Bills Digest No. 86, 2012–13

12 March 2013

Australian Capital Territory (Self-Government) Amendment Bill 2013

Rob Lundie and Cathy Madden
Politics and Public Administration Section

Date introduced: 13 February 2013

House: House of Representatives

Portfolio: Regional Australia, Local Government, Arts and Sport

Commencement: On the day after Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Australian Capital Territory (Self-Government) Amendment Bill 2013 (the Bill) is to amend subsections 8(2) and (3) of the Australian Capital Territory (Self-Government) Act 1988 (the Self-Government Act) to give the Australian Capital Territory Legislative Assembly the power to determine the size of the Assembly without requiring the Commonwealth to pass regulations to make any changes to the size of the Assembly.

The Bill provides that any enactment made by the Assembly for the purpose of determining the size of the Assembly will additionally require the approval of a two-thirds majority of the total number of members of the Assembly to come into effect.

Background

Section 122 of the Australian Constitution confers on the Commonwealth a general power of legislating for a territory. When the ACT was granted self-government in 1988, the Commonwealth imposed major conditions. For example while the law allowed for the establishment of the Legislative Assembly it also provided for the Commonwealth to be able to disallow territory legislation. The Assembly also did not have the power to change its internal structures. If it decided it wanted to change the size of the cabinet or of the Assembly or the term its members served, it would require changes to Commonwealth legislation. However over time, some of the conditions have been removed.

In 1992 an amendment to section 41 of the Self-Government Act provided that the number of Ministers was to be determined by the ACT Assembly, and that until such an Act was passed the maximum number of Ministers would be five.[1]

In 1993 the Commonwealth Government attempted to allow the Assembly to determine its own size. In the Arts, Environment and Territories Legislation Amendment Bill 1993, the then Labor Government introduced the following proposed amendment to the Self-Government Act:

The Bill removes from the Australian Capital Territory (Self-Government) Act 1988 limitations on the powers of the Legislative Assembly and the executive of the Territory that are no longer considered appropriate. For example, the assembly will be given power to decide the number of its members; how frequently it will meet; how laws passed by it will be notified to the public; and the level of remuneration of its members and the Ministers and senior officers of the ACT Government. This brings the ACT’s degree of self-government closer to that of the Northern Territory.[2]

However, the amendment was opposed by the Coalition Opposition.[3] During the debate the Government moved a motion omitting the amendments to subsections 8(2) and 8(3) of the Act; the motion was agreed to.[4]

In 1994 the Legislative Assembly passed the Proportional Representation (Hare-Clark) Entrenchment Act 1994 (the Entrenchment Act). Section 4 entrenches certain principles of the Hare-Clark electoral system and also provides for compulsory voting. It also provides that the Entrenchment Act applies to any law made pursuant to a power at any time vested in the Legislative Assembly to make a law with respect to the number of members of the Assembly. Subsection 4(2) of the Entrenchment Act provides that:

This Act applies to any law made pursuant to a power at any time vested in the Legislative Assembly to make a law with respect to the number of members of the Legislative Assembly.

Section 5 of the Entrenchment Act requires special conditions for making laws in regard to the principal Act and any Act that the Entrenchment Act applies to. The effect of subsection 5(2) is that any law altering the size of the Assembly will need a two-thirds majority of the numbers in the Assembly or a referendum.[5] This provision was introduced in order to ‘put key elements of the electoral system well out of the reach of majority governments’.[6]

Until recently section 35 of the Act permitted the Governor-General to disallow an Act, or to recommend amendments to a piece of legislation, within six months of the Legislative Assembly enacting a Bill. The Governor-General utilised this power in 2006 to disallow the ACT’s Civil Unions Act 2006. However, on 1 November 2011 the Federal Parliament passed amendments to the Self-Government Act which abolished the veto power, and the power of the Governor-General to amend ACT laws, instead requiring a majority in both houses of Federal Parliament to overturn an enactment of the ACT.[7] These changes came into effect on 4 December 2011.

The ACT is still not able to independently determine the size of its legislature. Section 8 of the Act provides that the Assembly shall consist of 17 members, but Commonwealth regulations can fix a different number of members if the Assembly makes a resolution to that effect. There is a similar provision for Norfolk Island, but the Northern Territory is free to determine its own size.[8] In fact the Northern Territory amended section 138 of its Electoral Act in 1982 (the Electoral Act) to increase the number of members in the Legislative Assembly from 19 to 25.[9] The new section 138B of the Electoral Act reads:

For the purposes of the next ensuing general election, and all subsequent elections, of members of the Legislative Assembly after the commencement of the Electoral Amendment Act 1982, the Legislative Assembly shall consist of 25 members.

