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Monday, 31 October 2011
Page: 12090


Mr CREAN (HothamMinister for Regional Australia, Regional Development and Local Government and Minister for the Arts) (18:32): I rise to support the Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Bill 2011. This bill, as amended by the government in the Senate, is good for Australian democracy. It is about strengthening the democratic rights of the Northern Territory and the ACT parliaments and thereby their people. The government do not support overriding the decisions of the territories with the stroke of a ministerial pen. We made that clear in 2006 and we reaffirm it today. By removing the power of the Commonwealth executive to disallow legislation enacted in the ACT and the Northern Territory at the stroke of a pen, this bill recognises the maturity of the legislatures in these self-governing territories. The ACT and Northern Territory were created by acts of this parliament. Their legislatures are rightly subject to the deliberations of this parliament not unilateral actions of the executive.

There has been a lot of debate about the purpose of this bill. On 2 March, the bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee for consideration. That committee reported back on 4 May. The inquiry strongly supported the removal of the Commonwealth's powers to disallow ACT and Northern Territory legislation, and leaving the parliamentary process as the means of exercising Commonwealth influence over ACT and Northern Territory legislation. The inquiry concluded:

… a parliamentary process is more in keeping with a sound democratic practice.

That conclusion reflects the advice also of expert bodies such as the Law Council of Australia, who pointed out in their submission that while the current bill does not completely remove the power of the Commonwealth to override territory laws, it enhances the democratic quality of this process by requiring that parliament consider and take responsibility for the decision to override rather than the executive.

The inquiry did not recommend extending the operation of the bill to Norfolk Island. That decision was in recognition of the differences between Norfolk Island and the other self-governing territories. Norfolk Island's population of 2,100 is much smaller than the ACT and the Northern Territory. Also, as members would be aware, the passage of the Territories Law Reform Act 2010 provides the Commonwealth with increased oversight and scrutiny of Norfolk Island legislation to ensure that it is consistent with the national interest. In view of these reforms, it would be inconsistent for the bill to apply to Norfolk Island.

This bill was then reviewed by the House Standing Committee on Social Policy and Legal Affairs. They found that the Senate inquiry was extensive and the bill was well scrutinised. They recommended that this House pass the bill. The bill reflects the inquiry's conclusions and those of many of the substantive submissions received by the committee. These submissions expressed a clear preference for a parliamentary rather than an executive override of territory legislation. On 18 August 2011, the Senate approved the following government amendments to the bill, consistent with the inquiry's recommendations: first, removal of references in clause 4 to providing relevant territory legislatures with exclusive legislative authority and responsibility for making laws; second, changing clause 4 to more accurately reflect the current power of the Governor-General to recommend amendments to territory laws; and, third, excluding Norfolk Island from the operation of the bill. While the bill supports greater legislative independence for the ACT and Northern Territory, it will not stop the Australian government acting in the national interest in an open and transparent way should there be a conflict between Commonwealth and territory legislation. The Commonwealth parliament's plenary power under section 122 of the Constitution to make laws for the government of any territory will remain unchanged. This power allows the Commonwealth legislature to override legislation passed by the legislative assemblies and can be exercised through a parliamentary process in accordance with sound democratic practice.

The government's position, given that this issue has been raised as well, on same-sex marriage is also unchanged. Under the Marriage Act, a Commonwealth act, marriage means the union of a man and a woman to the exclusion of all others voluntarily entered into for life. The act also sets out certain requirements in relation to marriage ceremonies. As a Commonwealth law, the Marriage Act will override any inconsistent state or territory law to the extent of that inconsistency. This means that no state or territory can enact its own law to define marriage or any law that would otherwise be inconsistent with the Commonwealth Marriage Act.

Nor is this bill about euthanasia. Members of this House will be aware that the territories are prevented from enacting euthanasia laws by the Euthanasia Laws Act 1997. Members will also be aware there is another privately sponsored bill that has been introduced in the Senate regarding euthanasia, and we will have an opportunity to debate that another time.

Through its support for this bill, the government is demonstrating its commitment to a key finding of the inquiry:

… removal of the anachronistic features in sections 35 and 9, respectively, of the ACT and NT self-government Acts would be a significant step forward in their constitutional history …

As the inquiry noted, support of the bill by this parliament will provide a powerful demonstration of the Commonwealth's genuine respect for the delegation of law-making powers that it made when it granted self-government to the Northern Territory and to the ACT in 1978 and 1988 respectively.

