Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

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.

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

It’s unconstitutional.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

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.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Housing and Urban Development) Share this | Link to this | Hansard source

The opposition will be supporting the Australian Capital Territory (Self-Government) Amendment (Disallowance Power of the Commonwealth) Bill 2006 on the basis that we believe that, if self-government is to mean anything, local parliaments have to be held accountable for the actions they take and that it is inappropriate for governments to seek, in a burst of political populism, to slither down to Yarralumla in the dead of night to have executive fiats imposed upon the people of the Australian Capital Territory. I say that in a context where it is abundantly clear that the actions taken by this government were aimed at the broader domestic political agenda in regard to debates on the question of homosexuality rather than on any serious discussion of the legal or the constitutional issues that were posed by the legislation that had been passed by the Australian Capital Territory government.

The nature and context of the controversy have to be understood if we are to examine the base political motives of the government in seeking to use this particular dispute as a means of exercising its executive power. I say that because it is my firm belief that the government lacked the courage to pursue its agenda through its own party room. If the government had been serious about the claims it was making in regard to the civil unions legislation of the government of the Australian Capital Territory, it would have moved a bill in the Commonwealth Parliament of Australia and it would have allowed its own members to vote on that bill. I am of the opinion that such legislation was not proceeded with because the government was not confident that it could rely upon its own members. It was a device that was being pursued by Mr Ruddock, in my judgement at the behest of the Prime Minister, with a view to extracting momentary political advantage on the question of whether or not civil unions could be pursued, when the real bottom line on this was the government’s hostility to homosexuality. The government would not be so crude as to come out and put that case formally and publicly because that is not the way this government operates. It operates on the basis of seeking to exploit fears and insecurities in the community, rather than debating issues of fundamental human rights.

The government of the Australian Capital Territory took a position to the electorate; it had a mandate to act and it sought to pass legislation acting upon that mandate. Furthermore, the government of the Australian Capital Territory sought to make very clear that it was not seeking to breach the Constitution. It said to the Commonwealth of Australia: ‘If you can demonstrate that that case is incorrect, we will amend the legislation still further.’ Those offers were never taken up because it did not suit the political agenda of John Howard for there to be legislation in the Australian Capital Territory concerning civil unions. It suited his political purpose for there to be this dead-of-night ambush by way of a governor-general disallowing ACT legislation, which, of course, the government sought to exploit for its base political motives.

In this particular legislation the objects of the bill are straightforward. This bill seeks to remove the Governor-General’s power to disallow an act passed by the Australian Capital Territory Legislative Assembly and seeks to reiterate the principle of the primacy of the Australian Capital Territory’s Legislative Assembly in making laws for the Australian Capital Territory. I take the view that, where the territory’s powers are exercised in accordance with the Constitution and in accordance with the appropriate legal framework, it is entitled to make those laws. We have a very basic principle here, however, that the government in the Australian Capital Territory has to take responsibility for the laws it passes. It has to defend its own actions. It does that on the same basis on which all other parliaments in this country operate—that is, they have to face elections. That is how questions of accountability are resolved. There is an appropriate mechanism, so long as the parliament acts within the parameters of its normal powers. I take the view that, if a democratically elected parliament runs the gauntlet of an electoral process and acts within power, then it is entitled to hold itself accountable at the next election in that jurisdiction. That is a proposition which, frankly, I find unarguable.

If the argument genuinely was that the government of the Australian Capital Territory had exceeded its powers, then legislation should have been brought into this chamber and into the House of Representatives and then we could pass judgement on that basis. I think that is an appropriate course of action. If that is what the government genuinely believes, if it believes there are fundamental human rights, for instance, that are being put at risk or there is a matter of urgency, legislation can still be moved through the two chambers quite quickly. But it does not give any justification for slipping off down to Yarralumla to stick the shiv into the local government, put out a press release and make out what big fellows you are in an attempt to search out particular views, homophobic views, within this country.

The self-government act here has been in operation now for 20 years, and it is entirely appropriate that elements of the legislation should come under review and their continuing utility be examined. There are a number of standard measures that seem to me to be of use in evaluating the continuing benefits of the clauses empowering the Governor-General to disallow Australian Capital Territory legislation. I will mention just three. Firstly, you could argue whether or not particular legislation or a section of legislation is equitable and based on the recognition of the rights of citizens of the Commonwealth of Australia. It could be argued, secondly, whether or not it meets the spirit as well as the letter of particular pieces of legislation and, thirdly, whether it serves to promote good public policy and governance. But it is my contention that the disallowance powers of the Australian Capital Territory (Self-government) Act fail on all those tests. That is what needs to be assessed.

It has to be the case that under the present legal arrangements some Australian citizens, the citizens of the Australian Capital Territory and the citizens of the Northern Territory, are operating on a different standard of governance from the rest of the country. There are sanctions that can be applied to their local parliaments that are not applied to the rest of the Commonwealth. It strikes me that the present legal framework effectively discriminates against citizens in the Australian Capital Territory. If Senator Brown’s bill were carried by this chamber and of course the House of Representatives, it essentially would provide for genuine self-government of the Australian Capital Territory. If self-government of the Australian Capital Territory is to have any meaning at all, then the Australian Capital Territory legislature must have the right to determine its own policies within the parameters of its own authority. It strikes me that the present arrangements do not allow that to occur.

If we look at the sorts of interventions that have jeopardised the right of Australian Capital Territory electors to consider issues of social, cultural or economic importance and subsequently to collectively express their judgement on such matters through the ballot box, then we see we have a situation where the current law does not allow Australian citizens in the Australian Capital Territory to do that. Equally important is the point that needs to be made time and again: such power that currently exists compromises the rights of citizens in the Australian Capital Territory to hold their own governments accountable for actions that are taken.

It seems that the golden vote that is being reserved for the Governor-General—and I think Senator Bob Brown is quite right when he says that effectively means that the Prime Minister and government invoke their own discretionary, discriminatory capacities—is a matter of deep concern. It is a very lazy way to govern. It is a lazy way to hold governments accountable.

We are in the situation where the Howard government is increasingly seeking to interfere in the rights of the parliaments around this Commonwealth, but this is above and beyond that. We see it in the actions taken with regard to hospitals and schools, through to all aspects of the constitutionally legitimate functions of state governments. This is probably one of the most centralised or centralist governments in Australian history. It is an irony, because it is well known on this side of the parliament that there is quite considerable sympathy for national programs, for national consistency, for nation-building.

I must say that what I have seen in recent times, in terms of the interventions this government has made on what are traditionally regarded as the legitimate functions of state governments, is beyond all comparison with previous governments. There is hardly an area of state government activity in which the Commonwealth of Australia is now not seeking to intervene—hardly an area that I can think of. But we have a situation here in the Australian Capital Territory where, as I say, you can slither off down to Adelaide Avenue, out to Yarralumla, and put in a quick fix in the middle of the night without trying to actually address any serious public policy debate.

If the Commonwealth is genuinely concerned, if it thinks that the actions of a territory are inappropriate or outside its due legal powers, there are avenues that ought be available to it. I say: if the government felt that the marriage provisions of the Constitution—which everyone acknowledges are a Commonwealth responsibility—had genuinely been challenged by the ACT, it should have had the guts, the courage of its convictions, to bring a piece of legislation into this chamber.

When the situation arose with the euthanasia debate, the government made arrangements for a private member’s bill to be brought in. I did not support that private member’s bill, because I thought the Northern Territory was entitled to make laws on euthanasia. But I will say this about that piece of legislation introduced some years ago: at least there was a debate and a vote in the two chambers of this parliament. A case had to be made for why the override existed. It was a situation in which the Australian government and the Australian parliament could be held accountable for their actions. The government had to make a case—and it said, of course, that it was a private member’s bill; we all know what the view of the government was—and win a vote in this parliament.

Frankly, that is not the style of this government of recent times. We have seen a deterioration in standards over the 10 long years of the Howard government. They are much better now at doing the backroom deal to put in the quick fix than they are at public debates and trying to bring the public with them. What they are seeking to do is to exploit an emotive response and abuse the process available to them.

It is true that the need to invoke the power of disallowance is premised on the presumption of a failure of discussions and negotiation. I also take the view that the government went out to deliberately ensure failure of the discussion, debate and negotiation with the Stanhope government. You would expect that there would be a presumption of rational debate, but there is no way that that case can be made in terms of the correspondence that is now publicly available between Minister Ruddock and various ministers of the government of the Australian Capital Territory.

It is abundantly clear from the history of the past decade that this government has increasingly sought to impose its will upon the states and territories for the most mercurial of reasons. Time and time again we have seen an unwillingness to debate the benefits of legislation, or even of national programs. Whether it be flagpoles in schools or other forms of divisiveness—incitement, in fact—across a range of programs, the government does not actually want to see debate unless it registers in the focus groups first. Increasingly that is where the debate happens. It is through polling and focus-group responses so that the government seeks to pursue agendas it believes will enhance its overall political position.

The bill Senator Bob Brown has put before us today, in my opinion, does not compromise the capacity of the Commonwealth parliament to exercise its authority and its judgement in its legitimate spheres of influence and responsibility; nor does it compromise the ability of this parliament to operate, as it should, as the national guarantor of the human rights and wellbeing of Australian citizens. These are our fundamental responsibilities: to ensure the protection of citizens no matter where they live.

