Page 3733 - Week 12 - Wednesday, 22 November 2006
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It is a direct attack on the democratic principle for the commonwealth to substitute its own views for those elected to represent the people of the ACT. By convention, the Crown seldom intervenes once a law is made so as to delay or frustrate the commencement of the law, save in unusual circumstances where the law, because of its exceptional circumstances, might be beyond the power of the parliament or is otherwise defective.
The autocratic action of the commonwealth executive to quash the law of an elected parliament is constitutionally suspect and politically bad. If the commonwealth has concerns with a territory law, it has other options that do not involve such an overbearing exercise of power.
Rather than asking the Governor-General—elected by no-one—to disallow enactments, the commonwealth could choose the option of passing an inconsistent or overriding commonwealth law. This would subject the law to scrutiny in the parliament even if not by the elected representatives of the ACT.
If the commonwealth has legitimate concerns about the constitutionality of an ACT enactment, it also has the option of testing the matter in the courts. The Howard government chose to do none of these things, opting instead to overbearingly overrule, using the Queen’s representative, to quash the law made by an elected parliament.
The Howard government has treated the ACT Assembly as though it is an errant child, or a wayward colony. I found it particularly telling when Senator Humphries said, “It is the child of the federal parliament, do not forget.” While this approach may have been the norm with Britain’s treatment of the colonies, even then the executive arm of government did not have carte blanche.
The common law developed a series of constitutional principles, enshrined in the law of public trust, which provides protections against arbitrary executive action. The actions that might amount to a breach of public trust include neglect or breach of a public office, oppression or extortion, but the law has not attempted to describe all of the circumstances in which a breach might be found.
While the commonwealth executive may appear to have broad discretion to use this old autocratic process, the action itself may still be a breach of the public trust. It is an area of law that, over the years, has quietly slipped from the memories of modern constitutional lawyers because it has been some time since a governor or the executive chose to attack a law made by a parliament. The actions of the Howard government in instructing the Governor-General to override the Civil Unions Act set a dangerous precedent and should give us, on all sides of this chamber, a sense of unease.
The significance of the Australian Capital Territory (Self-Government) Act 1988 to the ACT is obvious. The passing of the act by the commonwealth government effectively established the ACT as a political body. The act, which has been amended a number of times, is the founding constitution of the territory. It recognises the fundamental right of the people of the ACT to govern themselves—that is, to enjoy the same democratic rights and responsibilities enjoyed by other Australians in other jurisdictions.
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