Bills Digest No. 136 2002-03
Australian
Capital Territory
Legislation Amendment Bill 2002
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Australian
Capital Territory Legislation Amendment Bill 2002
Date
Introduced:
28 August 2002
House: House of Representatives
Portfolio: Transport and
Regional Services
Commencement: On Royal Assent
Note:
The Bill was passed by Parliament on 6 February 2003
and received Royal Assent on 24
February 2003 (Act No. 1 of 2003).
This Bill amends the Australian
Capital Territory (Self-Government) Act
1988 (the Self-Government Act), and the Australian
Capital Territory (Planning and Land Management)
Act 1988 (the PALM Act), for mostly minor technical purposes, such
as deleting redundant transitional provisions.
This Bill is the result of the need for Commonwealth
legislation to reflect the evolving nature of self-government in the Australian
Capital Territory (ACT). This need is reflected in three areas:
• the existence of references in Commonwealth
laws to transitional administrative arrangements that are no longer in
existence
• the divergence of Commonwealth and ACT laws
in relation to ACT elections, which emerged as the ACT developed its own
views and laws on how ACT elections would best be run, and
• the desirability of fine tuning clauses in
which problems were found to exist as the Commonwealth's laws relating
to ACT self-government were first drafted.
The Commonwealth's Self-Government Act contains a range
of transitional provisions that are no longer relevant. It refers, for
example, to the positions of 'Head of Administration' and 'Associate Head
of Administration', which ceased to exist in 1994. It also provides for
the qualification of candidates in ACT elections, the filling of casual
vacancies, and the regulation of election funding, until the ACT Assembly
legislates on these matters. The ACT did so in its Electoral Amendment
Act 1994.
In its report on the 1995 ACT Assembly election, the
ACT Electoral Commission suggested that the month in which elections were
held might be moved from February to October.(1) A Bill to
implement this change was introduced in the ACT Assembly in 1996 by one
of the independents, Michael Moore.(2)
The Bill originally contained two provisions, one to move the date of
elections, and another to introduce four-year terms. The latter proposal
was not, however, derived from the Electoral Commissioner's report.
There was considerable debate about the Bill, primarily
in relation to the four-year term provision. This debate appeared to be
at least in part because the minority liberal government could not decide
whether to support the proposals. The Bill was eventually passed containing
just the provision moving the date at which elections are normally held
to October.(3)
One effect of the change in the ACT electoral laws is
that it may make them inconsistent with the Self-Government Act. Section
28 of that Act provides that an ACT enactment is of no effect to the extent
that it is inconsistent with a law in force in the Territory, which would
include the Self-Government Act. The move to an October election date
may result in such an inconsistency in relation to the timing of an election
in the event that the Assembly is dissolved by the Commonwealth's Minister
for Territories following an Assembly motion of no confidence in the ACT
Chief Minister (what is termed an extraordinary election). This provision,
currently in section 48 of the Self-Government Act, is intended to prevent
two general elections being held within six months of each other if the
Commonwealth Minister has to call an election under section 48 within
six months of the normal general election date. The subsection which prevents
this reads:
(4) An election shall not be held under subsection (2) if
the election would be required to be held on any day after the third Saturday
in August in a pre-election year and before the third Saturday in February
in the next calendar year.
Unfortunately, as can be seen, this is achieved by having
subsection 48(4) refer to particular months by name, which leads to the
potential inconsistency with the Self-Government Act.
In his second reading speech, the Minister remarked that
the provisions contained in subsection 48(4) of the self-government
act are not only outdated but also redundant because of more recent ACT
legislation. The subsection is therefore repealed.(4)
In fact, repeal is necessary because the federal law
would not be redundant in a legal sense. If it is left unchanged,
it could cause the ACT to be without an effective government for over
a year, should subsection 48(4) ever be invoked. This is because Commonwealth
law prevails over Territory law. Currently, Territory law attempts to
achieve the effect of the Commonwealth's subsection 48(4) through subsection
100(3) of the ACT Electoral Act. This reads:
(3) Where an extraordinary general election(5)
has been held in the 6 months before the day on which an election in accordance
with subsection (1) or (2) would, but for this subsection, have been held-
(a) the election shall not be held; and
(b) this section applies in relation to subsequent ordinary
elections as if the election had been held.
This, however, will conflict with the effect of the Commonwealth's
subsection 48(4). To clarify this, consider the scenario that would develop
under each jurisdiction's law, if a Chief Minister were to be subject
to a motion of no confidence (and a replacement not agreed upon) in July,
fifteen months before a scheduled ordinary general election in October
of the following year.