I fully acknowledge the possibility that, from time to time, governments do the wrong thing and do abuse human rights and may well in the future abuse human rights. There has to be protection to ensure that the legitimacy and equality of Australian citizens are protected. I say the way to do that is through deliberative legislative instruments.

The political compact that we call the Australian system of government must extend to allowing Australians the right to elect their governments—state, federal and territory—and to allow those governments to implement the platforms on which they are elected within their province of power. There cannot be a double jeopardy arrangement whereby the Governor-General has the right of disallowance over territory legislation without reference to parliamentary debate or parliamentary instruments. The fact that such a provision exists means there can be a partial and discriminatory exercise of executive power. Such a circumstance is incompatible with our legitimate right to protect the citizens of this country. Labor supports this proposed bill to remove the disallowance power over the Australian Capital Territory.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

I want to contribute to this debate by making the observation that the appropriate approach to issues like these is to consider whether one believes in an essentialist approach to the exercise of power in a democratic society or whether one takes a federalist approach, which accepts and supports the idea that there should be a range of centres of power in a federal system.

I unashamedly say to this chamber that I am a federalist. I am a great believer in a system that engineers a range of sources of authority and power within a democratic society, so that it is rarely or never the case that any one person or group or even government is necessarily able to exercise complete control and say over the lives and fortunes of the citizens of a particular community or nation.

In saying that I recognise what many others in this place have recognised: there is great genius in the Australian system of government, which despite many shortcomings and not being without the potential to be reformed in some way does nonetheless provide for there being two levels of government, with powers that are protected in the federal Constitution. Those levels of government have the capacity to stand their ground against any forbearance or paramount control by the other level that might override the wishes of a community that has elected that particular first form of government.

I think I am able to say in this debate that I am a federalist and I do generally support the exercise of power by state and territory governments, properly elected and properly mandated to reflect the wishes of their citizens against the wishes of even a federal government if that breaches the understood concept of federalism in Australia. I think I am able to make those comments with somewhat more of a history of support for federalism than some of those people today who will be supporting the Australian Capital Territory (Self-Government) Amendment (Disallowance Power of the Commonwealth) Bill 2006, introduced by Senator Brown.

I dare say that there are some members opposite—on the Labor benches, for example—who will be supporting this bill even though, presumably, they did not hesitate to support the legislation back in 1997 or 1998 that overrode the Northern Territory’s and, indeed, the ACT’s power to legislate with respect to euthanasia. I do not support euthanasia, but I strongly oppose the exercise of that power because I believe in the right of territories to legislate in those areas. I wonder whether some of those on the other side of the chamber who will be voting for this legislation today might ask themselves whether those positions are particularly consistent.

I also supported the right of the Tasmanian government back in 1983 to make decisions about its hydro-electric needs. I know that Senator Brown, although not a member of parliament at that stage—at least not a member of this parliament—certainly did not support that particular exercise of state power. So there are circumstances in which all of us are prepared to discard this idea of balance between the two levels of government and let one level of government step into an area which we might regard as being the preserve or the prerogative of another level of government in Australia—if the circumstances are right. None of us are holier than thou in that respect in a debate like this.

If we are honest about it, we will admit that we all understand there are circumstances where limits need to be placed on the bald concept that here is an area where a state government has the right to make decisions and here is an area where the federal parliament has the right to make decisions and there is never any grey area, never any overlap, never any question where the simple rules need to be reconsidered, modified or bent a little to accommodate the needs of the community or what is right in particular circumstances.

The fact is that there are limits on those federal concepts. Those limits are particularly relevant in the case of both the ACT and, to some extent, the Northern Territory. A very good example of the limits of that concept was provided only recently when it became obvious that the ACT government was at least contemplating legislating with respect to antiterrorist measures in a way which was inconsistent with the position of every other Australian state and the Northern Territory. That was a very good example of where, in the national interest, it was appropriate for the federal government to consider the exercise of a power to override the Australian Capital Territory’s law-making capacity with respect to—and, of course, this is the classic definition—peace, order and good government.

You might well argue that terrorist legislation is about peace and order, so you might argue that the ACT had the right to legislate in those areas. But, no, it was widely accepted in the community—and I would not be surprised if it was widely accepted in this chamber—that there is a prima facie right, an a priori right, by the federal parliament to make sure that Australia has consistent antiterrorism legislation. These principles might be baldly stated as being absolutes, but in fact they need to be carefully considered in each particular context in which they arise.

Another limitation that arises from that model of federalism, particularly as it applies to the Australian Capital Territory, is that the ACT and the federal government share the one home. The federal government’s headquarters, its parliament and its federal agencies are largely based in the national capital, and the ACT government, of course, administers the municipal and state-level services provided to the ACT community. So that need to ensure that federal interests are not compromised by the working of ACT self-government is a particular consideration that applies in the case of the ACT—perhaps not so strongly in the case of the Northern Territory, but it does clearly apply here.

I acknowledge that the ACT and the Northern Territory are in a slightly different constitutional position to the states. The rights of the states to exercise certain powers are enshrined in the federal Constitution, whereas the rights of territories are defined under legislation which itself is passed by the federal parliament. But I would say that, generally speaking, we should move to a situation where we equate as much as possible the right of territory governments to legislate within the areas assigned to them under that federal legislation as freely as is possible within the values, the traditions and the constitutional conventions that apply in Australian political life to state governments.

Having stated that principle and having stated that sometimes we need to compromise on it, I state very clearly my view that I think in this particular case Senator Brown’s legislation takes too far the principle that the territory government ought to exercise this power untrammelled by intervention from the federal government in this way—that is, that, as a reaction to the case of the federal government overriding the ACT with respect to civil unions legislation, it is not appropriate to throw the baby out with the bathwater and exclude any circumstances where the executive can exercise such a power against the ACT government.

I do not think that is sustainable. I do not think that position is consistent with a balanced view of what the federal government and/or the federal parliament may need to do with respect to administration of this territory and the protection, in its role in the federal territory, of the national interest. I make it clear that a key issue here is that the federal executive’s power to make a regulation with respect to acts of the ACT parliament under section 35 of the Australian Capital Territory (Self-Government) Act 1988 does not exclude or prevent parliamentary involvement in that decision. It does not prevent either house of this parliament from debating, and if necessary overturning, the exercise of that power by the federal executive.

Indeed, after the legislation of the ACT was overridden by an executive instrument of the Governor-General after taking advice from the executive, there was a motion of disallowance moved on the floor of the Senate. The motion attracted considerable interest. I am on the record as having supported that motion of disallowance. But the fact remains that parliament had its say. It was able to debate the issue. Had the numbers been different, it could have overturned the decision made by the executive.

The issue that Senator Brown is raising here is not so much about whether there is a role for parliament in these decisions but at what point in the process the role falls. I would not for one instance suggest that parliament should not have the right to consider this issue and decide it did not agree with an exercise of power, but I am not sure I can agree with Senator Brown in saying that in all circumstances the executive should not be able to act, particularly if there was a matter of national interest at stake, because we do not exclude the role of parliament in that process.

Senator Brown made reference to the dams case in 1983 and pointed out that the High Court upheld the power of the federal government to intervene in Tasmania’s affairs and overturn its scheme to dam the Franklin River. That is the case, but it is also the case that constitutionally—and there is no doubt here—the federal government can exercise power over the workings of the ACT Legislative Assembly on such matters.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The federal parliament.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

The federal executive clearly has that power.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

No; it says ‘parliament’ in the Constitution.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

Senator Brown wants us to affirm that it is only the federal parliament. He would be arguing that it is both chambers of parliament. Senator Brown is arguing that only the parliament should exercise that power. I acknowledge that is what he wants, but there is nothing to stop the federal parliament from passing laws which delegate that power to the federal executive. Indeed, that is precisely what the federal parliament has done. In 1988, when it passed the Australian Capital Territory (Self-Government) Act, it delegated to the federal executive, under section 35, the power to disallow ACT enactments in whole or in part or to even recommend amendments to the Legislative Assembly to legislation that it might pass. So it does have that power. That is outlined in the act which the federal parliament has passed. It is a well-understood constitutional principle that if the Constitution grants a power to the federal parliament it has the capacity to delegate that power, and it has done so in this case. If Senator Brown believes that there is a constitutional argument against section 35 of the self-government act being invalid, I would be interested in hearing it, but he did not make that case in his presentation speech.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I am arguing that you should take back that executive power.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

You want to take it back, but it has not been given illegally in the first place. It has been legally granted. It is within the power and the competence of the parliament to say, ‘We will delegate this power to the executive of the Commonwealth to overrule legislation.’ That is my argument anyway. If Senator Brown has a different argument I would love to hear it. When Senator Brown talks about the arrogance of government in exercising such powers, I have to say to him that it really is a matter of what you believe about the way in which that power is exercised. If he believes it is arrogant to override a territory parliament in these circumstances, I have to say to him that I think it was arrogant of the Hawke government to override the Tasmanian parliament in those circumstances.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

It was abiding by international law.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

It is a question of what attitude you bring to the decision, isn’t it, Senator? If you are overriding another government in an area where they have legislative competence—and there is no doubt that in that case they did; they had the power to build those dams—and you agree with their decision, you are acting in the national interest in accordance with international treaties; but, if you do not agree, you are being arrogant. It is a matter of your perspective, I think.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

No. You would have breached international law not to have done that.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Order! It is time that remarks were addressed through the chair.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

I will do that, Mr Acting Deputy President. Senator Brown said that he had not approached me to discuss this legislation, despite my obvious tendency towards considering it favourably, based on my voting record, because he believed that it was me who should have consulted with him, not the other way round, and that I should be listening to the people of the ACT. I want to place it on the record that, since this legislation was introduced back in June, nobody in the ACT community has approached me, other than journalists, to express any view about the matter.