The issue of the Assembly being permitted to decide its own size has been considered in a number of reviews over the years. Each review has generally supported increasing the size of the Assembly although there has been no agreement on what that size should be. A summary of the findings of the reviews is provided in the Appendix. The most recent review is discussed below.

ACT Standing Committee on Administration and Procedure Report (2012)

Chair of the Committee, Mr Shane Rattenbury, MLA, tabled Report 5—Review of the Australian Capital Territory (Self-Government) Act 1988 (Cth) on 24 August 2012. Recommendation 2 of the Report said:

The Committee recommends, noting the requirements of the Proportional Representation (Hare-Clark) Entrenchment Act 1994 regarding a special majority, that section 8 of the Self-Government Act be amended to give the Legislative Assembly the power to determine the number of its Members, so as to have similar powers as the Federal Parliament and the State and Territory Parliaments.[10]

The Committee noted that the Federal Government evidence, through the Territories Division of the Department of Regional Australia, Local Government, Arts and Sport, to a Senate Legal and Constitutional Affairs Legislation Committee inquiry, had encouraged a review of the Self-Government Act and that it would welcome any advice of the results of that review.[11]

In tabling the Report Shane Rattenbury said:

“The committee considered that after more than 23 years of self-governance the ACT should be able to set the size of its legislature in the same terms as other states and territories in the Australian system of government.” “I think it is also worth noting that the committee recognised that should the power be handed to the Assembly, the requirements of the Proportional Representation (Hare-Clark) Entrenchment Act require a special majority of the Assembly. I think that shapes how the Assembly would need to go about such a discussion. And I think it is also worth noting that the committee received a number of suggestions on how that discussion might take place with the community, through a range of possible forums and community engagement ideas that would ensure that any discussion about increasing the size of the Assembly was one that the community was well engaged in.”[12]

Mr Jeremy Hanson (later to become Liberal Party Leader) said:

“Interestingly, the vast bulk if not all of the submissions and the people who appeared reflected the view that we are a well-operating Assembly. The majority saw the need for us to be given fewer restrictions and more ability to determine things like our own size.” “Based on a discussion of the evidence, I can see no reason why we should not have that power, which is similar to all other parliaments in Australia.”[13]

Greens MLA Ms Amanda Bresnan supported these views when she said:

“As Mr Rattenbury has said, all but one submission supported the Assembly determining its own size. As Mr Hanson said, everyone now recognises the maturity of this Assembly. Judging by all the submissions, it is time the Assembly was given that power. The legislation that has come through here in the last few years—being the first jurisdiction to have a Human Rights Act and the like—shows the level of maturity of this Assembly and that it has been a leader in many areas around these sorts of processes.”[14]

As this Bill is introduced into the Federal Parliament another review is underway. The Expert Reference Group was established on the 10 January 2013 by the Chief Minister, Katy Gallagher and has been asked to consult with the community regarding options for changing the size of the Assembly. The Group has issued a discussion paper providing background on previous reviews and the issues surrounding a decision to increase the size of the Assembly. The key questions to be considered are:

·         is there a sufficient case to increase the size of the ACT Legislative Assembly and

·         if so, what size should the Assembly be?[15]

Position of major interest groups

New ACT Liberal Party Leader, Jeremy Hanson, is reported as having said he would encourage his federal colleagues to pass the Bill but he would not be drawn as to whether he would support a move to increase the number of MLAs.[16]

Most of the submissions to the Standing Committee’s latest review of the Act supported the proposed amendments to the Act. Elections ACT recommended:

It would be appropriate to amend section 8 of the Self-Government Act to give the Assembly the power to set its own number of Members. This would bring the ACT Legislative Assembly into line with the Northern Territory Legislative Assembly.[17]

The Woden Valley Community Council[18] and former MLA Bill Stefaniak[19] expressed similar views as did the ACT Government itself. The Committee outlined the ACT Greens support thus:

the Self-Government Act is in need of reform, and should be updated to reflect the mature democracy that the ACT has become. The underlying aim of the changes should be to achieve equality between residents of Canberra and other Australian cities. Parliament should be able to set its own size and should not have any additional limitations to its legislative powers than those imposed by the Australian constitution and the federal structure.[20]

Overall, the arguments in support of the Bill and for giving the ACT Assembly the power to determine its own size are:

·         the ACT has shown itself capable of operating as a mature democracy for the 23 years since it received self -government and

·         the ACT should not be treated any differently to the other states and territories, especially the Northern Territory, in this respect.

