Page 3742 - Week 12 - Wednesday, 22 November 2006
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to the federal government. However, the ACT’s self-government act could be seen to be unconstitutional, as it gives the power to disallow ACT legislation to the federal parliament and the federal executive.
The Greens’ legislation sought to remove this power from the executive and to leave no doubt that disallowance of any ACT law should be by legislation passed by both houses of federal parliament. Unfortunately, due to a majority of Liberals and their coalition supporters in the Senate, it did not receive the Senate’s agreement. I think that we all know and value the role that the Senate has played in our commonwealth parliament. It is seen by most Australians as a house of review and in this case a positive vote in favour of Senator Brown’s motion would have made the difference.
I acknowledge the pro-executive argument that the federal parliament can delegate powers to the executive, as it did in the ACT (Self-Government) Act, but one is still entitled to question whether this is democratic and fair. That, I believe, is what we are debating today. There is a good reason for having two houses within the federal parliament. That was very thoughtfully planned by our forefathers, who argued for years about the constitution which would eventually govern us. We have two levels of government as well. We have a federal government and we have state and territory governments. We actually have a third level, the local government system, which we are inclined to forget about here.
Our democratic system was designed in this way in order to protect minorities from the tyranny of the majority. How ironic is it, then, that legislation passed in a small territory to recognise the human rights of a minority could then be overturned by a centralist majority government, the very thing that I believe our forefathers set out in the constitution to avoid? Liberals can well argue that the process for overturning the Civil Unions Act was democratic, as the Howard executive placed the notice on the list of disallowable instruments and it was then up to members of parliament who so choose to move to disallow the notice. In this case, and the only such case, it took a disallowance motion from the Greens, supported by Senators Ludwig and Stott Despoja, to ensure that a public debate was held on the subject. If that had not occurred, the Howard government, without reference to the national parliament, would have overridden the civil unions legislation.
There are arguments for both sides but, to take the precautionary approach and to ensure the rights of a minority are protected from the majority in a democratic manner, should we not ensure that all disallowances of territory legislation are debated and voted on by the federal parliament so that the public can scrutinise the opinions of those who have the power to suppress legislation democratically arrived at? Note that in the case of the Northern Territory euthanasia legislation in 1996 the government did take the step of supporting a private member’s bill to overturn that legislation.
What makes it worse in the case of civil unions is that had the Howard government genuinely believed the ACT had overstepped the constitutional powers of the federal parliament it would have had no problems in drafting legislation and ensuring a debate was held, let alone debate it within the Liberal Party. We do not know what debates occurred within the Liberal Party. They may have been very carefully circumvented by Howard using executive powers.
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