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Thursday, 14 September 2006
Page: 90


Senator BOB BROWN (Leader of the Australian Greens) (3:32 PM) —I am pleased to open this debate on my private senator’s bill, the Australian Capital Territory (Self-Government) Amendment (Disallowance Power of the Commonwealth) Bill 2006, which amends the Australian Capital Territory (Self-Government) Act of 1988. As senators will know, not too long ago we were dealing with the override of the Australian Capital Territory legislature by the executive of the national government, the Howard government. The national government overrode the civil union legislation passed by the Australian Capital Territory’s Legislative Assembly. That outcome gave rise to today’s bill.

I have been in the Senate long enough to have seen both the Northern Territory legislation on euthanasia overridden in 1996—but that was by the passage of a bill through the parliament—and then the consequential override of the ACT legislature’s civil union legislation, a very different matter indeed. In the latter case the executive—that is, essentially, the Prime Minister’s office—effectively regulated under the terms of the Australian Capital Territory (Self-Government) Act 1988 to override a bill that had passed through the legislature of the Australian Capital Territory into law in the territory. It needs to be stated clearly for the record that the Stanhope government went to the last ACT election with a platform of bringing in the civil union law. The government was duly elected to office by nearly a quarter of a million voters of the Australian Capital Territory.

The Stanhope government was elected on a commitment to introduce legislation. It then introduced that legislation, which passed through the assembly and duly into law. The executive of the federal government, the Howard government, decided—without reference to the national parliament—that it would in turn regulate to override that legislation enacted by the Legislative Assembly of the Australian Capital Territory.

The problem here is that effectively that overrides section 122 of the Constitution, which gives this parliament the right to override laws of territories. The matter ought to have been referred to this parliament by the Howard government. But the Howard government did not do so. It took a disallowance motion from the Greens to cause a debate here in the Senate. The federal government, the Howard government, which has a majority—which Mr Howard assured us would not be used with hubris—then proceeded to use that majority to override the ACT’s law.

This bill is to prevent that from happening in the future. I want to make clear to senators who may not have looked at this as closely as I have that we cannot go outside the Australian Constitution, and the Constitution gives the parliament the right to override the laws of a territory. But in the modern era, in this year of 2006, where a territory legislature—be it the Northern Territory or the Australian Capital Territory—makes laws for its citizens, in consultation, as ever, with those citizens and subject to their rebuke at a future election, we can ensure that those laws cannot be overridden by the executive, by the Prime Minister, effectively deciding in his office that he will send a regulation to the assured signature of the Governor-General of the day to override the laws of the territories.

Senators will note that my bill refers only to the Australian Capital Territory, but it is my opinion that the same protection from the arrogant and high-handed intervention on their law-making process by a future executive here in Canberra should be given to the voters of the Northern Territory. The process ought to be that, if the national government of the day does not like a territory law, then it should refer it to the parliament. It should prepare a bill, and it should refer it to the national parliament for passage through both houses of parliament. If it gets assent there, then the territory law will be overridden. This is not a complicated matter. This is about two things: one, honouring the Constitution of this country; second, honouring democracy as practised by people wherever they are in this country, be they in the Australian Capital Territory or anywhere else.

It is far from democratic for a government—in this case the Howard government, which had no authority from the people of Australia, who had never been to an election on the matter of civil unions—to regulate to override the express wishes, the voting outcomes, of the people of the Australian Capital Territory without reference to the parliament. Let me anticipate an argument or two. Firstly, it will be argued: ‘What about the states? What about the Franklin campaign? Didn’t the federal government override the state there?’ Two things: firstly, that matter went to the High Court, and the High Court ruled that the external treaties power, which binds Australia to international law, empowered the Commonwealth over the state and its domestic laws that enabled it to build a dam. There was a competition between authorities, and the Constitution was read by the High Court to enable the federal government to protect World Heritage properties in this country from the destruction that would have come from the Franklin Dam.

The High Court was not ruling whether or not that was a good thing; it was ruling that the Constitution gave that power to the federal government. What I am saying here is consistent with that honouring of the Constitution. Section 122 of the Constitution says that, if a federal government wants to override a state, it should do so through the parliament—not, as I said, through the arrogance of an executive decision by a government in an interparliamentary period, hoping that there will be no reaction to that.

The second thing is in the matter of some future emergency. It is very careless—indeed, I think it is irresponsible—to put an argument that you must defend an abuse of the spirit of the Constitution because there may be some emergency situation which would warrant that. Let those who argue that case state exactly what they mean. It is a specious and fatuous argument to bring before this place. Let me say to those such as Senator Humphries, who may argue that they should have been consulted more about this: no, sir. He should have consulted more about this himself. Primarily, he should have consulted with his own electors and should have taken note of the voters of the Australian Capital Territory, who empowered the Stanhope government in the matter of civil unions, and a whole range of other matters, for the good governance of the Australian Capital Territory.

Senator Humphries has been in the position of Chief Minister and will know that an ACT assembly will be closer to the people of the ACT than a federal government can be. That is the nature of the democratic process. So it is very much a matter about which Senator Humphries knows full well the ins and outs. He has had my second reading contribution with him since this bill was brought in in June this year, and I am now putting the argument that is so strongly in favour of this legislation passing through the parliament.

I am very aware that this legislation ought to pass the Senate this afternoon with the support of Senator Humphries and at least his National Party colleagues, who are quite devoted to empowering regional Australia and to not allowing the concentration of power to go more and more into the hands of fewer and fewer people. So there is a real test here of consistency of argument, of honouring ideals put forward by those voted in on the other side to look after regional representation.

Let me reiterate that the overriding of the civil unions legislation—which had been passed by the ACT—by the Howard government executive was arrogant and undemocratic. It was a ruthless use of power, without consultation with either the people of the ACT or either house of this parliament. It would be extraordinarily inconsistent for any member—Senator Humphries or anybody else—to have voted against that override under those circumstances yet vote against this bill, which would prevent that happening in a future circumstance.


Senator McGauran —It’s unconstitutional.


Senator BOB BROWN —We have a poorly informed transferee from the National Party to the Liberal ranks saying that it is unconstitutional. He should read section 122 of the Constitution. I would expect not much better from him; I do expect better from representatives of the ACT.

This is important democratic legislation; this is safeguard legislation; it is quintessential Senate legislation. The Senate was set up to defend the interests of the states and ipso facto the interests of the two territories which have emerged since the formulation of the Commonwealth by the founding fathers now more than 100 years ago. This is the Senate’s business. The Senate should be upholding the interests of people at state and territory level. This legislation does just that. I recommend it to the Senate and look forward to support from both sides of the Senate in seeing the passage of this legislation this afternoon.