Page 3747 - Week 12 - Wednesday, 22 November 2006
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the same line of logic that is contained in the motion you would be saying that we should get rid of the Senate and the Governor-General—the whole lot. But, of course, that line of logic does not work when applied to the commonwealth because such an outcome would not suit those opposite.
The premise of democratic governance in Australia is a system of checks and balances. I was staggered to hear a former Attorney-General say that this does not exist anywhere else but the ACT. I have to draw attention to the fact that there is a power of disallowance in the text of the parent instrument of every single polity in the Australian federation, not just the ACT. Indeed, it exists in section 59 of the Australian constitution, which states:
The Queen may disallow any law within one year from the Governor-General’s assent, and such disallowance on being made known by the Governor-General by speech or message to each of the Houses of the Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known.
By convention this has not been enforced or applied. Conventions have developed around these rather textual provisions—the flesh on the bones, as it were—in the traditional way that Westminster derivative government operates. As a result, the power of disallowance of the Queen or her representative has rarely, if ever, been used in Australia. However, this is only as a result of convention, and the beauty of this is that there is flexibility in terms of the actual functioning of a polity, depending on its particular nature.
When we consider the particular of the nature of the ACT as compared with all the other Australian legislatures, we know that the territory is quite distinctive because it is the place within which the commonwealth parliament sits. An important point flows from this difference. Any legislature with control over the ACT could potentially control the commonwealth parliament, which sits within the territory. Surely Labor can see that it is contrary to any notion of democracy, no matter how vague, that the constituents of the ACT could potentially control the parliament which legislates for the whole of Australia. The result is that the commonwealth must have some supervisory role over any ACT legislature in order to preserve its independence and cut off the possibility of an ACT legislature, the local legislator of the ACT, holding the rest of Australia to ransom. So there are eminently logical reasons relating to the good governance of Australia that make it essential that these provisions exist.
I found it extraordinary that Mr Corbell should say that it is 300 years since an unelected person overturned a law made by a democratically elected legislature. I do not know if the Attorney-General has forgotten anything about the separation of powers and the role of courts. I am quite well aware that a week ago the Labor Party in this place was hoping against all hope that the High Court of Australia would overturn one of the democratically passed laws of this nation. How can they subsequently say that the unelected officials who make up the High Court, who may ultimately have the capacity to disallow a law, should be disregarded? The fact is that Mr Corbell said there should be absolutely no control once a law is passed though a house of parliament—or an assembly in this case. He talks about things being constitutionally suspect. I have talked about the provisions that exist at the
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