Kate Lundy (ACT, Australian Labor Party, Shadow Minister for Sport and Recreation) Share this | Link to this | Hansard source

It’s your job!

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

I make a point of asking people what they think about these issues. I have approached plenty of people to ask them what they think about this, but the point I make is that nobody has come to me and said, ‘You ought to support Senator Brown’s legislation.’ I note that the ACT government, which was very happy to lobby me on the disallowance motion, has not bothered to express a view about this one way or the other. No doubt if I ask them they will tell me they support it, but I meet with members of the government regularly and there has been no indication of any view whatsoever on this legislation.

The fact is that I do not think this is a matter that greatly agitates the people of the ACT. Senator Lundy might report that she has had deputations, emails and letters on the subject, but I would be very surprised if she truthfully told us that that was the case. Frankly, I am very wary about adopting anything that the Greens put to me in the first place. I recall during the disallowance debate on the civil unions that I was urged earnestly by Senator Brown in the debate to support him. He particularly pointed me out and said, ‘You should do this, Senator Humphries; you should support this disallowance motion.’ I did and was promptly attacked by the ACT Greens for taking that position. They immediately doubted my sincerity and bona fides in taking the decision. So Senator Brown can understand why I am a bit hesitant to take his advice on this occasion. I wonder what sort of trap I am being led into by the Greens in such circumstances. I look forward to being assured that I am not, but he will understand that I am a little wary of the promises he makes.

Both Senator Brown and Senator Carr have repeatedly referred in this debate to the civil unions episode as justification for this course of action, but I believe that what they are doing is overreacting to that situation and that they are phlegmatically responding to that incident without thinking through the consequences of what they propose. What they propose is to exclude the possibility that in the national interest it might be appropriate for the federal government to exercise a power over a government and a parliament that it itself created through its own enactment. It is the child of the federal parliament, do not forget. I cannot foresee many circumstances where this would happen; I also cannot exclude the possibility that it could. If it were in the national interest, on a national security issue, for example, it could be appropriate in those circumstances. We ought not to exclude the capacity of the executive to act in accordance with section 35, particularly given that we have the safeguard or protection that the decision of the executive can be, and almost certainly would be, reviewed by the federal parliament in a debate of the kind we had not long ago.

Kate Lundy (ACT, Australian Labor Party, Shadow Minister for Sport and Recreation) Share this | Link to this | Hansard source

I welcome the Australian Capital Territory (Self-Government) Amendment (Disallowance Power of the Commonwealth) Bill 2006, the amendment to the Australian Capital Territory (Self-Government) Act 1988 that is being proposed here today. As you have heard from my colleague Senator Carr, Labor will be supporting it. This amendment would remove the Governor-General’s power under the ACT (Self-Government) Act to disallow ACT laws.

I recognise the Commonwealth parliament’s power to make laws for the Australian territories pursuant to section 52 and section 122 of the Constitution. However, I seriously challenge the legitimacy of a law that allows for parliament or the executive to override the laws of a democratically elected territory government. This proposed amendment would abolish the power of the Commonwealth to disallow any act of the ACT government, thus ending this unsatisfactory and undemocratic state of affairs.

Section 35 of the Australian Capital Territory (Self-Government Act) enables the Commonwealth to disallow otherwise legitimate ACT laws. Section 35 of this act has only ever been used once. It was used in June this year to overturn ACT laws relating to civil unions. The government’s use of section 35 of the self-government act was unprecedented and an unwarranted interference in the governance of the ACT, and it should never be allowed to happen again. This bill, if successful, will make sure it will not.

The ACT government was duly elected by the people of the ACT. The elected government had promised the ACT community that it would introduce laws recognising same-sex relationships if elected and sought to deliver on that promise. Chief Minister Jon Stanhope led the Labor team into majority government in 2004 for the first time since self-government, which was quite an achievement, and one of the Labor commitments, as I said, was to introduce the law that recognised same-sex relationships.

Under public pressure as to his stance on this issue, ACT Liberal Senator Humphries admitted to the Canberra Times on Friday, 16 June 2006 that:

I acknowledge that Jon Stanhope won a clear majority in the 2004 election ... I also acknowledge that Jon Stanhope went to the election with an explicit promise to legislate to recognise in law relationships between people of the same sex and to remove legal discrimination against gay and lesbian Territorians.

Senator Humphries then continued on to say that the obvious ‘democratic process’ would be to allow the ACT government to deliver on its election promise—a democratic process his Liberal colleagues in the Howard government clearly failed to respect and follow. Consistent with its election commitment, the ACT government held extensive consultations on how to proceed with introducing laws to recognise same-sex relationships. The outcome of these consultations was the Civil Unions Bill, a bill that enjoyed extensive community support.

The Howard government’s use of section 35 of the ACT (Self-Government) Act to overturn the Civil Unions Act was a triumph of the Howard government’s arrogant disregard for established democratic processes. They did it because they could. They used their majority plus the Family First senator, which meant that the vote of Senator Humphries was unable to change the outcome—and I do acknowledge that Senator Humphries crossed the floor on that occasion.

The Commonwealth executive—in this case, the Howard cabinet or, for that matter, the Governor-General—cannot pretend to represent the views of the people of the Australian Capital Territory. They have no right to use this power to substitute their views for the elected representatives of the people of the Territory. It was particularly offensive that the Howard government used the representative of the British monarchy in Australia to do the overriding of ACT law. It harked back to colonial times when an autocratic approach was used to govern allegedly wayward new colonies. It was highly condescending and completely inappropriate. It was also a triumph for the Prime Minister’s offensive and extreme ideology. I make the critically important point that the ACT Civil Unions Act did not infringe on the Commonwealth’s exclusive legislative rights over marriage, nor did the ACT bill conflict with existing Commonwealth legislation relating to marriage.

Many people will remember that the Prime Minister was desperate to say this was not so. He repeatedly asserted that there was some crossover or conflict but, when pushed on this point, he could produce no evidence because, in fact, none existed. It was, in my opinion, homophobia, front and centre. I will continue to support the ACT government’s attempt to formally recognise same-sex relationships in the ACT. It should have happened then. It should still be in place. It is important in principle and in practical application. It is very important to the community as a whole.

The ACT Civil Unions Act intended to ensure that everyone received equal treatment under ACT law. The act would have allowed a couple to establish a domestic partnership by making a formal declaration of their intention to do so. The act was non-discriminatory in that anybody could have accessed a civil union in the ACT regardless of gender. In contrast, the federal government’s, the Howard government’s, refusal to formally recognise same-sex couples is blatantly discriminatory.

The ACT Civil Unions Act clearly intended to stamp out the discriminatory treatment of same-sex couples under ACT law, and was entirely consistent with the obligations under the ACT Human Rights Act. The ACT Civil Unions Bill 2006 showed the ACT Labor government’s commitment to ensuring that everyone has the respect and dignity that they are entitled to and deserve—that is, a commitment to protecting everyone’s right to participate in society and to receive the full protection of the law regardless of their gender or chosen partner. All these aspirations have been undermined by the Howard government.

I would now like to make some comments with respect to the treatment of the ACT as a territory under the Constitution compared with the states. If the ACT were a state rather than a territory, the Commonwealth government could not have overturned this important new law, as is evident by the Tasmanian Relationship Act. The fact that this could not have happened to a state is further evidence that the government was ideologically driven to overturn this important and practical legislation rather than letting it stay in place.

Perhaps one of the most disappointing aspects of this matter is the Howard government’s complete unwillingness to talk with the ACT government. I am disappointed that the Howard government refused to engage with ACT representatives and find a constructive solution. They could have discussed what they found so offensive about the act. They could have discussed how the ACT law fitted in with Commonwealth laws and perhaps amendments could have been made so that the majority of the bill could have come into effect

Finally, I formally call on my ACT Senate colleague, Senator Humphries, to support this amendment bill. I heard his contribution in the chamber today and I was very interested to hear his opinion on this important amendment. I would like to remind the Senate that Senator Humphries did cross the floor in June to vote for the disallowance motion that would have allowed the territory law to prevail. I would also like to remind the Senate of Senator Humphries’s comments to the Canberra Times on Friday, 16 June, 2006:

Here the democratic process—which of course was conferred on the ACT 17 years ago by this Parliament—provides a clear formula for what happens next: the ACT Government is entitled to pass laws, in an area of its legislative competence, to effect an explicit promise made to the ACT community.

Senator Humphries says he is a federalist. He waxes lyrical about its virtues and the limitations he thinks appropriate on a centralist approach to government, but the bottom line is that his support for federalism stops short of curtailing the long arm of centralism being used by his government colleagues to deny democracy in the ACT. He now extols the virtues of what he calls ‘necessary limits.’ Senator Humphries even resorted to the example about the antiterrorism legislation as an example where the ACT government ought not to be trusted and ought to be overridden—a double standard if ever I have seen one. A double standard that shows Senator Humphries is far less concerned with principle and far more concerned with the politics, in this case the politics of fear and the politics of the threat of terror attack as was espoused during that particular debate.