The Territory regime envisages that, if the Commonwealth
Minister has to call an extraordinary election under section 48 in this
scenario, that election will take place between 66 and 120 days after
the Assembly passed the motion of no confidence in the Chief Minister.
Because such an election would be late in the life of the Assembly, the
intention of subsection 100(3) of the Territory's electoral law is to
allow that extraordinary election to stand in place of the next scheduled
ordinary election, so the next general election would take place around
three and a half years later. Thus the scenario mentioned above, if the
Territory's law were to operate unimpeded, would be effective and operate
as intended.
The Territory's law, however, is not free to operate
unimpeded. The Commonwealth regime envisages that, whereas the Commonwealth
Minister would normally call an extraordinary election under section 48,
in this scenario the Minister would not do so, because to call such an
election would violate subsection 48(4) of the Self-Government Act. This
had been drafted when ordinary elections were held in February. Now that
they have been moved back to October, however, in the scenario above the
Territory would potentially be governed for over a year by an Assembly
that could not agree upon a Chief Minister.
This problem could potentially be by-passed, by virtue
of section 16 of the Self-Government Act, which states:
(1) If, in the opinion of the Governor-General, the Assembly:
(a) is incapable of effectively performing its functions;
or
(b) is conducting its affairs in a grossly improper manner;
the Governor-General may dissolve the Assembly.
The Governor-General would be acting upon the advice
of Federal Executive Council. This section could be used to avoid the
ACT being paralysed by an Assembly that could not select a Chief Minister.
Politically, however, this might be regarded as less than ideal, because
the exercise of this power would highlight how the fate of the Assembly
lies ultimately with Federal Cabinet, rather than with ACT self-governing
institutions.
Far from being merely redundant, therefore, subsection
48(4) of the Self-Government Act needs to be repealed precisely because
it could still have effect. It needs to be repealed so that the ACT Electoral
Act can operate unimpeded with regard to the implementation of extraordinary
elections.
The PALM Act establishes rules for the operation of the
National Capital Authority (NCA). It requires the full-time member of
the NCA to be present for a meeting to have a quorum, however the PALM
Act also requires that any person with a pecuniary interest in a matter
being considered by the NCA absent themselves from deliberations on the
matter. Taken together, these provisions have the potential to prevent
the NCA dealing with any matter in which the full-time member of the NCA
has a pecuniary interest. This Bill addresses this issue, as well as some
other drafting problems.
Schedule 1 item 1 removes a defunct reference
in section 16(9) of the Self-Government Act, that currently prevents the
Head of Administration (a position that no longer exists) from administering
the executive in the event of the dissolution of the Assembly by the Governor-General.
It replaces it with a provision indicating that the Chief Executive, or
equivalent, of the Chief Minister's Department, cannot undertake that
role.
Schedule 1 item 2 clarifies the language of the
provisions of the Self-Government Act that outline the circumstances under
which the Chief Minister and other Ministers vacate office. The current
provision is difficult to read because it attempts to cover both Ministers
and the Chief Minister.
Schedule 1 items 3 and 4 repeal provisions of
the Self-Government Act relating to elections held pursuant to the calling
of an election by the Commonwealth Minister if the ACT Assembly has passed
a motion of no-confidence in the Chief Minister, but has been unable to
choose a new Chief Minister. These provisions are potentially inconsistent
with the ACT's electoral laws since they were changed in 1997.
Schedule 2 item 2 modifies the quorum rules for
the NCA in the PALM Act to ensure that a quorum can be formed in the event
that the full-time member of the NCA cannot be present because they have
a pecuniary interest in any item under consideration by the meeting.
This Bill in broad terms
recognises the progressive devolution of law making in some areas from
the Commonwealth to the ACT. This Bill would
also seem desirable to avoid a number of potential difficulties from emerging
from the Commonwealth's legislation for the ACT. The remaining question,
raised during debate on the Bill, is whether
there are other areas in which devolution of authority should be taking
place, such as removing the provision of the Self-Government Act that
prevents the ACT from determining the size of its own Legislative Assembly
(section 8(3)).(6)
- Mr Moore, Legislative Assembly Debates, 4 September
1996, p. 3006; Mr Whitecross, Legislative Assembly Debates, 4
December 1996, p. 4412.
- Mr Moore, Legislative
Assembly Debates, 4 September 1996, p. 3006.
- Legislative Assembly Debates, 27 August 1997, p. 2509.
- Mr Tuckey, House
of Representatives Debates, 28 August 2002, p. 5910.
- 'Extraordinary election' is defined in section 101
of the ACT's Electoral Act, and includes an election required under
section 48 of the Self-Government Act.
- Senator Stott-Despoja,
Senate Debates, 6 February
2003, p. 8729.
Ian Holland
10 April 2003
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
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