Julian McGauran (Victoria, National Party) Share this | Hansard source

I am all-inclusive in this particular debate this afternoon, as you know, Mr Acting Deputy President. I seek to take it seriously. So the first point I wish to make, having read the objects of the bill, is that the federal government, indeed the Australian parliament, has the constitutional power to make laws to govern the territories—that is, the Northern Territory and the ACT. That is under section 122 of the Constitution, which is in everyone’s drawer in the parliament here. I will read it in full. I know the previous speaker did also, but it is worthy of repeating because it is black and white constitutional law. Sometimes in this Constitution there are parts open to interpretation. We know that only too well. People make their careers on constitutional laws. The High Court often makes good or bad decisions with regard to their interpretations of constitutional law, but nothing could be more black and white than section 122 on this particular matter. I will read it:

122. The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

Backing up this section of the Constitution, of course, are sections 51(xxi) and 51(xxii), which state:

51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:—

                 …           …         …

(xxi)    marriage;

(xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants …

Again, this law, section 51, has been tested in the High Court and the Commonwealth has been supported in its acts. By the way—through you, Mr Acting Deputy President—while we are on section 51, Senator Brown in his address and the other speakers failed to mention the precedents set relating to section 51. They have been twice tested and twice passed by the High Court. The first example was the Franklin dam issue, where the government used its external powers under section 51(xxix) to override the state of Tasmania.

The second time that section was used was when we were in opposition, under the Hawke government again. So the Hawke government used this section of the Constitution twice—first on the Franklin River dam issue and, second, on the Tasmanian gay rights issue. On both occasions they overrode laws of Tasmania, which is the state that Senator Brown comes from. He did not mention either precedent in his address, most of all the gay rights issue. In about 1993 or 1994, I think, it was an issue in this parliament. So he does not mind when the issue suits him—