is a fundamental right and duty. So the people who live in and around the capital should be in a similar position to people in the other states.
So, unless there is a federal-capital matter, the Commonwealth Parliament and Executive should stay out of ACT affairs. If they make laws across Australia, including the ACT, using whatever power they have in the Constitution, that’s fine. But singling out the ACT or Northern Territory for special interference is obnoxious and demeaning. It says we are not capable of self-government, when plainly the ACT is as capable of it as any other state, particularly NSW.
Unfortunately, the euthanasia debate got side-tracked. Senator Bob Brown’s Bill, did not provide for euthanasia. It merely gave the ACT and Northern Territory Parliaments the same power over it as the other six state Parliaments.
But many intellectually ill-equipped MPs are still against it on the basis of opposition to euthanasia, even though they are comfortable with the South Australian or Victoria Parliaments having that power.
The question of the size of the ACT Assembly is almost certainly bound to be similarly side-tracked. Eventually, the question must come up again. The size of the Assembly has not changed in the 21 years of self-government. Since then population, governmental complexity, and the economy have grown.
In any event, 17 was too small from the outset. We do not have enough MLAs for any reasonable choice for the frontbenches and other key positions. Inevitably some MLAs hold posts for which they are poorly equipped.
The self-government Act provides that the number can be increased by a Federal Government regulation after a resolution of the Assembly. So the Federal Government in effect has a veto because it is not compelled to make the regulation. Further, even if it did the Senate, can disallow any regulation made under any federal Act.
That is significant because, in effect, it gives the Greens and Coalition (combined) in the Senate a veto over any increase in the Assembly’s size.
Both will look to their political advantage and disadvantage before permitting it.
Bear in mind that, though Labor and Greens agree on many things, they have often been bitter opponents on electoral matters.
At present, the Assembly has one seven-member and two five-member electorates. Any number of combinations suggest themselves in an increased Assembly: five of five members; three of seven members; various mixes of five- and seven-member electorates.
The matter is complicated further by other provisions in the self-government Act and entrenched provisions of the ACT electoral law. These requiring multi-member electorates and an odd number of members in each electorate.
So it seems a bit silly to argue the case for an increase in the Assembly to the federal minister and in the Assembly itself only to have to repeat the exercise at some later date.
There seems a better case for all the questions about the size of the Assembly, the electoral system and the like to be dealt with in the ACT alone and have no federal role – as it is in the six states.
That does not mean having a simple majority of the Assembly to deal with these things. History reveals numerous incidents of attempted system rigging by both parties.
Rather, the key elements of the existing electoral set-up should be regarded as “constitutional” provisions requiring some sort of special majority of the Assembly or a referendum to change.
In a way, this is what happened in 1901 with the Federal Constitution. It started as an Act of the mother Parliament but it provided a separate method of altering it, rather than going back to the mother parliament.
One can argue whether the amending mechanism was too onerous, but the principle still holds. It would be absurd for Australia to have to go to the British Parliament to amend its constitution. It is equally absurd for the ACT to be forced to go to the Federal Parliament to amend the ACT Constitution.
The ACT has demonstrated its capacity for self-government over the past 21 years. It is no worse than the other states, and probably a lot better than some.
Indeed, the ACT has the advantage of being more easily able to draw on Federal administrative experience because public servants can easily move between the Federal and ACT systems without having to move house or change working conditions.
This may be a factor in the relative cleanliness of government at the state/territory level here.
All that aide, if the question of the size of the Assembly is moved out of the Federal sphere, stalemate might still ensue. With a special majority or a referendum required, you would most likely have to get agreement among the three parties: Labor, Liberal and Greens.
Sometimes Labor does better in five-member electorates (2004 was a good example when it got three members in each of the five-member electorates), and sometimes poorly (it got only two in each in 2008). That’s why Labor liked the idea of five five-member electorates between 2004 and 2008 but has been more muted since.
No major party has ever managed four out of the seven seats in Molonglo, but. on average, the Greens and Independents do better in seven-member electorates.
We still should have multi-member electorates because single-member electorates in a relatively homogeneous place like the ACT would often result in clean sweeps or huge unhealthy majorities by the winning major party – as booth-by-booth of the past four elections reveal. In 2004, for example, Labor would have won all 17 seats.
Anyway, if carriage of the system is moved to the ACT, the existing MLAs would have an incentive to compromise. Without compromise the size of the Assembly will remain at 17 and they will get an ever increasing workload to the detriment of good government.
Pruning down administrative costs can often be a false economy.
CRISPIN HULL
This article first appeared in The Canberra Times on 27 November 2010