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AUSTRALIAN CAPITAL TERRITORY (SELF-GOVERNMENT) AMENDMENT (DISALLOWANCE POWER OF THE COMMONWEALTH) BILL 2006
- Parl No.
- Question No.
Carr, Sen Kim
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- AUSTRALIAN CAPITAL TERRITORY (SELF-GOVERNMENT) AMENDMENT (DISALLOWANCE POWER OF THE COMMONWEALTH) BILL 2006
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Thursday, 14 September 2006
Senator CARR (3:45 PM) —The opposition will be supporting the Australian Capital Territory (Self-Government) Amendment (Disallowance Power of the Commonwealth) Bill 2006 on the basis that we believe that, if self-government is to mean anything, local parliaments have to be held accountable for the actions they take and that it is inappropriate for governments to seek, in a burst of political populism, to slither down to Yarralumla in the dead of night to have executive fiats imposed upon the people of the Australian Capital Territory. I say that in a context where it is abundantly clear that the actions taken by this government were aimed at the broader domestic political agenda in regard to debates on the question of homosexuality rather than on any serious discussion of the legal or the constitutional issues that were posed by the legislation that had been passed by the Australian Capital Territory government.
The nature and context of the controversy have to be understood if we are to examine the base political motives of the government in seeking to use this particular dispute as a means of exercising its executive power. I say that because it is my firm belief that the government lacked the courage to pursue its agenda through its own party room. If the government had been serious about the claims it was making in regard to the civil unions legislation of the government of the Australian Capital Territory, it would have moved a bill in the Commonwealth Parliament of Australia and it would have allowed its own members to vote on that bill. I am of the opinion that such legislation was not proceeded with because the government was not confident that it could rely upon its own members. It was a device that was being pursued by Mr Ruddock, in my judgement at the behest of the Prime Minister, with a view to extracting momentary political advantage on the question of whether or not civil unions could be pursued, when the real bottom line on this was the government’s hostility to homosexuality. The government would not be so crude as to come out and put that case formally and publicly because that is not the way this government operates. It operates on the basis of seeking to exploit fears and insecurities in the community, rather than debating issues of fundamental human rights.
The government of the Australian Capital Territory took a position to the electorate; it had a mandate to act and it sought to pass legislation acting upon that mandate. Furthermore, the government of the Australian Capital Territory sought to make very clear that it was not seeking to breach the Constitution. It said to the Commonwealth of Australia: ‘If you can demonstrate that that case is incorrect, we will amend the legislation still further.’ Those offers were never taken up because it did not suit the political agenda of John Howard for there to be legislation in the Australian Capital Territory concerning civil unions. It suited his political purpose for there to be this dead-of-night ambush by way of a governor-general disallowing ACT legislation, which, of course, the government sought to exploit for its base political motives.
In this particular legislation the objects of the bill are straightforward. This bill seeks to remove the Governor-General’s power to disallow an act passed by the Australian Capital Territory Legislative Assembly and seeks to reiterate the principle of the primacy of the Australian Capital Territory’s Legislative Assembly in making laws for the Australian Capital Territory. I take the view that, where the territory’s powers are exercised in accordance with the Constitution and in accordance with the appropriate legal framework, it is entitled to make those laws. We have a very basic principle here, however, that the government in the Australian Capital Territory has to take responsibility for the laws it passes. It has to defend its own actions. It does that on the same basis on which all other parliaments in this country operate—that is, they have to face elections. That is how questions of accountability are resolved. There is an appropriate mechanism, so long as the parliament acts within the parameters of its normal powers. I take the view that, if a democratically elected parliament runs the gauntlet of an electoral process and acts within power, then it is entitled to hold itself accountable at the next election in that jurisdiction. That is a proposition which, frankly, I find unarguable.
If the argument genuinely was that the government of the Australian Capital Territory had exceeded its powers, then legislation should have been brought into this chamber and into the House of Representatives and then we could pass judgement on that basis. I think that is an appropriate course of action. If that is what the government genuinely believes, if it believes there are fundamental human rights, for instance, that are being put at risk or there is a matter of urgency, legislation can still be moved through the two chambers quite quickly. But it does not give any justification for slipping off down to Yarralumla to stick the shiv into the local government, put out a press release and make out what big fellows you are in an attempt to search out particular views, homophobic views, within this country.
The self-government act here has been in operation now for 20 years, and it is entirely appropriate that elements of the legislation should come under review and their continuing utility be examined. There are a number of standard measures that seem to me to be of use in evaluating the continuing benefits of the clauses empowering the Governor-General to disallow Australian Capital Territory legislation. I will mention just three. Firstly, you could argue whether or not particular legislation or a section of legislation is equitable and based on the recognition of the rights of citizens of the Commonwealth of Australia. It could be argued, secondly, whether or not it meets the spirit as well as the letter of particular pieces of legislation and, thirdly, whether it serves to promote good public policy and governance. But it is my contention that the disallowance powers of the Australian Capital Territory (Self-government) Act fail on all those tests. That is what needs to be assessed.