Finally, as I think several senators have acknowledged, Senator Humphries could easily resolve to support this bill and the federal parliament would always retain its capacity to legislate with respect to the territories as per the constitutional power. We all know that, so why does he squib on this bill? There is only one answer: he lacks principle on this matter.

Ross Lightfoot (WA, Liberal Party) Share this | Link to this | Hansard source

Time and time again since I have been here I have said to remind myself, lest I forget, what a great honour it is to be in this place, the Australian Senate, where I try to represent the conservative views of decent, hardworking, mainstream Australians. Today, I have looked at the Australian Capital Territory (Self-Government) Amendment (Disallowance Power of the Commonwealth) Bill 2006, brought to the Senate by Tasmanian Senator Bob Brown and wondered, ‘Who is right—Senator Brown with his distinctly different lifestyle or me?’

This bill of Senator Brown’s for an act to abolish the power of the Commonwealth executive government to have the constitutional power to disallow any act of the Legislative Assembly of the Australian Capital Territory, and for related purposes—I look forward to returning to that phrase ‘and for related purposes’ in a moment—this bill by the different Greens, calls for the disallowance of the self government act’s provision for the parliament or the executive, in this case the Governor-General of Australia, to disallow any act of the ACT’s Legislative Assembly. Everyone knows that. This bill of Senator Brown’s seeks to remove that fundamental power of the executive of the federal government, a power integral to a Westminster system involving federal, state and territory systems. Section 122 of the Australian Constitution provides the Commonwealth with law-making powers over the territories. Specifically, section 122 reads:

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.

What does this section of the Australian Constitution mean in terms of this bill? It means, without any ambiguity, that the Australian government or its executive, the Governor-General in this case, as I have said, has the power to override any legislation made by that territory that is not in the national interest.

The power to override, or disallow, legislation enacted by territory governments is subject to approval by the Governor-General and may also be disallowed by the Australian parliament which was alluded to by my colleague Senator Humphries. Also, I would point out that Section 35 of the Australian Capital Territory (Self-Government) Act 1988, which was also alluded to by Senator Lundy—an act with its genesis in this place—provides that the Governor-General may, within six months of an ACT enactment being made, disallow ACT enactments in whole or in part or recommend amendments to the relevant act to the ACT Legislative Assembly.

The Australian government does not generally intervene in the process of our democratic, self-governing, albeit limited, territories. In fact, this disallowance power has been exercised only once. I think Senator Lundy may have mentioned that also. It was disallowed by the executive concerning the Australian Capital Territory’s short history, and it is the single instance of the enactment of this disallowance power that has apparently so incensed Senator Brown that he wishes to have these powers completely removed from the executive.

What is this bee in the senator’s bonnet and to what exactly does ‘and related purposes’ refer? It was the disallowance of the Australian Capital Territory’s controversial civil unions legislation that was to give statutory recognition to same sex couples. The disallowance power that was used in respect of this legislation occurred on 13 June this year. Senator Brown did not agree with the exercise of these constitutionally supported disallowance powers, so this bill seeks to remove those powers as bestowed on the Governor-General by both the Australian Constitution and the ACT (Self-Government) Act 1998. Senator Brown’s bill would therefore require that the Australian government draft legislation to override inappropriate ACT law, the bill would then be debated through the parliament and it would be subjected to the normal parliamentary processes. The subsequent development of such a bill could take well in excess of the current six-month period that is currently available under the time limitation to disallow ACT enacted legislation.

The use of the section 35 powers of the ACT (Self-Government) Act is quick and relatively simple, particularly when compared to the process of passing a bill through this parliament, and disallowance must take place within six months as mandated in section 35. It is clear that the existing process of disallowance is more rapid, but Senator Brown wants to chuck out the existing workable laws that permit disallowance by the executive of unacceptable territory laws. He wants the Australian government to make new laws to override unacceptable territory laws. The appropriate laws already exist; Senator Brown just does not seem to like them. This afternoon we are in this chamber debating yet another Greens bill about introducing new laws to repeal other new laws, all because Senator Brown supports same-sex marriages. What a waste of the parliament’s time. Would it proceed to the lower house? I doubt it—there are too many decent people in this chamber for it to do so. I have no doubt about that. I have to wonder what this has to do with representing and upholding the values of hard-working, mainstream, decent Australians.

Senator Brown’s second reading speech refers to the quarter of a million ACT voters, which was actually only 227,000-odd in the 2004 election. Then again, Senator Brown was recently outed as being a little lax on accurate reporting of actual figures; $20,000-odd is neither here nor there, is it, Senator Brown, in your reporting to senators’ interests. Senator Brown’s second reading speech refers to these electors as though they all voted in favour of the civil union legislation, or as if the number of voters in the ACT should somehow exempt its legislators from the constitutions under which they preside. What is the relevance of voter numbers in the ACT 2004 elections? Why not look at the total population of the ACT, which incidentally is 326,700 compared to Western Australia’s more than two million; or the total kilometres of roads in the ACT, which is 2,645 compared to Western Australia’s nearly 150,000; or the number of people using public transport on a daily basis in the ACT, which is 7,500 compared to 25,000 in Western Australia; or the ACT’s 24,800 university students across its four major campuses—and they are good campuses; or something really worthy of the interest of this chamber: the number of hospital beds available in the ACT’s two public hospitals, which are only 1,068, making availability of hospital beds in the ACT the lowest of any state or territory in Australia?

Let us not be side-tracked with figures and issues that are of no interest to Senator Brown. Let us refocus on what is important to Senator Brown—the fact that the ACT’s same-sex marriage legislation was subjected to constitutional disallowance powers. How awful that constitutional powers should have been used in this fashion. What a lot of rubbish. Senator Brown conveniently forgets or totally disregards that, subsequent to the disallowance of the ACT legislation, a bid was made in the Senate on 15 June this year. It was moved, incidentally, by Senator Brown’s colleague Senator Nettle and Senators Stott Despoja and Ludwig. It was a bid to overturn the disallowance and it failed. It failed then and it will fail if and when it is put to the test this afternoon. This failed bid in the Senate is proof that Senator Brown’s proposal to remove certain powers of the Governor-General and site that power within parliament is nothing more than another attempt to grandstand and to waste the time of this chamber and the money of Australian taxpayers. The best thing that could happen is this place is for someone to undertake a survey of the time wasted by the fatuous motions of the Greens.

That aside, Senator Brown already knows what the outcome would have been had the parliament been the sole arbiter of that particular disallowance. There is nothing at all to indicate that any future decision made under the same processes would have a different outcome were it instead subjected to the scrutiny of the parliament. No—the outcome would be the same. Senator Brown would have ample opportunity to procrastinate, posture and pontificate. However, the problems that could be created during the interim—bearing in mind that this process would have to be accomplished within the prescribed six months of enactment of legislation—are immense. Currently, inappropriate legislation can be overridden in a relatively short time simply using constitutionally mandated processes. Why on earth would we want to wait six months?

Really, one would have thought that Senator Brown had better things to do and that the ACT was capable of looking after its own interests, particularly given that the ACT Legislative Assembly, on average, has one elected representative for every 19,000 residents. Presumably Senator Brown feels some sort of empathy with this statistic given that Tasmania is very similar, with one legislative assembly representative for every 19,488 electors. Each of our lower house folk back in Western Australia struggle along representing nearly 36,000 residents. I know you find these statistics riveting, Acting Deputy President Marshall. Presumably those elected representatives are kept busy with matters of greater importance than the failed legislation that brought about this fatuous bill of Senator Brown’s.

The ACT is not Chief Minister Jon Stanhope’s sole bailiwick, nor is it the sole bailiwick of his fellow Labor members. The ACT is not Monaco to France; it is not Lichtenstein to Switzerland. The ACT is an integral part of the Commonwealth of Australia and as such it is subject—and should be—to the Commonwealth laws and the Commonwealth veto.

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

I, too, join this Thursday afternoon general business debate. I have always thought that this period of the parliament, at the end of the week, is a real dead rubber period. It is not broadcast. No vote is ever taken on this. No divisions are ever allowed, according to standards orders. We know that out there—outside this chamber—there is a dash for the airport going on at this very moment.

Having been a whip in the past I know how hard it is to get people to speak in the afternoon of a Thursday. This period is a real indulgence of the opposition and the minor parties. I notice that even they do not take much advantage of it because most of the motions are Senator Carr’s. They always give Senator Carr a big say on Thursday afternoons because, I guess, he never wants to go home to his own state of Victoria; he is so notoriously known in his state.

Senator Lundy is always here on a Thursday afternoon. She will speak on anything, let alone move her own motions. I should say that while this is an opportunity for the opposition to move motions, debate and speak, I notice that the real heavy hitters—like Senator Conroy, Senator Ludwig and the like—are never here to debate anything on a Thursday afternoon.

So it is very much a dead rubber. But could it be any deader than today? Could a Thursday’s general business be any deader than today’s? This is one of the weakest speaking lists—

Kate Lundy (ACT, Australian Labor Party, Shadow Minister for Sport and Recreation) Share this | Link to this | Hansard source

So why are you here? What does that tell us about you?

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

I am always here. Quite frankly, Senator Lundy, I am always here on Thursday afternoon. Senator Trood is going to speak after me—

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator McGauran, please address your remarks through the chair. I will take this opportunity to remind you of the question before the chair.