Financial implications

The Bill does not have any financial implications as it is to provide a mechanism for the ACT Legislative Assembly to determine its size. However financial implications will arise if the Assembly does decide to increase the size of the Assembly.

Statement of Compatibility with Human Rights

The Statement of Compatibility with Human Rights can be found at page five of the Explanatory Memorandum to the Bill. As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.

Key issues and provisions

As outlined earlier, a series of reports and reviews since the ACT gained self-government have recommended that the ACT Assembly be given the authority to increase the size of the Assembly.[21]

The Government seems to have taken the opportunity provided by the ACT centenary to recognise a fully functioning ACT Assembly and the role it plays in the region. The Bill does impact on the governance of the ACT, although it does not affect the constitutional right of the Federal Parliament to make laws for the territory as set down in section 122 of the Constitution; it makes possible for the Legislative Assembly to set its own size which is argued by most commentators to be a right of a self-governing territory.

The proposal to increase the size of the Assembly will probably be welcomed by all parties in the ACT. However the outstanding issue will be the possible changes to the configuration of electorates and the possible implications this could have for party representation. Unlike the debate in 1993 the size of electorates is now set down in the Entrenchment Act which requires the special conditions to be met, in effect 70 per cent of the Assembly (12 of the 17 MLAs) to agree to the change.

Item 1 repeals and substitutes subsections 8(2) and (3) of the Self-Government Act to provide that the Assembly is to consist of such numbers of members as determined by an enactment (of the Assembly). Such an enactment must be passed by two-thirds of the numbers of Assembly members, until such time the number of members remains at 17.[22]

Concluding comments

As noted, the ACT Government set up an Expert Reference Group in early 2013 to review the size of the Assembly, which is to report back to the Chief Minister by the 31 March 2013.[23] It remains to be seen if in the ACT’s centenary year the Commonwealth Parliament will provide the mechanism that will enable the Assembly to implement an option stemming from the review.

Appendix: Earlier Reviews

Pettit Review (1998)[24]

The Review of the Governance of the Australian Capital Territory was prepared by a committee chaired by Professor Philip Pettit, at the request of the Minister for Regional Development, Territories and Local Government in 1998. The Review focussed on the operation of the legislature and the executive and the ability of the community to participate in the government and governance of the territory.

Pettit’s committee found that the constitutional system subordinated the ACT to the Commonwealth in a measure that does not fit well with the idea of a self-governing territory. It recommended that the Assembly should have the same powers as state parliaments in respect of normal government processes.

ACT Standing Committee on Legal Affairs (2002)[25]

The Committee recommended:

The Committee commends the action of the Assembly in requesting the Chief Minister undertake discussions with the Commonwealth government in relation to amending the Self-Government Act to devolve to the Assembly the power to determine the number of members. The committee recommends that the Chief Minister also seek an amendment of the Self-Government Act to remove the power of the Commonwealth to fix the number of ministers that make up the ACT executive.

Hawke Review (2010)[26]

Then Chief Minister, Jon Stanhope MLA, commissioned Dr Allan Hawke AC to conduct a comprehensive review into the Australian Capital Territory Public Service. The aim of the review was to ensure the configuration of the ACT public sector remains appropriate for meeting the Government’s needs. The report of the review entitled Governing the City State: One ACT Government—One ACT Public Service discussed matters relevant to the review of the operation of the Self-Government Act and suggested that the Self-Government Act be reformed and that the size of the Assembly and ministry be increased. While noting that it was beyond the scope of his review to determine what the number of Members of the Legislative Assembly should be, Hawke stated that the Assembly should be empowered to determine its own size.

Halligan Report (2011)[27]

Professor John Halligan, Professor of Public Administration, University of Canberra, was appointed by the Speaker to conduct an assessment of the implementation of the three arms of government on the ACT against the Latimer House Principles. The report, entitled An Assessment of the Performance of the Three Branches of Government in the ACT against Latimer House Principles concluded:

... the ACT remains in some respects a stunted system of governance that has been constrained by another level of government and lack of agreement on key strategic issues. The single most significant constraint on good governance in the ACT, apart from scale and resourcing relative to its responsibilities as a state and municipal entity, has been the Australian Capital Territory (Self-Government) Act 1988, which has imposed severe limitations on the autonomy and power of the jurisdiction. The right of a federal government, whether by legislation or Ministerial fiat, to veto territory laws has reduced the status of the ACT to that of a protectorate.[28]

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ISSN 1328-8091

[1].              Australia Capital Territory (Self-Government) Amendment Act 1992, section 5.

