Page 2407 - Week 07 - Wednesday, 17 June 2009
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This high ideal—the promise of democracy—has not been fully realised.
Following the passage of the Civil Unions Act 2006 by the Legislative Assembly for the Australian Capital Territory, a claim was put by the Commonwealth that the Civil Unions Act was inconsistent with the Marriage Act 1961 (Cwlth) and that it would, through the Governor-General, exercise the disallowance provisions established in subsection 35(2) of the Australian Capital Territory (Self-Government) Act 1988 to void the civil unions law.
On 13 June 2006, the Commonwealth Executive, through legal force and without political mandate, overrode an enactment of the Legislative Assembly for the Australian Capital Territory and, by extension, overrode the will of people of the Australian Capital Territory. The disallowance of the Civil Unions Act was the first and only time such a power has been used against an Australian Territory in the history of the Commonwealth Parliament.
In passing the Territory’s self-government legislation over two decades ago, the Minister for the Territories emphasised in his second reading speech that the subsection 35(2) disallowance provisions were “instruments of last resort and it is the Government’s intention to resolve any potential conflict with the ACT by consultation and negotiation.”.
The Australian Capital Territory and its legislature having seen the exercise of these powers in the arbitrary manner that occurred on 13 June 2006, without genuine consultation and negotiation as envisaged by the Minister for the Territories, has no confidence that a similar incursion into the affairs of the Australian Capital Territory will not happen again at some time in the future. The disallowance and the continuing effect of subsection 35(2) creates a high degree of uncertainty as to the status of existing and future enactments of the Legislative Assembly for the Australian Capital Territory and the scope of the Assembly’s law making powers.
The ongoing operation of the disallowance provisions within the Self-Government Act also provides for a lower standard of democracy for the citizens of the Australian Capital Territory when compared to Australians living in one of the six States.
The disallowance power is not available to the Commonwealth with respect to the States and, had a State legislature passed an analogous law to that of the ACT in this matter, the mere assertion by the Commonwealth that the law was inconsistent with Commonwealth statute would have been insufficient for voiding the enactment. Pursuant to section 109 of the Australian Constitution, the High Court, not the Federal Executive, would be required to determine that, at law, there was an inconsistency between the State and Commonwealth laws.
This is as it should be with respect to the Australian Capital Territory, a city-state of 340,000 people whose democratic rights should be recognised in the same way as those Australians living in the States.
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