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

Yes, indeed, Acting Deputy President. I have a lot to say about the motion of Senator Brown. But the point has to be made that even Senator Brown, whom we all know never misses an opportunity to speak in this chamber, let alone to his full limit, could not even do his 20 minutes. It is a rare occasion when Senator Brown does not take his—

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

I rise on a point of order. Will Senator McGauran get back to the relevance of the order of the day that we are debating instead of just waffling on?

The Acting Deputy President:

Senator McGauran, I remind you of the question before the chair.

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

I will be reading the question before the chair. For the benefit of those on the other side of the chamber, what I am trying to establish here is that the weight and importance being placed on this motion is minimal. It really is not as important as the strutting of Senator Brown would have us believe. That is the point I am trying to make. The government have supplied five of the eight speakers. This is the weakest speaking list I have ever seen for general business.

Opposition Senators:

Opposition senators interjecting—

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

It is not just the three that they have supplied. Senator Bartlett, who speaks on documents, has not even come in.

The Acting Deputy President:

Senator McGauran, please, I would rather you did not stand up and point across the chamber. I ask you to direct your comments through the chair. I ask other senators to cease interjecting.

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

With respect to you, Acting Deputy President Marshall, as the chair, with respect to the standing orders of the parliament on relevancy and with respect to the parliament and the Senate, I will attempt to take this matter seriously.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Sterle interjecting—

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

Yes, I will try to take this matter seriously. It is difficult but I will attempt. Senator Ludwig, it really surprises me that you are not on an aeroplane out of here. One of the more important members of the parliament—

The Acting Deputy President:

Senator McGauran, I have now asked you three times to address your remarks through the chair. I ask you to do that.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

Mr Acting Deputy President, I have been following this debate for some time but I wish to take a point of order in respect of Senator McGauran. Senator McGauran knows better than to use the language and to make the inferences that he has been making this afternoon. I ask Senator McGauran that if he was making accusations about people’s presence or otherwise he withdraws them.

Ross Lightfoot (WA, Liberal Party) Share this | Link to this | Hansard source

I rise on a further point of order, Mr Acting Deputy President. My first point is that Senator Ludwig knows that he should not address Senator McGauran across the chamber like that. My second point is that I have listened to the debate and I have heard nothing that is of an unparliamentary nature that Senator McGauran has used in his contribution here this afternoon.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

Further to my point of order, and on that point of order, I ask, Mr Acting Deputy President, that if you think there is an issue to be taken, the transcript of the proceedings be reflected upon by the President. Senator McGauran can always, in due course, if the President so rules, deal with it accordingly. If there is no point of order in respect of that, and if there is no matter apparent in the transcript, then I accept Senator Lightfoot’s contribution.

The Acting Deputy President:

In order to steer a way forward, I will remind Senator McGauran of the standing orders, in particular standing order 193, with respect to the rules of debate, and particularly paragraph (3), about reflecting on other senators. I will simply at this point remind you of that, but I do ask you again to address your remarks through the chair and consider the standing order that I have referred to.

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

I will read out the object of Senator Brown’s bill before the Senate. It reads:

The objects of this Act are to—

Kate Lundy (ACT, Australian Labor Party, Shadow Minister for Sport and Recreation) Share this | Link to this | Hansard source

We know what it says!

The Acting Deputy President:

Order!

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

Well, here I am, Mr Acting Deputy President, trying to read what is—

The Acting Deputy President:

Yes, Senator McGauran, and I was calling the interjecting senators to order. If you would please let me manage the chamber, I will attempt to do so, if you would cooperate with that. I would ask other senators to cease interjecting.

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

The bill reads:

In a nutshell, it is—

Kate Lundy (ACT, Australian Labor Party, Shadow Minister for Sport and Recreation) Share this | Link to this | Hansard source

One minute!

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Just get on with it! You really are struggling.

The Acting Deputy President:

Senator McGauran, you are able to ignore the interjections.

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

I have read religiously from Senator Brown’s bill. I read word for word its object and all I get is interjections on that alone. I am struggling with all the interjections that are being thrown across the chamber. I have plenty to say on constitutional matters and precedents about this particular bill. I just cannot seem to get past page 1, because Senator Sterle, who happens to be off duty now—you are off duty as whip—is hanging around just to annoy me on this particular bill. Mr Acting Deputy President, I will plough on, through you.

The Acting Deputy President:

I would be most grateful.

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

The essence of the object of this bill is to strip the federal government, and indeed the parliament, of the right to override territory laws. I would be right in saying that, wouldn’t I?

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

No, you’re wrong.

Julian McGauran (Victoria, National Party) Share this | Link to 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—

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Sterle interjecting—

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

Senator Santoro interjecting—

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

I apologise, Senator Santoro, if I am becoming a little passionate about this issue that, when I opened it up, I thought was as dull as dishwater and most unnecessary. I suddenly realised there is a lot of inconsistency, if not hypocrisy, in this particular issue. Why didn’t Senator Brown mention the gay rights debate and the vote we had in this parliament, where the Labor Party government and Prime Minister Hawke overrode the laws of the state of Tasmania with regard to gay rights? I will tell you why: because it suited him not to, and that is what this debate is all about. The other side know that this parliament or the executive government has the right to override the states on certain issues, as it does the territories—more so the territories, of course.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

And you support that.

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

Yes, I do—to the hilt.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator McGauran, please ignore the interjections.

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

They know they have the constitutional rights but they only want to use them when it suits them. I have just read out what is black and white constitutional law. It is no doubt one for the constitutional lawyers, it always is, but I would venture to say that if Senator Brown’s bill was ever tested—if it ever so much as made it to the High Court—I think it would be deemed unconstitutional. You cannot pass legislation through here that overrides the Constitution. It is tested in the High Court—just as we have at the moment with the industrial relations laws being tested by the states in the High Court. This is another matter which the other side failed to mention. You can test legislation which goes through this parliament in the High Court.

If I may be helpful to Senator Brown on this issue, if he wants to achieve his end then he would need to initiate a referendum. The whole thing is hypothetical and ridiculous, but let us just assume that he seeks to achieve his end and the only way to do it is by referendum. He would require a majority of the people to support him in this referendum. I know that that is something that Senator Brown and the Greens are not versed in—seeking a majority of the people for anything at all. He knows this only too well and that is why he would never test it. He always avoids the hard question in regard to referendums because referendums simply do not have a good record in this country at all. We know that since Federation there have been some 44 referendums and only eight have been successful. We know that the last referendum held in this country in regard to a republic failed miserably. The last time a referendum was held during a Labor government was in the bicentennial year when some four referendums were put up at the general election in 1990. They all went down in a screaming heap. So referendums do not have a good record. It is simply not in the national interest that this ever go to a referendum. The people would wonder why you would put such a lightweight issue up to a referendum anyway.

Another avenue for the Greens would be to create a state—the state of Canberra or the state of the Northern Territory. We know that many people in the Northern Territory for many years have sought to turn the Northern Territory into a state. If it were a state, they would have greater freedom to make their own state based laws. But of course we know that in the Northern Territory when they held a referendum—it was actually more like a plebiscite—in 1998 where they expected there to be a landslide of support for the Northern Territory to become a state they got a real shock. The majority of the people rejected the referendum to have the Northern Territory become a state. I would venture to say that if you tried the same thing in the ACT you would get an even more overwhelming rejection of any such proposition.

In the ACT they live a very comfortable life, some would say even a ‘Tattslotto style lifestyle’, and they would be very loath to separate themselves from mother’s milk. When they look up from their homes in Forrest or wherever and see the parliament on the hill, they feel very comfortable. They feel very comfortable that the federal government, sitting on the hill looking down on their most junior of parliaments, as a last resort, have the authority to override—let alone the prestige that they see in us all; I do not single myself out, I stress, in that. So, Senator Brown, I have attempted to bring some common sense and some reality to your bill—to try and bring it some grounding. You can see that it has no grounding at all. Whatever avenue you take, the best shot you have is a Thursday afternoon broadcast. The truth of the matter is—

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Mr Acting Deputy President, I rise on a point of order. I remind the honourable senator to address his remarks through the chair.

Ross Lightfoot (WA, Liberal Party) Share this | Link to this | Hansard source

Mr Acting Deputy President, I rise to speak on the point of order. That is no point of order. It is not up to Senator Sterle to direct you to direct Senator McGauran to address his remarks through the chair. If you wish to do that, Sir, that is your prerogative.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

Mr Acting Deputy President, I rise to speak on the point of order. Clearly Senator Sterle was raising the point of order that Senator McGauran was not addressing his remarks through the chair. Senator Lightfoot may wish to be pedantic about the terminology used but I think the intent of the point of order was manifestly clear and I would ask you to draw Senator McGauran’s attention to it.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I draw the attention of all members of the Senate to the standing orders.

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

One feature of my address to the Senate, before I get back to the substance of it, is that I notice that Senator Sterle was off duty some 15 minutes ago or thereabouts but has decided to stay on, to listen to my contribution to this debate, to interject, and to become very stimulated by it. I am very pleased to say that we have finally got Senator Sterle to do an extra shift—a bit of overtime and a bit of work. I think the other side ought to give me a medal for that because they know that they have to drag him into this chamber at any time to do any sort of work because he is an old unionist who has never known the real substance of work—

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Oh, pull your head in, you pompous—

The Acting Deputy President:

Order! Senator McGauran, I would ask you to address your remarks through the chair.

Ross Lightfoot (WA, Liberal Party) Share this | Link to this | Hansard source

On a point of order, Mr Acting Deputy President: Senator Sterle made an unparliamentary remark. I would ask that you direct him to withdraw that unparliamentary remark.

