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Monday, 31 October 2011
Page: 12080


Mr BANDT (Melbourne) (17:50): I present the explanatory memorandum for this bill and I move:

That this bill be now read a second time.

Democracy is not fixed and set. There is no blueprint which we have to follow. Democracy evolves and the meaning that is given to democracy changes over time. But what does not change is the core value at the centre of democracy. That core value can be summarised in this way: the people will decide how and by whom they are governed. In other words, the people will have and enjoy a right to self-government. And that is what this bill is about. It is about giving real self-government to the people of the Australian Capital Territory and the people of the Northern Territory. It is about removing the power of the minister to trample on the democratic rights of citizens of the ACT and the NT and it is about taking the next step in the evolution of our democracy in Australia. I am very proud to be moving this bill, which is an initiative of the Australian Greens to give the citizens of the Australian Capital Territory and the Northern Territory equal constitutional rights. If it passes today it will be the first bill initiated by the Australian Greens to pass the parliament. In particular I want to pay tribute to the leadership of Senator Bob Brown with his longstanding campaign leading the parliamentary process on territories' rights. I hope all parliamentarians will get behind this bill, which has already passed the Senate in an amended form.

The bill, the Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Bill 2011, has been through an exhaustive debate and inquiry in the Senate. It has been improved by amendments negotiated between the government and the Australian Greens, and I hope it will soon become law. The Constitution says in section 122, with the headline 'Government of territories':

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

That is what is in process here today.

A couple of decades ago this same parliament under the Constitution to make laws for the territories, legislated to transfer its power to the executive—that is, the minister of the day. This 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 of 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 at some future time Australians might want to give the growing population of the ACT the ability to have self-determination through a form of statehood which would provide for all the amenities of this being the national capital but also provide for enhanced powers for the people of the Australian Capital Territory. That is a matter for 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. It does not, as some who have attempted to run a scare campaign on this issue have suggested, refer to equal marriage or euthanasia. In fact, it enhances the powers of the territories to legislate at least in the matter of equal marriage if it wants to, but that is entirely a matter for the territory, just as it is a matter for New South Wales, South Australian, Queensland, Western Australian and Tasmanian parliaments. But it will not allow territories to enact legislation on euthanasia because the Andrews bill, passed by this parliament and opposed by the Australian Greens, is still in force and would prevent it. So the scare campaign by the opposition is simply misdirected.

So that the opposition is absolutely clear about what this bill does and does not do, I will outline in some detail the features of the bill and the process that has led us here. The bill amends the Australian Capital Territory (Self-Government) Act 1988 to repeal the provision which enables the Governor-General to disallow and recommend amendments to any act made by the ACT Legislative Assembly. The bill, along with amendments circulated by Senator Brown extending the operation of the bill to the Northern Territory and Norfolk Island, was considered by the Senate Legal and Constitutional Affairs Committee. The majority report of the committee recommended the bill be extended to the Northern Territory but not Norfolk Island and that the objects clause of the bill be amended to better reflect the content of the bill. A dissenting report by the Liberal members on the committee expressed their opposition to the amendments.

During debate in the Senate on the bill, the government moved amendments which had been agreed with the Australian Greens. The amendments did the following: changed the title to the Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Bill 2011, amended the objects clause to more accurately represent the objects of the bill, and repealed similar provisions in the Northern Territory (Self Government) Act. The coalition moved amendments to preserve the ability of the federal executive government to disallow territory law if the law is inconsistent with a federal law, and specifically referring to laws inconsistent with the Marriage Act. I understand the opposition will move similar amendments in this chamber.

The Australian Greens will be opposing these amendments as they undermine the intention of the bill, which is to remove the executive power to disallow territory law. The Constitution continues to provide for the parliament to overturn territory law. The whole thrust of this legislation is to give the territory assemblies, as far as is practicable, the same rights to pass laws for their citizens as the state assemblies have. These amendments want to cut down the rights of the people of the territories to deal with marriage laws in ways that are not different from those of the states. This cuts across the whole principle of the legislation. The Greens will not be supporting the coalition amendments.

The Attorney-General provided advice to the government that the opposition amendment is unnecessary to maintain the status quo in section 122 of the Constitution. The bill has the strong support of the Chief Ministers of the ACT and Northern Territory. They both appeared before the Senate inquiry calling on this parliament to respect their democratic mandate. I have here their letters to the committee and Senator Brown. One from the Chief Minister for the Northern Territory government, dated 8 March this year, said:

The Northern Territory Government expresses its support for the Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Commonwealth) Bill 2010.

The amendments to the Bill are consistent with my Governments position that limitations to the Northern Territory's legislative and executive powers that are not imposed on the States should be removed, and consistent with the Northern Territory's commitment to achieving Statehood.

Thank you for the opportunity to contribute to the Inquiry.

That is from Paul Henderson. Separately, the Chief Minister of the ACT Legislative Assembly wrote to Senator Brown saying:

Dear Senator Brown,

I write to thank you again for your ongoing support of the ACT's bid for stronger self-government arrangements through your introduction and continued espousal of the Australian Capital Territory (Self Government Amendment Disallowance and Amendment Power of the Commonwealth Bill 2010 (the Bill).

As you are aware, the bill was referred to the Senate Legal and Constitutional Affairs Committee for inquiry. The ACT government, along with many other groups and individuals, made a submission to the inquiry supporting the bill. The committee's report was tabled on 4 May 2011. I understand the bill is likely to be considered again by the Senate shortly.

It went on to say:

Given the committee's support for the passage of the bill, I am optimistic of wider support. I note Commonwealth officials appearing before the Senate committee indicated the federal government intends to support the bill. I ask that you also continue to voice your support for the findings of the committee and rally for an affirmative vote in favour of the bill. The 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.

Thank you for your initiative on these important issues. I have also written to all crossbench and opposition senators urging them to support the bill.

In conclusion, in the 2008 election 220,019 voters in the Australian Capital Territory elected a legislature. And in 2010, 80,029 voters of the Northern Territory elected their legislature. Their laws should not be overridden by the federal government and, in particular, by the executive of the federal government. The executive can and does meet in secret, without the direction or agreement of the parliament. The provision for the executive to override the Australian Capital Territory's and the Northern Territory's laws leaves parliament and its consultative committee system diminished and reactive. This is not the spirit of the Constitution. This removes the anomaly and restores the parliament's exclusive power to wield or constrain Constitutional authority over the territorial assemblies. I commend the bill to the House.