Page 3736 - Week 12 - Wednesday, 22 November 2006
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minister and he thought this self-government thing was pretty good. He was a very fine minister, might I say. But the First Assembly was a bit of a farce. The Assembly has settled down. But you have to remember that it was set up by the Labor government.
There is an element of hypocrisy in this regard. I recall that several years ago—it must have been under a Liberal government—certain Labor members of this place went to see their colleagues federally in relation to Gungahlin Drive. They were very keen to see what their colleagues could do to help—perhaps by invoking some federal powers there—because they did not agree on a particular point.
Mr Speaker, the principle here in terms of the self-government act is that the Australian government does not normally intervene in the democratic government of any self-governing territories. Apparently, the disallowance of our civil unions legislation on 13 June 2006 was the first use by that government of a disallowance power in the ACT. I thought there had been two. I am mistaken, apparently, as that was the first time.
The commonwealth’s law-making powers over the territories under section 122 of the constitution are largely unconstrained. The commonwealth also has specific powers to disallow or recommend amendments to ACT legislation under its self-government legislation for the ACT. Section 35 of the Australian Capital Territory (Self-Government) Act 1988, a commonwealth act that is referred to as the self-government act, provides that the Governor-General may, within six months of an ACT enactment being made, disallow the ACT enactment in whole or part under section 35 (2) or recommend amendments to the ACT Legislative Assembly under section 35 (4). An instrument of disallowance is itself disallowable by either house of the Australian parliament; so there is actually another check and balance there. That instrument is disallowable in itself.
I turn to whether the ACT can overturn the disallowance power. The authority for the power of the Australian government to override legislation of a self-governing territory derives ultimately from section 122 of the constitution, the territories power. The Australian parliament has enacted the self-government act for the ACT. If the ACT Legislative Assembly made a law that purported to override the provisions of the self-government act, that ACT law could be disallowed by the commonwealth, using section 35 of the self-government act.
We are a territory, as defined by the constitution, and section 122 of the constitution does cause a bit of a problem in itself. We are unlike the states. Of course, even the states can have things overridden by legislation being enacted in the federal parliament which is inconsistent with state legislation—just as, indeed, that can occur in the ACT, and it does occur. In relation to the case in point here, the catalyst for all this, the same-sex union bill, must have been the first time the commonwealth actually intervened and used the disallowance power.
Mr Corbell: The first time ever.
MR STEFANIAK: The first time ever; you are right, Mr Corbell. But there were problems with that bill. There were problems that we pointed out to you and we put
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