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Thursday, 18 August 2011
Page: 4793


Senator BOB BROWN (TasmaniaLeader of the Australian Greens) (10:53): I thank all contributors to the debate on this very important piece of legislation to foster improved democratic rights for the citizens of the Australian Capital Territory and the Northern Territory. I will not go over in detail the reasons for the Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Commonwealth) Bill 2010 because it has already been before the parliament and indeed through a thorough committee process, with the committee having endorsed the bill as it comes before the Senate today.

I note that there will be a number of amendments from the government. These reflect amendments that the Greens also had drawn up, and we will simply support the government amendments, which have the effect of extending this legislation to give the advantages of it to the voters of the Northern Territory and which cover some other related matters.

The Constitution says in section 122, with the headline 'Government of territories':

The Parliament—

it refers to this parliament, of course—

may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth—

and that is what is in process here today. A couple of decades ago this same parliament legislated to transfer its power under the Constitution to make laws for the territories to the executive—that is, the minister of the day. As has been noted in public debate, that means that with the stroke of a pen a minister can override the outcome of a deliberated vote following a debate of the elected representatives of the assemblies either in Canberra, in relation to the ACT, or in Darwin, in relation to the Northern Territory. This bill simply goes back to where the Constitution would have it—that is, the territories will effectively legislate unless or until a vote of both houses of parliament overrules legislation or passes legislation for either of the territories. We cannot change that provision of section 122 or section 123, which also deals with limitations on the powers of the states, unless we go to a referendum.

There is the prospect that the Northern Territory, which I think is moving in that direction again, will eventually end up subject to a referendum. I would not discount the possibility, as others have, that in some future time Australians might want to give the growing population of the Australian Capital Territory the ability to have self-determination through a form of statehood which will provide for all the amenities of this being the national capital but will provide for enhanced powers for the people of the Australian Capital Territory. That is a matter for a future debate.

This legislation today simply restores at least the right of the assemblies to pass legislation for their citizens without being overridden by a minister without reference to this parliament. It is as simple as that. I take on board the issues of equal marriage and euthanasia that have been raised in here by the opposition today, but they know full well—Senator Humphries knows very well—that this legislation does not alter that. In fact, it enhances the powers of the Australian Capital Territory to legislate at least in the matter of equal marriage, if it wants to, but that is entirely a matter for the territory, as it is a matter for New South Wales, South Australia, Queensland, Western Australia and Tasmania.

Senator Cormann: Equal marriage—so here we go; here we have it.

Senator BOB BROWN: Senator Cormann interrupts. If he does not think that is a right that the people of the Northern Territory or the ACT should have and if the opposition in this place wants to have that right withheld from the people of the territories, it is flying in the face of its own history, because it was Mr Kevin Andrews who brought in the legislation that overrode the ability of the territories to legislate in the matter of euthanasia back in 1996, and it was passed by both these houses. That is a prohibition which is not altered by this legislation today. That prohibition, which was supported by a free vote of both chambers—I voted against it, but it was still supported by a free vote of both chambers, with a majority of three, as I recollect, in the Senate—will remain on the Northern Territory assembly and on the ACT assembly unless or until some future vote of this parliament changes it. In that sense, this does not restore or give the measure of equality of the territories with the states that you might think at the outset.

I notice that Senator Brandis has said this morning that the opposition does not have the problem with equal marriage that the government has because it is unified—it is en bloc opposed to it. I had not heard that before. That is news, and I am surprised—

Senator Brandis: It's always been our policy.

Senator BOB BROWN: Senator Brandis repeats that it is the case that within the Liberal Party—note the name—members do not have the ability to have a free vote on what should be a matter of conscience. But that is up to that party and its several members to determine; it is not a matter which relates to this vote today. This legisla­tion is important in enhancing democracy. It is one of the four pillars of the Greens party's established philosophy that we do enhance democracy where we can. I notice some criticism that I have moved in the past to have the parliament—never to have a minister but to have the parliament—use these powers to, for example, override the locking up of Aboriginal children in jail in the Northern Territory because they stole biscuits. We will remember the outcome of that, which was that the legislation did pass the Senate. It went to the House and then Prime Minister Howard contacted the Chief Minister of the Northern Territory and offered the funding which ceased that practice of locking up Indigenous children, which had led to a horrible outcome regarding one child. It has not occurred since then, so it was an outcome which was worth while at that time. The ability of the parlia­ment to legislate or to put pressure upon the territories remains under this legislation. There is nothing inconsistent with my behaviour in wanting good outcomes and the proposal that is before the Senate today.

That said, we will oppose Senator Humphries's effort to not have this bill considered. I would have thought voting it down is one thing; to try and put it on the never-never and come to no conclusion, as Senator Humphries wants to do, to leave the voters of the ACT and the Northern Territory in limbo, would be the worst outcome possible. It is bucking the need for there to be a determination. Finally, I thank the chief ministers of both territories for their support, and most recently Katy Gallagher, the Chief Minister of the Australian Capital Territory. She has written to all members saying:

The Committee—

she is referring to the Senate committee—

has recognised that our Assembly and its Members have "demonstrated a high level of maturity and competence over many years". I believe, as you do, that it is time the ACT's self-government arrangements reflected this and it is my sincere hope that you will support the passage of this Bill to allow the citizens of the ACT to have their views represented in a legitimate, democratic parliament—the birthright of all Australians.

I could not put it better myself. I look forward to this legislation passing this place and hopefully passing the House of Repre­sentatives so that it will soon pass into law. Question put:

That the amendment (Senator Humphries's) be agreed to.

The Senate divided. [11:07]

(The President—Senator the Hon. JJ Hogg)

Question negatived.

Original question agreed to.

Bill read a second time.