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More than just a flag

By George Williams - posted Friday, 11 April 2008

Canberrans are well educated, employed at record levels and in receipt of the highest average incomes in Australia, but we are not trusted to govern ourselves. When the ACT was granted self-government in 1988, the Commonwealth imposed major conditions. This left Canberra's system of government with several features more akin to a 19th century colonial possession than a modern Australian territory.

These problems have never been fixed and can still be found in the Australian Capital Territory (Self-Government) Act 1988. On the one hand, that law establishes the Legislative Assembly as a properly elected democratic parliament for the ACT. On the other, it permits a federal government veto over all ACT laws and power to unilaterally dissolve the Assembly. The law has also been used to pre-emptively deny the ACT's law-making authority. In other areas the Act stops the Assembly from properly running its electoral system.

The Act, for example, fixes the size of the Assembly at 17 members and requires Commonwealth action to make any change. This is at odds with the normal scope given to parliaments to determine their own size, a power held by federal and state parliaments, and even the Commonwealth-created Northern Territory Legislative Assembly.


The powers held by the Commonwealth over ACT affairs are far from hypothetical. They have been used, and their further use threatened, a number of times. This has created a precedent for ongoing intervention by the Commonwealth.

An early example was the 1997 Euthanasia Laws Act of the Federal Parliament. Championed by then Coalition backbencher Kevin Andrews, the Act was conceived as a way to override the legalisation of voluntary euthanasia in the Northern Territory. However, the federal law went further than this and also removed the power of the Northern Territory, the ACT and Norfolk Island to make laws on euthanasia generally. It overrode any existing laws on the topic, and also took away the power to pass laws in the future.

Last month the Senate Standing Committee on Legal and Constitutional Affairs began an inquiry into whether the Euthanasia Laws Act should be repealed. It certainly should be. As a matter of democratic principle and good governance, the Commonwealth should not remove power from a self-governing jurisdiction to make laws on a topic.

Removing power is a blunt instrument that prevents the making of any laws, for good or ill, including those that are clearly in the best interests of the Canberra community. It also sends a clear signal that the Commonwealth believes the ACT is not up the task of enacting appropriate laws on the subject.

This does not deny the proper role of the Commonwealth to govern for all Australians. Where issues arise in a territory or state there is often a legitimate role for the Federal Parliament to intervene in the national interest, such as in regard to the national economy or environmental issues. The problem arises when it singles out and undermines democratic rights in the territories. Where the Commonwealth overrides state laws, it does so by enacting a general law for Australia, and never by taking away the power of a state parliament. This would not only be seen as an abrogation of states' rights, it would be invalid under the Constitution.

In 2006 the Howard government used its powers to veto the ACT Civil Unions Act. Under the Self-Government Act, the Federal Government can instruct the Governor-General to disallow any law made by the Assembly within six months after it is made. There is a similar power in section 59 of the Constitution that allows the Queen to annul within one year any law passed by Australia's Federal Parliament. Fortunately, British monarchs and their instructing British governments have had the sense never to use the power, and even though it still remains in the Constitution it has long since become obsolete.


The federal power over ACT laws can be used in a partisan or opportunistic way, with no reasons given, nor any consideration paid to the best interests of ACT people. The only fallback for the ACT is that the veto can be overturned by one of the houses of the Federal Parliament. A motion was moved in the Senate to overturn the civil unions veto, but it was defeated despite ACT Senator Gary Humphries crossing the floor.

The Howard government's use of the veto is unlikely to be a one-off. Prime Minister Kevin Rudd said soon after his election that he would not override ACT legislation allowing civil unions because it was a matter for states and territories. However, the latest attempt by the Stanhope Government to introduce civil unions has led to a change of tune, with the Federal Government threatening to strike down any ACT law that provides for a public ceremony.

Among all Australian territories, these problems of governance are especially acute in the ACT. Unlike the Northern Territory, the ACT may never be able to escape the parental overseeing of the Commonwealth. Judges of the High Court have suggested that because the ACT includes the seat of the Federal Government it cannot become a state. It would be possible to become a state by excising the parliamentary zone from the ACT, but if that occurred you would have to ask what reason there would be for the ACT to exist in the first place.

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First published in the Canberra Times on April 5, 2008.

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About the Author

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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