Australia's independence from British political institutions came through statutory means rather than constitutional ones. The two most important being the Statute of Westminster in 1931 (though not enacted by Australia until a decade later) which disentangled Australia from the British Legislative and the Australia Act of 1986 which gave judicial independence. The Northern Territory and Australian Capital Territory are in a similar position of self-governance under the Federal Government's eye. It is interesting to see Bob Brown lodge a private member's bill to give the ACT more statutory freedom.

Britain was pretty smart and didn't really mess with Australian self-governance. So much so that Statute of Westminster was enacted in Australia in 1942 over the issue of a murder in the Australian Navy. Until that point the Australian Government had not seen the necessity in the Act.

The Australian Territories have seen a couple of instances in the last decade where their legislatures have been over-ridden. The Northern Territory with euthanasia and the Australian Capital Territory with a civil union bill.

Bob Brown's speech contains;

I have been in the Senate long enough to have seen both the Northern Territory legislation on euthanasia overridden in 1996--but that was by the passage of a bill through the parliament--and then the consequential override of the ACT legislature's civil union legislation, a very different matter indeed. In the latter case the executive--that is, essentially, the Prime Minister's office--effectively regulated under the terms of the Australian Capital Territory (Self-Government) Act 1988 to override a bill that had passed through the legislature of the Australian Capital Territory into law in the territory. It needs to be stated clearly for the record that the Stanhope government went to the last ACT election with a platform of bringing in the civil union law. The government was duly elected to office by nearly a quarter of a million voters of the Australian Capital Territory.

The Stanhope government was elected on a commitment to introduce legislation. It then introduced that legislation, which passed through the assembly and duly into law. The executive of the federal government, the Howard government, decided--without reference to the national parliament--that it would in turn regulate to override that legislation enacted by the Legislative Assembly of the Australian Capital Territory.

The Act that Brown refers to contains a section on disallowance of enactments. Section 35 gives the Governor-General (presumably the Governor-General in Council, the interpretation section does not define the GG) the power to over-ride laws the Executive defines as repugnant to the Commonwealth;

(2) Subject to this section, the Governor‑General may by written instrument disallow an enactment within 6 months after it is made. ...

(4) The Governor‑General may, within 6 months after an enactment is made, recommend to the Assembly any amendments of the enactment, or of any other enactment, that the Governor‑General considers to be desirable as a result of considering the enactment. ...

(6) Upon publication in the Commonwealth Gazette of notice of the disallowance of an enactment, the disallowance has, subject to subsection (7), the same effect as a repeal of the enactment.

If this is the Governor-General in Council - who, constitutionally, must act on the advice of the Executive Cabinet - then has the power to repeal ACT laws. Since this Act is from 1988, it was probably the Hawke Government which gave the Executive those powers. Proof that the march of centralisation is apolitical and coveted by all major parties.

Bob Brown's private member bill would repeal most of Section 35, leaving;

Disallowance of enactments

(1) In this section: "enactment" includes a part of an enactment.

(4) The Governor‑General may, within 6 months after an enactment is made, recommend to the Assembly any amendments of the enactment, or of any other enactment, that the Governor‑General considers to be desirable as a result of considering the enactment.

(8) For the purposes of this section, an enactment shall be taken to be made when it is notified in the Territory Gazette under this Part.

This means the Governor-General cannot repeal ACT legislation but rather, can only recommend enactments. This enables the ACT statutory authority to make legislation that is repugnant to the Federal Government.

During Bob Brown's speech there was an interjection by Senator Julian McGauran who simply said;

It's unconstitutional.

The section of the Constitution which deals with New States and Territories is Chapter VI ;

122. The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

So is it unconstitutional? The constitution allows for the Federal Parliament to make laws for a territory which means that the Federal Parliament can make legislation which over-rides or repeals legislation from a Territorial Assembly.

So what is the Parliament according to the Constitution? Chapter 1 ;

The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is herein-after called "The Parliament," or "The Parliament of the Commonwealth."

But the Governor-General represents the Queen under uber-crappy separation of powers, so the Governor-General maybe implied as being part of 'Parliament'. I think Bob Brown has a claim to the constitutionality of his private member bill making the Governor-General only recommend amendments and requiring parliament (House and Senate) to over-ride a territory bill as was done with the Northern Territory euthanasia bill.

But I am not certain. Our unclean separation of powers make an explicit reading of the Australian Constitution difficult there to my eyes. In the US system with its cleaner separation of powers there would be no doubt as the Congress (legislative) is distinct from the President's Administration (executive) and Section 35 in the ACT Self-government Act of 1988 would be unconstitutional under Sect 122.

Ultimately though, the Australian Federal Government should take a few hints from how Britain dealt with the Australian colonies and later Federal Government and not meddle. It can become an irritant cause.

cam