The Acting Deputy President:

I did not hear an unparliamentary remark. I would ask Senator McGauran to continue his remarks.

Ross Lightfoot (WA, Liberal Party) Share this | Link to this | Hansard source

Further to that point of order, Mr Acting Deputy President, would you consider reviewing Hansard and, if that remark made it this time and was unparliamentary, directing Senator Sterle at another time to withdraw the remark?

The Acting President:

Absolutely. I am happy to review the Hansard and, if there is anything unparliamentary, we will deal with it in the appropriate manner.

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

This has been a fiery debate, and for no reason at all. We have to put everything in perspective about the debate we have before the chamber at the moment. First of all, this is the Australian parliament. More people vote for this parliament than for any other in this country. Let us put in perspective what we are talking about with the ACT—and we should bring the Northern Territory in on this too. The Northern Territory has a parliament of some 25 members, each representing between 4,000 and 5,000 electors. It has a population of around 205,000 people. The ACT has a little more in population—about 325,000 people. It has an assembly of 17 members.

Let us put this perspective. Which parliament has the greater national interest at heart? I think on every occasion it would be seen to be this parliament. Yet, sparingly, and with judgement and with the national interest in mind, we have acted on only two occasions that I recall since we have been in government for some 10 years. The first one was, of course, in relation to the Euthanasia Laws Bill, as far back as 1996, where we overturned the Northern Territory Rights of the Terminally Ill Act. Recently, of course, it was in relation to the Australian Capital Territory’s Civil Unions Act.

On the issue of the Northern Territory euthanasia bill, I would like to read what I said in my address—given the time, I will be ever so brief—about why I considered we should have overruled that act and why it was in the national interest. I said:

The insidious Northern Territory Rights of the Terminally Ill Act, which is the first in the world, operates on new tenets for our society—tenets of hopelessness and neglect as distinct from hope and care. There is something very chilling about a health system that normalises the act of suicide for those aged 18 years and over. That is what our society will be doing if it accepts the Northern Territory euthanasia act because, once we normalise the state of hopelessness, we will accept the broader concept of suicide. After all, suicide is only ever chosen when the state of utter hopelessness is reached.

I would have thought that everyone in this chamber would have thought the debate on euthanasia was of national interest and that the Northern Territory had not legislated just for their boundaries; it would be an act which was influential morally and socially throughout Australia. We ought to have intervened, and we did.

Equally, on the Australian Capital Territory’s civil unions legislation, I would like to quickly quote Senator Minchin, who sits here in front of me, but I am not going to have time. But I would recommend to anyone that they read his speech in regard to the reasons we sought, on these rare occasions, to overturn the ACT legislation—after much consultation, I should add. I urge the Senate to utterly reject this bill. (Time expired)

Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

It is a delightful opportunity to be able to speak on this matter. Senator McGauran, my colleague from Victoria, has drawn attention to the lateness in this sitting period. It is late on Thursday afternoon. Any bill which says, in the explanatory notes, that it is ‘a bill for an act to abolish the power of the Commonwealth’s executive government to disallow any act of the Legislative Assembly of the Australian Capital Territory and for related purposes’ seems at least on the face of it to be a matter of some significance, some importance and in fact some might even say profound importance, since it would seem to touch the power of the Commonwealth in relation to one of its territories.

But I think we all know that this is a rather tawdry exercise by Senator Brown on behalf of the Greens. It is an exercise in trying to harvest populist votes from the good citizens of the Australian Capital Territory and to try to expand the Greens’ domain, if you will, in the territory. It is an effort to try to appeal to the people of the Australian Capital Territory on a matter which is hardly of core importance to the Greens. I have not had the opportunity to look at this in the time I have had available to prepare my remarks in this debate, but I would be very surprised if one of the core platforms of the Greens is that it wishes to extend democratic rights, as they might be described, for the good citizens of the Australian Capital Territory. Rather, this seems to me to be something of a spasm response to the Greens’ disappointment with the fact that the government earlier in the year made a regulation disallowing the legislation with respect to civil unions in the Australian Capital Territory.

In relation to that particular piece of legislation, the parliament took the view—and rightly, in my view—that marriage should not be redefined in the way in which the piece of legislation from the ACT legislature proposed. I still think that that was a correct decision. But that is the past, and I do not want to revisit that matter again this evening. There are other, and rather important, things to examine.

Indeed, there has been a great deal of fallout from that piece of legislation and it is manifest in the Australian Capital Territory (Self-Government) Amendment (Disallowance Power of the Commonwealth) Bill 2006, which is before the chamber this evening. It is a short bill. In fact, it is a disarmingly short bill with respect to the impact it may have on the constitutional arrangements of the Commonwealth. Essentially, it seeks to remove the Commonwealth’s power to override legislation in the ACT legislature. It is deceptive because we are engaged in a rather simple proposition here but, in my view, it seeks to unravel a very important—perhaps even profound—constitutional compact that exists between the Commonwealth and one of its component parts, which of course is the Australian Capital Territory.

In the time available to me, I want to take a little time of the Senate to explain, as I see it, the unravelling of this particular compact and what the consequences would be if this bill were to ever see the light of day—if it were ever to be passed by parliament—and I trust that will not come to pass. But, before I do that, I will just make a couple of quick observations about the bill. The first is, I think, a natural one and one made by other speakers in the debate, which is that the power we are talking about here is not one that is often used by the Commonwealth. In fact, one could say it is used sparingly. I have been in this place a relatively short period but, in the time I have been here, there has been only one occasion that I can recall when this particular power has been used. It is not as though this is something that the Commonwealth engages in every day of the week or every sitting session or on a particular, regular basis. It is a power which is used, and rightly so, infrequently when circumstances demand that it should be used. In that context, it is proposed that we should change a profound principle of constitutional practice for a power which is hardly ever used, and that does not seem to me to make a great deal of sense.

The second proposition I make is that the Australian Capital Territory legislature is of course a unicameral legislature. I come from Queensland, as you know, Mr Acting Deputy President, and Queensland has a single legislature. It is a unicameral legislature. The Legislative Council in Queensland was abolished in the early part of the 20th century, and I think citizens of Queensland have had cause to regret that abolition on numerous occasions since then. I am not an advocate of unicameral legislatures. They seem to me to be unsound, as a matter of constitutional principle and practice. I would hardly be someone who would be coming into this chamber to encourage the idea that yet another unicameral legislature should have the power to make decisions which would have ramifications way beyond what has been decided by the constitutional arrangements that currently exist.

The third proposition I make is a very simple one—and I think it has been made by some of my colleagues—which is: even if this bill were to be passed by some minor miracle of constitutional activity, it would have no effect because we would still be left with section 122 of the Constitution and the power that that gives the Commonwealth to make laws for the government of the territory. So we could engage in a long debate, we could spend hours of the parliament’s time trying to work our way through the elements of this particular piece of legislation and, in the end, it would come to nothing. It would all be nothing more than a great deal of constitutional hot air, because we would be back where we started. We would pass the bill and we would find ourselves confronted, as Senator Bob Brown must surely know, by the realities of section 122 of the Constitution, which of course gives that power to the Commonwealth. So, unless we were to change that particular clause in the Constitution, this bill would have absolutely no impact or import.

I will return to the matter of the constitutional design that I alluded to at the very start of my remarks. There are two clauses in the Constitution which are relevant to this particular matter. They have been cited by other senators in this debate. But they are important clauses, and I think it is important that one draws the parliament’s attention to them. The first clause is section 122 of the Constitution, which states:

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

It then goes on to make some other remarks about various aspects of the government of territories. The second clause which is of particular relevance is section 52 of the Constitution. It reads:

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

(i.) The seat of government of the Commonwealth …

Here we have a very specific kind of constitutional design. We have an arrangement whereby the Constitution provides for the states to give up territories, should they voluntarily decide to do so, and in doing so the Constitution then gives power to the Commonwealth to make laws for ‘peace, order and good government’—a phrase that resonates in my own mind, from the days when I was at law school, and in the minds of most lawyers as one which relates to the exercise of Commonwealth power. Here we have a very specific and very clear arrangement on this particular matter and what is important is that the Australian Capital Territory is the Commonwealth’s seat of government.

Perhaps I can make, as an aside here, an observation which I think Senator Brown will no doubt find interesting about this matter, which is that the Constitution—and I give him the benefit of the doubt of being familiar with this particular provision—also gives power of representation in the federal parliament in relation to territories, and that particular right is contained within section 122 of the Constitution. And, of course, the Commonwealth has provided in relation to that particular power; it has provided the opportunity for two territories to have two senators sitting here and for members to take their places in the other place.

What is interesting about this particular power, what is, I think, noticeable about this power, in terms of comparative constitutional law, is that the United States, one of the great democracies on the planet and one often held up as being the exemplar of democracy, is a place where the territories do not have that right of representation in the federal parliament. So here we have, in relation to our own constitution, our own parliament, a right of representation for the territories. So they already have a particular democratic advantage, which is not given to people who reside in territories in the United States and in other places.

Let me return to my main theme, which is this compact that I alluded to. For a long period of time, the Commonwealth parliament was the parliament of the Australian Capital Territory. It made laws which were relevant to the people in the territory. It was the place where decisions were made about the direction and the future of the citizens of the capital territory and, for the most part, that was a reasonably happy arrangement.

