I spoke in parliament yesterday on the Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Bill 2011, which passed parliament today.
31 October 2011
When Canberra turns on its charm and offers that perfect day when the sun shines, the water glistens and the temperature is not too cold or too hot, it is easy to see how this region charmed the federal parliamentarians who visited in 1906 and 1907 on their tour of potential sites for the new nation’s capital. Federal politician King O’Malley once said of the decision about where to site the nation’s capital:
‘I want us to have a climate where men can hope. We cannot have hope in hot countries.’
The saying goes that success comes from a lot of hard work and a bit of luck. Reflecting on the cities which could have been the seat of government, Canberra had plenty of luck. At the outset, the city was not the preferred location of either the media or the politicians. But for a perfect Canberra day on 13 August 1906, and again on 23 August 1907, the parochial interests of a Premier and a change of heart and vote by a Victorian senator, our nation’s capital could have been somewhere entirely different.
On the banks of the Snowy River, 50 kilometres south-west of Cooma, lies the town of Dalgety. With one pub and 75 residents, you would hardly know the town was named in the 1904 Seat of Government Act as the location of the new federal parliament. But state and local interests collided with the desires of national leaders. Dalgety was located in the electorate of the then Minister for Home Affairs, Sir William Lyne. Keeping with the traditions of Macquarie Street, New South Wales Premier Joseph Carruthers refused to cede the town to the federal government, believing Dalgety to be too close to Victoria. Carruthers valiantly declared Tumut, Yass or Lyndhurst as the only sites for the nation’s capital. By coincidence, all three towns happen to be in the Premier’s electorate.
Dalgety remained the favourite of the Victorian and Western Australian senators, who made numerous attempts to have it reinstated as the site for the capital, but Carruthers’s determination to act in the interests of New South Wales was such that he threatened to take the federal government to the new High Court for trespass should any survey pegs be driven into the ground. Eventually, the Dalgety backers gave up and, by 1907, there was a growing consensus that the site of the capital should be somewhere in the triangle formed between the towns of Goulburn, Yass and Queanbeyan.
With the trout-fishing contingent now having shifted their support to Tumut, the decision came down to Canberra versus Tumut. In December 1907, the House of Representatives voted 39 to 33 in favour of Canberra, but in the Senate Canberra and Tumut were tied 18 votes apiece. Canberra owes its status to a Melburnian who believed the future lay in agriculture and mining. Anti-socialist Senator James McColl changed his vote and backed Canberra. Then, like now, the numbers in Australian politics were finely balanced, but Andrew Fisher showed us that a close vote does not stop you getting things done. A decision was finally made to select Canberra as the nation’s capital.
Besides its unique history, Canberra is so much more than our nation’s capital. It is home to over 350,000 Australians. It is a place of cultural icons and historic events. It is a place where Canberrans exercise their right to elect their own representatives to govern and legislate in their interests. But Canberrans do not enjoy the legislative freedoms of their state counterparts. In March of this year, I joined my parliamentary colleague Gai Brodtmann, the member for Canberra, in taking the unusual step of making a submission to the Senate’s Legal and Constitutional Affairs Legislation Committee inquiry into the Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Commonwealth) Bill 2010. We argued that section 35 of the Australian Capital Territory (Self-Government) Act affords the Governor-General the power to disallow an enactment of the ACT Legislative Assembly by legislative instrument within six months after it is made. We argued that negatively impacts on the independence of the ACT Legislative Assembly and that the ability of the Commonwealth executive with the stroke of a pen to overturn enactments of the Legislative Assembly is a liability state parliaments are not subject to. The repeal of section 35 of the ACT (Self-Government) Act will ensure this by removing the power of the executive to intervene without the agreement of this parliament.
Territorians are not asking for special treatment; they are just asking for a fair go. Of course, this bill does not affect the constitutional right of this parliament to make laws for the territories; it only seeks to ensure that any strike down is done by parliament, not by a minister alone. I agree with the majority report of the Senate Legal and Constitutional Affairs Legislation Committee: it is a matter of principle; the power of the federal executive to override legislation in the ACT is inappropriate and unwarranted. As the minister has noted, many experts and the Northern Territory and the ACT governments support the bill. It is strange that the member for Solomon and Senator Gary Humphries, a former ACT Chief Minister, do not.
As things currently stand, the Governor-General, acting on the advice of the Commonwealth, can disallow or recommend amendment to territory legislation to provide the executive government with the ability to protect its interests in the territories. This bill seeks to remove the Governor-General’s power to disallow or recommend amendments to laws made by territories under their self-government acts. The effect of this would be to remove the Commonwealth executive’s ability to override legislation passed by the territories’ legislative assemblies.