[2].              R Ray, ‘Second reading speech: Arts, Environment and Territories Legislation Amendment Bill 1993’, Senate, Debates, 27 May 1993, p. 1422, viewed 8 March 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2F1993-05-27%2F0076%22

[3].              I MacDonald, ‘Second reading speech: Arts, Environment and Territories Legislation Amendment Bill 1993’, Senate, Debates, 1 September 1993, pp. 815–16, viewed 8 March 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2F1993-09-01%2F0159%22

[4].              N Sherry, ‘Second reading speech: Arts, Environment and Territories Legislation Amendment Bill 1993’, Senate, Debates, 28 September 1993, p. 1318.

[5].              Proportional Representation (Hare-Clark) Entrenchment Act 1994 (ACT), viewed 1 March 2013, http://www.legislation.act.gov.au/a/1995-1/default.asp

[6].              G Humphries, ACT Legislative Assembly, Debates, 30 November 1994, p. 4317.

[7].              Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Act 2011, Act no. 166 of 2011.

[8].              Northern Territory (Self-Government) Act 19789 (Cth), section 13(2).

[9].              Electoral Amendment Act 1982 (NT), section 24.

[10].              Standing Committee on Administration and Procedure, Review of the Australian Capital Territory (Self-Government) Act 1988 (Cth), report 5, August 2012, p. iv and pp. 24–7, viewed 4 March 2013, http://www.parliament.act.gov.au/downloads/reports/Report%205%20Review%20of%20Self-Government%20Act%20(Cwlth).pdf

[11].              J Yates, ‘Australian Capital Territory (Self Government) Amendment (Disallowance and Amendment Power of the Commonwealth) Bill 2010’, transcript of evidence, Senate Standing Committee on Legal and Constitutional Affairs, Hansard, 21 March 2011, viewed 27 February 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_inquiries/2010-13/actterrirtory_self_government/index.htm

[12].              Shane Rattenbury, ACT Legislative Assembly, Debates, 24 August 2012, p. 3570.

[13].              J Hanson, ACT Legislative Assembly, Debates, 24 August 2012, p. 3570.

[14].              A Bresnan, ACT Legislative Assembly, Debates, 24 August 2012, p. 3570.

[15].              Review into the size of the ACT Legislative Assembly website, viewed 1 March 2013, http://www.elections.act.gov.au/electoral_boundaries/review_into_the_size_of_the_legislative_assembly#ERG

[16].              L Cox, ‘Hanson has “no view” on increasing the size of Legislative Assembly’, The Canberra Times, 14 February 2013, p. 2, viewed 22 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2F2227292%22

[17].              ACT Electoral Commission, Submission to the Standing Committee on Administration and Procedure, Review of the Australian Capital Territory (Self-Government) Act 1988 (Cth), submission no. 9, report 5, August 2012, p. 25.

[18].              Woden Valley Community Council, Submission to the Standing Committee on Administration and Procedure, Review of the Australian Capital Territory (Self-Government) Act 1988 (Cth), submission no. 13, report 5, August 2012, p. 15.

[19].              B Stefaniak, Submission to the Standing Committee on Administration and Procedure, Review of the Australian Capital Territory (Self-Government) Act 1988 (Cth), submission no. 20, report 5, August 2012, p. 20.

[20].              Standing Committee on Administration and Procedure, Review of the Australian Capital Territory (Self-Government) Act 1988 (Cth), op. cit., p. 18.

[21].              ACT Legislative Assembly, Select Committee on Self-Government, report, 1990; P Pettit (Chair), Review of the governance of the ACT, ACT, Government Printer, Canberra, April 1998; ACT Legislative Assembly, Standing Committee on Legal Affairs, Report on the appropriateness of the size of the Legislative Assembly, report no. 4, June 2002; A Hawke (Chair), Governing the city state: one ACT Government—one ACT Public Service, ACT, 2011.

[22].              Proportional Representation (Hare-Clark) Entrenchment Act 1994, subsection 5(2).

[23].              Review of the size of the ACT legislative Assembly website, op. cit.

[24].              P Pettit (Chair), Review of the governance of the Australian Capital Territory, op. cit.

[25].              ACT Legislative Assembly, Report on the appropriateness of the size of the Legislative Assembly, op. cit.

[26].              A Hawke AC (Chair), Governing the city state: one ACT Government—one ACT Public Service, op. cit., p. 34.

[27].              J Halligan (Chair), An assessment of the performance of the three branches of government in the ACT against Latimer House Principles, Australia and New Zealand School of Government (ANZSOG), Institute for Governance, University of Canberra, 2011.

[28].              Ibid., p. 20–1.