Of course, it was decided in 1988 that this arrangement should be changed. The Hawke government obviously resolved that there should be a change in these matters and so we then had the Australian Capital Territory (Self-Government) Act, which provided for the folks of the Australian Capital Territory to have certain kinds of powers in relation to their own governance.

But this was a qualified self-government. These were not powers given to the Australian Capital Territory as being the same as the states’; these were not powers which were given to create sovereign states, of the nature of Queensland or Victoria or Tasmania or Western Australia or other states of the Commonwealth; these were essentially qualified powers. Very specifically, clearly, from the constitutional design, from the design of that particular act, they were qualified powers given to the territory legislature; essentially—and I do not mean to be ungenerous in making this remark—they were the kinds of powers that might be available to a local government, and I say this without wishing to offend the good citizens of the Australian Capital Territory.

And, of course, there was good reason for this. It was not just a coincidence that this occurred; it was not just a serendipitous use of powers; it was not just a casual part of a constitutional design. This particular decision, with regard to the powers of the ACT legislature—and this reflects the wider point that I was making earlier about the Commonwealth having the power to make legislation for the territories—was made in a purposeful way. It took a particular point of view. It was part of a specific intention.

The ACT is not just any territory of the Commonwealth. The Australian Capital Territory is not just any piece of geography on the Australian continent. It is the seat of the Australian government. It is the place from which the Commonwealth is governed and that gives it a unique quality. It gives it a unique character. And we know from the debates in relation to the formation of the Commonwealth, the constitutional debates of the 1890s, how fundamentally important this idea was to the founding fathers. We know, from reading the constitutional debates—with which, I am sure, Senator Brown is very familiar—how anxious they were to find a place somewhere between Sydney and Melbourne which could be appropriately identified as the seat of government.

Indeed, a specific provision was included in the Constitution on this particular issue. It is section 125 which alludes to this particular point, and section 125 says:

The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth ...

The point is that the seat of government ‘shall be vested in and belong to the Commonwealth’. So it is very clear from the constitutional design: this was not just, as I said, happenstance; it was not just serendipitous; this was a specific part of the constitutional design of the founding fathers—that they wanted a place of government and they wanted it to be a unique place in the context of the Commonwealth. And, in reflection of that particular proposition, they made Canberra the seat of government and they made specific provision for it.

The logical constitutional consequence of that view was that the Commonwealth should have power in relation to the seat of government, as provided for in section 52 of the Constitution, because it recognised the unique nature of the territory and the unique significance within the Commonwealth of this particular part of the country.

The 1988 act in a way compromises that idea. It compromises that unique constitutional situation. It allows the Australian Capital Territory legislature to make laws for its citizens on a wide range of issues, as we all know—on housing matters, transport matters, social security, parks and various other things. It has the right to do that, and I do not have any reason to quarrel with that. I think there is no reason on God’s earth why that opportunity should not be given to the local legislature.

Indeed, the citizens of Canberra have many privileges from living in this part of the Commonwealth. I think we would all agree that Canberra is a most charming city, a place of rural disposition and, perhaps, urban pretension on occasions. It is a wonderful place to live, a great place to bring up a family. I enjoyed living here for five years myself during my earlier years. Citizens of the Australian Capital Territory have the benefit of many privileges. They have access to all the great national institutions of the country, to all the great public buildings, of which Parliament House is but one. But one thing they do not have is legislative sovereignty over their affairs.

Senator Brown is clearly troubled by this—not substantively, but, as I said at the very beginning of my remarks, for what I regard as rather tawdry political purposes. He sees this—presumably the Greens see this—as a stain on the fabric of Australian democracy. I do not. I see this as one of the very few costs that the citizens of the Australian Capital Territory must bear for living in this very privileged part of the Commonwealth, the seat of government, the place identified within the Constitution as being specifically designed to create a unique environment for the national parliament and for the administration and governance of the Commonwealth. (Time expired)

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I am delighted to enter this debate on the Australian Capital Territory (Self-Government) Amendment (Disallowance Power of the Commonwealth) Bill 2006. I support most of the arguments that my colleague from Queensland Senator Trood has very carefully and eloquently delivered to the chamber. I had a glance at Senator Brown’s second reading speech; I have to say that it goes down in history as quite the shortest speech that Senator Brown has ever made. It is strange that, when we are trying to get important government legislation through this parliament, we continually have not only long speeches from Senator Brown at the second reading stage—

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Mr Acting Deputy President, I raise a point of order. My second reading speech was delivered here in this senator’s absence. It was by no means the shortest speech; it was one to be listened to, and he ought to have been here to have heard it.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

There is no point of order.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I have here what is said to be Senator Brown’s second reading speech, which is in Hansard and which comprises five paragraphs.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

You don’t understand the forms of this place.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

Is this not your speech, Senator Brown? Perhaps we should conduct an inquiry into who has fraudulently put in this speech as your second reading speech.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

It is your inability to understand the processes of the Senate on Thursday afternoons.

The Acting Deputy President:

Order! Senator Macdonald, please address your remarks through the chair.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I am being attacked by Senator Brown in the course of my speech, and it has distracted me. Certainly, his speech was very short. When we are trying to get important legislation through the parliament, Senator Brown speaks not only for 20 minutes in the second reading debate but for the maximum allowable time in the committee stage. Back in the days when we were introducing the regional forest agreement legislation, Senator Brown detained the chamber for 48 hours—was it, Senator Brown?

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I think it was two weeks.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

Two weeks, was it? Your arguments in that case were even more puerile, if I might say, with respect, than your arguments here. At least I can understand what you are getting at here. But I think your arguments on the regional forest agreement demonstrated that you had no interest whatsoever in sustainable forestry, no interest in forestry at all and, in fact, very little interest in the environment. The only significant thing in that debate was that Senator Brown was actually talking about something that was related to the environment. Most of the issues he talks about in this chamber have nothing to do with the environment. I always think it is a bit of a fraud on the Australian public that Senator Brown masquerades under the name of the Australian Greens, when most of his contributions to this place have little to do with the environment, certainly little to do with sustainability.

I quite clearly oppose Senator Brown’s bill. Shock, horror, one might say; there is one thing I think Senator Brown and I might have agreed upon, which is vaguely related to the bill before us today—that is, the issue of euthanasia. We had a similar disallowance debate some years ago on the question of euthanasia. At that time I agreed with the substance of the debate. I think Senator Brown and I in that instance might have curiously been on the one side. I think at the time I was the federal minister for the territories, and there were two reasons which led me to Senator Brown’s side of the substantive debate. One was that, as territories minister, I thought we should at least have some regard for the Northern Territory parliament. Perhaps more importantly, in a substantive way, for all the reasons I mentioned in that speech, I agreed with the proposal to effectively allow euthanasia. In speaking on this debate, I certainly do not want to rehash the arguments surrounding the controversies in the euthanasia debate. Suffice to say that, in that instance, Senator Brown and I were on the same side insofar as the substantive issue was concerned.

The bill before us at the moment is not one that I think should be supported by the chamber. The Constitution is a document that was brought together over a substantial period of time by some of the best minds that were then available in what I can only refer to as the continent of Australia; it was not the Commonwealth of Australia, because that was created by the Constitution. Mr Acting Deputy President, as you would well know, there were some colonies that came together, and representatives of those colonies met for many days, over a period of many years, to get a constitution that would suit what was to become the Commonwealth of Australia. Rather than having six colonies, we were joining together in one nation.

Our founding fathers had to carefully consider the best form of arrangements for running what would become the Commonwealth of Australia—and this constitution was put together. No-one just woke up one morning and said: ‘A constitution is a good idea. Let’s write this down and make it the rules for our country into the future.’ This written document, the Constitution, was the subject of many hours, many days, many weeks, many years of intense scrutiny, debate and very careful legal drafting. Of course, it has stood the test of time. On many occasions, there have been attempts to change the Constitution. There have been some occasions on which the Constitution has been changed, but almost invariably the Constitution has not been changed.

One change did happen—and one might say that the constitutional fathers were not quite right in this—to allow Indigenous people to have, put simply, the rights that other Australians had. One might say that demonstrated that the founding fathers did not have the best document for the Constitution of our nation but, of course, things were quite different in those days. I suspect that, in the days when that clause was originally introduced, people would have thought it was the right thing for everyone involved, including Indigenous people. I am delighted that a Liberal government led the charge to have that changed. That is one instance in which the people of Australia, under the leadership of a Liberal government, brought about a change in the Constitution of Australia.

That change occurred because attitudes had changed dramatically. It is a bit like the debate we are having about the 457 visas, which, it seems, the Labor Party are totally opposed to. Some of their rhetoric—certainly, Mr Beazley’s rhetoric—has shades of the old White Australia policy, which, as you know, was introduced and supported—

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Mr Acting Deputy President, I rise on a point of order. I know the government wants to filibuster so that no vote is taken on this before six o’clock—and they may do that—but the senator has drifted right away from the topic of executive power over the ACT, and I ask you to call him back to it.

The Acting Deputy President:

There is no point of order.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I am talking about the Constitution, which, as I understand it, is the subject of Senator Brown’s motion. I am talking about the powers given to this parliament and the territories under the Constitution. I am simply describing how a Liberal government led the charge to change the Constitution to treat Indigenous Australians like every other Australian—and I am very proud of that. I am just making an observation on how attitudes changed between the late 1800s and the mid-1960s, when that was changed. Back in the earlier part of our nationhood, the Labor Party and the unions were totally opposed to bringing coloured labour into Australia. I think the unions in those days did that for what they thought were the right reasons, but it was a fairly disgraceful episode in our history. Again, I am delighted that a Liberal government did away with the White Australia policy, which had been supported by the unions for so long—and by the party the unions supported.