The Northern Territory and ACT were granted self-government well over 20 years ago, and over that period the two assemblies have displayed considerable maturity and capacity to run their affairs. Indeed as Professor George Williams has pointed out:

… the ACT and the Northern Territory both have a larger population, and a better functioning system of self government, than some of the colonies that became states upon Federation in 1901.

In the case of the ACT, few could have imagined its evolution since it was granted self-government in 1988 some 10 years after a 63 per cent 'no' vote against self-government. The ACT was transformed into a fully functional, self-governing territory with a vibrant and engaged community and a legislative assembly that is recognised as a regional leader and an important contributor to federal forums. In the Northern Territory, the success of self-government is best evidenced by the current process towards statehood.

To support genuine self-government within these territories, the Commonwealth parliament must enable the ACT and Northern Territory legislative assemblies to be independent, responsible and accountable to their citizens. This means not being subject to the whim of a minister, and this bill will achieve that objective.

The opposition has argued that the bill should not proceed. The opposition, while expressing its in-principle support for greater legislative independence for Australia's self-governing territories, has argued that the bill should not proceed and a more systematic and comprehensive approach would be preferred.

I want to be clear about the government's position. The issues raised in the Senate amendments moved by the opposition were canvassed in the inquiry to the bill. The inquiry concluded that the benefits of the bill in enhancing democracy in the ACT and Northern Territory outweigh any potential disadvantages that may flow from its application. The passage of the bill would provide just recognition of the maturity and capacity that the ACT and Northern Territory legislative assemblies have demonstrated since they attained self-government.

The Australian government has already indicated to the ACT government that it would welcome a review of the ACT (Self-Government) Act, but such a review should be driven by the ACT government and its citizens. The Australian government would welcome considering the outcomes of such a review. The timing of a comprehensive review should not delay the implementation of the practical, democratic benefits provided by this bill. I note also that both the ACT Chief Minister and the Northern Territory Chief Minister are on the record supporting the bill.

Experts such as Associate Professor Tom Faunce from the Australian National University in their submissions to the Senate inquiry advocated passage of the bill. In his submission he argued:

Repealing section 35 of the ACT (Self-Government) Act is a measure that can and should be taken now … The geographical accident of being resident in a Territory should not be a ground for discrimination in terms of basic rights under the Australian Constitution.

Professor Cheryl Saunders from Melbourne Law School supported the bill—and I quote her saying:

… as an overdue change to correct what has become an anachronism in the Australian system of government.

I am aware that the opposition has moved two lots of amendments—some were circulated earlier—to the effect that the ACT and Northern Territory legislative assemblies may not enact a law that is inconsistent with the Marriage Act. I have already addressed that point but these amendments replicate amendments in the Senate. They were moved then by Senator Brandis. We did not support them then; we are not supporting them now. The opposition amendments in the Senate and in here are absolutely unnecessary. The legal advice from the Attorney-General is clear on the issue. The government's clear legal advice is that the amendments are unnecessary. It is already the case that any territory law inconsistent with the Commonwealth law on marriage, just as with any other subject, would be invalid. The Commonwealth parliament has the broadest possible power under section 122 of the Constitution to make laws for the government of any territory. In other words, this parliament could use that power to override any territory law, even a territory law that is not currently inconsistent. It could do that by making a new law, but that is a decision the parliament would have to make; it should not be done through the whim of a ministerial pen.

The territories cannot make laws that are inconsistent with the Commonwealth Marriage Act or any other Commonwealth law, and the position will not change if the bill is passed. The repeal of section 35 of the Australian Capital Territory (Self-Government) Act and section 9 of the Northern Territory (Self-Government) Act will not affect the Commonwealth parliament's power to enact legislation which is inconsistent with ACT or Northern Territory legislation.

I note also that the member for Solomon has moved another amendment. It had not been circulated before. This is interesting because at the last minute she tables an amendment while at the same time arguing that there should be systematic examination of the bill. If there is to be systematic examination, one would have thought these amendments could have been circulated somewhat earlier. One can only conclude that this is another attempt to stall. You say as an opposition that you are not playing around, but all of your actions and all of the amendments say that you are. The bill as it stands does not change constitutional arrangements. The Senate committee recommended this bill pass the parliament. I would be interested to know, given the views of the Territorians that the member for Solomon claims to talk about, how she is going to explain to her constituents in the Territory that she has ignored the wishes of their legislature and does not recognise properly the legislative assembly's ability to be overridden only by an act of the parliament. (Time expired)