Equally importantly, let us look at what this bill does not do. Under this bill the Commonwealth still retains the ability to override legislation passed by the legislative assemblies of self-governed territories through the plenary power of section 122 of the Constitution. That section commences: ‘The parliament may make laws for the government of any territory’. Repealing section 35 and section 9 of the respective ACT and Northern Territory self-government acts does not affect the constitutional power of the Commonwealth. What it does do is raise the bar on any overriding of a territory law. It must be done by the parliament, with every parliamentarian having the opportunity to speak in that debate.
The ACT’s path to self-government has a history of resistance. John Overall, the head of the National Capital Development Commission from 1957 to 1972, said:
‘Canberra residents may have been demanding a greater say in their destiny, but they rejected attempts by the Federal Government to have them take control of their own affairs through self-government. They appeared reluctant to accept the responsibility of governing themselves, or perhaps, the increased costs which they feared would inevitably follow the handover of power from the Federal Government to a local body.’
Despite such views, many Canberrans still wanted self-government and under the Whitlam government a legislative assembly was formed in 1974. However, the Commonwealth tended to override or ignore its wishes. In 1975 a supporter of self-government for the ACT, Tony Staley, accepted the post of Minister for the Capital Territory. However, the model he proposed found opposition, in part because it failed to address territory funding arrangements.
With the Northern Territory achieving self-government in 1978, it was suggested that self-government must also be appropriate for the ACT. After all, the ACT had a larger population and was growing faster. The next person to run the ministry, Robert Ellicott, held a referendum on the issue of self-government in 1978. The referendum provided the residents of the territory with three options: (1) that self-government be granted to the territory by delegating functions to a locally elected legislative body; (2) that a locally elected legislative body be established in the territory with local government type legislative and executive functions; or (3) that the present arrangements for governing the territory should continue for the time being. The referendum failed but it did not end the debate.
There were pressures that still continued to push the ACT to self-government: the national consistency of government, the re-enfranchisement of the community, and financial pressures. It was argued that self-government would allow the ACT to be placed on the same financial footing as other states and as the Northern Territory. Just prior to self-government, Bill Harris, the head of the ACT administration, said this was the fundamental reason for the eventual realisation of self-government in the Territory.
In 1988, the minister for the ACT, Gary Punch, received a report recommending the abolition of the National Capital Development Commission and the formation of a locally elected government. He recommended the Hawke government accept the report’s findings. Clyde Holding, Minister for Immigration, Local Government and Ethnic Affairs, introduced legislation to grant self-government to the territory in October 1988. On 6 December 1988, the ACT was granted full self-government with the passage of the ACT (Self-Government) Act. The first ACT election was held three months later, on 4 March 1989. Despite the initial resistance to self-government, despite the bumpy path travelled to get there, after 23 years ACT self-government is well established and has proven successful. As the minister has pointed out, the ACT parliament has shown itself to be a mature debating chamber, the equal of any state or territory legislature around the country. What was the baby of 1988 is now an adult, holding its place confidently in the world. It is a government that makes its own decisions responsibly and is held accountable for them.
I would like to pay tribute to Jon Stanhope, former Chief Minister of the ACT, and Katy Gallagher, who has stepped confidently into Jon’s shoes, continuing practices such as Chief Minister Talkback, a forum that allows Canberrans to speak directly to their Chief Minister.
The majority report of the committee was correct in supporting the objectives of the bill: to remove the power of the executive to override legislation with the stroke of a ministerial pen and replace it with a parliamentary process, more in keeping with the democratic practices of today.
Back in 1988, when I was a 16-year-old work experience kid, I worked in the office of John Langmore, the then federal member for Fraser. I remember John Langmore telling me the story of serving as the member for Fraser in the early 1980s, in the days before self-government. One day a constituent phoned him at home at 5 am. The constituent said to him, ‘Mate, the garbos have woken me up with the banging of my bins outside, and I figure that if I’m awake the member for Fraser should be awake as well.’
The ACT has come a long way since then. As the committee concluded, the benefits of the disallowance bill—enhancing democracy in the ACT and in the Northern Territory—outweigh any disadvantages. This is a step in the right direction towards giving the people of the ACT—and Fraser—the same legislative freedoms and rights as their state counterparts. Territorians deserve accountable, equitable and transparent government. They deserve to know that their laws will not be struck down with the stroke of a ministerial pen. I commend the bill to the House.