Senator Brown is correct in that I have digressed just a little, and I will return to my comments on the Constitution. The Constitution was put together by people who had the best interests of Australia at heart. It was an exercise that went very carefully into every single element of every single section or clause of the Constitution. One of the sections dealt with at that time was section 122, which gave power to the Commonwealth to make laws over the territories. Again, Senator Brown, with his bill, wants to change that arrangement. He has explained why he wants to do so, as I say, in the shortest speech I have ever heard him make. However, that particular provision resulted from the work of some of the best legal minds in the country at that time—and I think those legal minds would have stood the test of time. Were our founding forefathers here today, they would still be recognised as some of the finest legal minds in the world. Those great lawyers and great statesmen of their time, including Sir Henry Parkes and Sir Samuel Griffith—a great Queenslander; I think I can say proudly that he comes from my state—would have gone through this very carefully. They would have looked at section 122 and would have decided that the Commonwealth should have law-making power over the territories.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

It says ‘the parliament’, not ‘the Commonwealth’.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

Does it? Thank you, Senator Brown. I stand corrected. It provided for the parliament. I do not have the Constitution in front of me, so I am doing something that is always dangerous to do and taking you at your word. However, let me say either the Commonwealth or the parliament—or whoever. The parliament should have law-making power over the territories. Why would that have been? Of course, I was not around at the time those debates were had, but one can imagine—and from my reading of history—that the founding fathers put section 122 into the Constitution because there was a belief that only fully fledged states of the new Commonwealth should have law-making power that was sacrosanct and that could not be challenged.

However, the territories—as I say, as a former territories minister, I have been a great supporter of the territories over the years—are relatively small. Their budgets are supported very substantially by the national government. The numbers of people in those territories, certainly at the time the Constitution was adopted, were—even as they relatively are today—smallish. Arrangements were put in place for those territories—again, all in the best interests of territorians, one might say—which provided, amongst other things, that the Commonwealth should have law-making power over the territories. There was this arrangement that the Governor-General could exercise the disallowance power. However, the Governor-General’s exercise of that power was always challengeable in parliament, so it was an instrument that could be disallowed by the parliament. We have been through this in an instance I mentioned previously, but this disallowance power has been used rarely by the Australian government and, even then, only where the national interest needed to be protected.

Senator Brown and I might wonder whether in the last instance, when the issue was euthanasia, which I have spoken of, the national interest needed protection. However, we had our vote on it at the time. As I recall, in that particular instance, the issue was not being determined by a government; it was being determined by a free vote. So, if Senator Brown and I wanted to blame someone there, we could not blame the government—and that would be the first time ever that Senator Brown would not have blamed the Howard government. When it rains, I think Senator Brown blames the Howard government. However, in that instance, it was a free vote.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I’d be happy to blame the Howard government for rain.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

If it rained now, we would be heroes. Joh Bjelke-Petersen always used to claim that whenever it rained, particularly in a drought time, it was his doing. I was not a great fan of Bjelke-Petersen’s, I might say, and I knew that that was not true. However, certainly that disallowance power has been used by the Australian government only where the national interest needed to be protected by this parliament. I was just making the point that it was not even the Australian government in that instance; it was the free vote of all parliamentarians here. Senator Brown and I happened to be on the wrong side then, but the result of that vote resulted from the will of those who had been elected by all Australians to represent them in this house and in the other place. The exercise of that disallowance power, as I say, is subject to approval by the Governor-General. It is a disallowable instrument and it can be disallowed by parliament.

Senator Brown’s reason, as I understand it from his very brief speech, is that he wants parliamentary scrutiny of these disallowance powers. However, what Senator Brown is proposing will not in any way increase parliamentary scrutiny. The debate I referred to previously and other debates that we have had where there has been an overriding of a territory power that has been subject to a disallowance motion have been long, heated, passionate and emotional. However, you could not for a moment suggest that they have lacked the parliamentary scrutiny that the disallowance power has. I think it is probably a good thing too that we do have this ability to have parliamentary scrutiny. But this proposal of Senator Brown’s will in no way increase the parliamentary scrutiny of that disallowance power.

Under Senator Brown’s bill, the Australian government would have to make laws to override unacceptable territory laws. Having new laws passed to repeal other new laws will be confusing for citizens, it will extend the time for doing these things and it will make the whole process much more drawn out. However, under the current system, you can get a decision. It may not be a decision that we all like. As I say, there has been an instance where Senator Brown and I probably did not like the outcome. However, it is there. (Time expired)

Nick Minchin (SA, Liberal Party, Minister for Finance and Administration) Share this | Link to this | Hansard source

I am delighted to follow Senator Ian Macdonald in this debate. He has so eloquently put the case against this bill, and I commend his contribution to the Senate. Given the experience that Senator Macdonald has had as a former Minister for Regional Services, Territories and Local Government, he does speak with great experience and knowledge of this area.

We are debating the Australian Capital Territory (Self-Government) Amendment (Disallowance Power of the Commonwealth) Bill 2006, as proposed by Senator Brown. This is an intriguing bill because it involves a substantial diminution in the authority of the Commonwealth over the Australian Capital Territory. I notice it does not refer to the Northern Territory—it is a bill restricted to the power of the Commonwealth with respect to the Australian Capital Territory—but it does involve a very significant wind-back of the existing arrangements. For Liberals who, like me, are genuinely federalist in philosophical inclination, these sorts of debates are always not easy; indeed, my involvement in these matters has always tested my underlying commitment to a federal structure.

I do have a genuine philosophical inclination to subsidiarity—that is, the proposition that decisions should be made, in as many cases as possible, by those closest to the people most affected by those decisions. That is the essence of federalism, it is the essence of the Australian Constitution and the constitutional structure of which we have all been the beneficiaries. But that constitutional structure is a function of the six state colonies coming together to form the Commonwealth and by agreement. Their Constitution is an agreement under which the six state colonies agreed to hand over certain of their powers to a central government, the Commonwealth.

The Northern Territory was then part of South Australia. We South Australians sometimes regret that our forebears handed over the Northern Territory to the Commonwealth and wonder what might have been if the Northern Territory had remained part of the great state of ‘Central Australia’. But that was not to be, and now we have not only the Australian Capital Territory but the Northern Territory.

I made a contribution on the euthanasia bill, in which I distinguished a territory from a state on the basis that the Commonwealth had a very clear and distinct responsibility—ultimate responsibility—for the Northern Territory as a territory not a state. The Australian Capital Territory is very much in that vein. A clear constitutional responsibility rests with the Commonwealth for the Australian Capital Territory, and I think that would be true of every country in the world where there is a distinct governance arrangement for the capital city, whether it is the District of Columbia or the Australian Capital Territory.

Australia has gone a long way towards granting the elements of self-government to the seat of its capital city—further than many others. Certainly my party has been proudly involved in that. Many would dispute the arrangements that we have put in place for the Australian Capital Territory. Wherever I go, both in the ACT itself and around Australia, many suggest that the more appropriate arrangement for the Australian Capital Territory would be what you might call a city council type arrangement—for example, a Brisbane City Council type arrangement or some such other. However, we do have this form of self-government but always on the understanding and on the basis that the ultimate authority over the territory does, must and should continue to reside with the Commonwealth.

This is the capital city for all Australians; it is not just a city for its residents. It has had a huge investment in it by all Australians through the taxes that we collect. Many of the nation’s great institutions are in this city, so the proposition that the Commonwealth should absolve itself of its fundamental responsibilities through this act or any other act or bill that would seek to diminish those powers is contrary to the essential responsibility which the Commonwealth must have for the seat of national government—for the capital city that we in this country enjoy.

Having said that, it is worth going to the motivation for Senator Brown’s proposition. Clearly, as others have acknowledged, Senator Brown was motivated to bring this bill forward by the Governor-General’s disallowance of the ACT civil unions legislation. On my advice, this is the only time in which the authority of the Commonwealth over the ACT has ever been exercised. So what we are talking about here is a very rare, indeed singular, example of the exercise of this ultimate authority. It shows that self-government does work well and that, in the history of self-government, there has not been the need for the Commonwealth to exercise this ultimate authority. For Senator Brown to purport that we must immediately remove this authority simply because of the singular exercise of that authority in this one particular case is rather far-fetched. If we were dealing with a situation where the Governor-General was disallowing ACT bills at the drop of a hat—if this were the 100th time that it had occurred—then you might more closely examine the proposition that Senator Brown has put before us. But it is this one singular proposition.

The background to that proposition should be considered because we went to enormous lengths to work with the ACT to see whether a civil unions bill could be developed that was genuinely a civil unions bill. The point was made to the ACT repeatedly that anything that could properly and reasonably be seen to be a bill that impacted upon the Commonwealth’s prerogatives with respect to the institution of marriage would not be acceptable to the Commonwealth. That was said repeatedly. We gave the ACT every opportunity to restructure its Civil Unions Act to ensure that it did not contradict the Commonwealth’s responsibility for and its definition of the institution of marriage. Indeed, the ACT refused to accede to that. The bill says that a civil union is different from a marriage.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

Order! The time allocated for the debate has expired.