It has to be the case that under the present legal arrangements some Australian citizens, the citizens of the Australian Capital Territory and the citizens of the Northern Territory, are operating on a different standard of governance from the rest of the country. There are sanctions that can be applied to their local parliaments that are not applied to the rest of the Commonwealth. It strikes me that the present legal framework effectively discriminates against citizens in the Australian Capital Territory. If Senator Brown’s bill were carried by this chamber and of course the House of Representatives, it essentially would provide for genuine self-government of the Australian Capital Territory. If self-government of the Australian Capital Territory is to have any meaning at all, then the Australian Capital Territory legislature must have the right to determine its own policies within the parameters of its own authority. It strikes me that the present arrangements do not allow that to occur.
If we look at the sorts of interventions that have jeopardised the right of Australian Capital Territory electors to consider issues of social, cultural or economic importance and subsequently to collectively express their judgement on such matters through the ballot box, then we see we have a situation where the current law does not allow Australian citizens in the Australian Capital Territory to do that. Equally important is the point that needs to be made time and again: such power that currently exists compromises the rights of citizens in the Australian Capital Territory to hold their own governments accountable for actions that are taken.
It seems that the golden vote that is being reserved for the Governor-General—and I think Senator Bob Brown is quite right when he says that effectively means that the Prime Minister and government invoke their own discretionary, discriminatory capacities—is a matter of deep concern. It is a very lazy way to govern. It is a lazy way to hold governments accountable.
We are in the situation where the Howard government is increasingly seeking to interfere in the rights of the parliaments around this Commonwealth, but this is above and beyond that. We see it in the actions taken with regard to hospitals and schools, through to all aspects of the constitutionally legitimate functions of state governments. This is probably one of the most centralised or centralist governments in Australian history. It is an irony, because it is well known on this side of the parliament that there is quite considerable sympathy for national programs, for national consistency, for nation-building.
I must say that what I have seen in recent times, in terms of the interventions this government has made on what are traditionally regarded as the legitimate functions of state governments, is beyond all comparison with previous governments. There is hardly an area of state government activity in which the Commonwealth of Australia is now not seeking to intervene—hardly an area that I can think of. But we have a situation here in the Australian Capital Territory where, as I say, you can slither off down to Adelaide Avenue, out to Yarralumla, and put in a quick fix in the middle of the night without trying to actually address any serious public policy debate.
If the Commonwealth is genuinely concerned, if it thinks that the actions of a territory are inappropriate or outside its due legal powers, there are avenues that ought be available to it. I say: if the government felt that the marriage provisions of the Constitution—which everyone acknowledges are a Commonwealth responsibility—had genuinely been challenged by the ACT, it should have had the guts, the courage of its convictions, to bring a piece of legislation into this chamber.
When the situation arose with the euthanasia debate, the government made arrangements for a private member’s bill to be brought in. I did not support that private member’s bill, because I thought the Northern Territory was entitled to make laws on euthanasia. But I will say this about that piece of legislation introduced some years ago: at least there was a debate and a vote in the two chambers of this parliament. A case had to be made for why the override existed. It was a situation in which the Australian government and the Australian parliament could be held accountable for their actions. The government had to make a case—and it said, of course, that it was a private member’s bill; we all know what the view of the government was—and win a vote in this parliament.
Frankly, that is not the style of this government of recent times. We have seen a deterioration in standards over the 10 long years of the Howard government. They are much better now at doing the backroom deal to put in the quick fix than they are at public debates and trying to bring the public with them. What they are seeking to do is to exploit an emotive response and abuse the process available to them.
It is true that the need to invoke the power of disallowance is premised on the presumption of a failure of discussions and negotiation. I also take the view that the government went out to deliberately ensure failure of the discussion, debate and negotiation with the Stanhope government. You would expect that there would be a presumption of rational debate, but there is no way that that case can be made in terms of the correspondence that is now publicly available between Minister Ruddock and various ministers of the government of the Australian Capital Territory.
It is abundantly clear from the history of the past decade that this government has increasingly sought to impose its will upon the states and territories for the most mercurial of reasons. Time and time again we have seen an unwillingness to debate the benefits of legislation, or even of national programs. Whether it be flagpoles in schools or other forms of divisiveness—incitement, in fact—across a range of programs, the government does not actually want to see debate unless it registers in the focus groups first. Increasingly that is where the debate happens. It is through polling and focus-group responses so that the government seeks to pursue agendas it believes will enhance its overall political position.
The bill Senator Bob Brown has put before us today, in my opinion, does not compromise the capacity of the Commonwealth parliament to exercise its authority and its judgement in its legitimate spheres of influence and responsibility; nor does it compromise the ability of this parliament to operate, as it should, as the national guarantor of the human rights and wellbeing of Australian citizens. These are our fundamental responsibilities: to ensure the protection of citizens no matter where they live.
I fully acknowledge the possibility that, from time to time, governments do the wrong thing and do abuse human rights and may well in the future abuse human rights. There has to be protection to ensure that the legitimacy and equality of Australian citizens are protected. I say the way to do that is through deliberative legislative instruments.
The political compact that we call the Australian system of government must extend to allowing Australians the right to elect their governments—state, federal and territory—and to allow those governments to implement the platforms on which they are elected within their province of power. There cannot be a double jeopardy arrangement whereby the Governor-General has the right of disallowance over territory legislation without reference to parliamentary debate or parliamentary instruments. The fact that such a provision exists means there can be a partial and discriminatory exercise of executive power. Such a circumstance is incompatible with our legitimate right to protect the citizens of this country. Labor supports this proposed bill to remove the disallowance power over the Australian Capital Territory.