Chapter 1Introduction and key issues

1.1On 19 June 2023, the Australian Capital Territory (Self-Government) Amendment Bill 2023 (the Bill) was introduced in the Senate by Senator the Hon Matthew Canavan.[1]

1.2On 22 June 2023, on the recommendation of the Senate Selection of Bills Committee, the Bill was referred to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 9August2023.[2]

1.3On 8 August 2023, the Senate agreed to an extension of time to report to 6September 2023 and instructed the committee to hold a public hearing.[3]

Conduct of the inquiry

1.4In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to relevant organisations and individuals inviting submissions by 17 July 2023.

1.5The committee received 76 submissions, which are listed at Appendix 1 and are available on the committee's website. The committee also received 273 short statements, which are not published, and the following form letters and campaign submissions:

Form Letter A: 49;

Form Letter B: 47;

Form Letter C: 46;

Form Letter D: 47;

Form Letter E: 41;

Form Letter F: 48;

Form Letter G: 134;

Form Letter H: 151;

Form Letter I: 136;

Form Letter J: 139;

Form Letter K: 144;

Form Letter L: 137;

Form Letter M: 137;

Form Letter N: 155;

Form Letter O: 154;

Form Letter P: 135;

Form Letter Q: 369;

Form Letter R: 203; and

Form Letter S: 4609.

1.6The committee held a public hearing in Canberra on 4 September 2023. A list of witnesses is provided at Appendix 2.

Note on references

1.7In this report, references to Committee Hansard are to the proof transcript. Page numbers may vary between proof and official transcripts.

Purpose of the Bill

1.8The Bill would amend the Australian Capital Territory (Self-Government) Act 1988 to require the Australian Capital Territory (ACT) government to conduct an inquiry into the Health Infrastructure Enabling Act 2023 (ACT) (Enabling Act), and report before 30 June 2024.[4]

1.9The amendment would be repealed at the start of 1 July 2025.[5]

Background

Negotiation between the ACT government and Calvary Health Care

1.10The ACT government and Calvary Health Care ACT Limited (Calvary) explained that they had engaged in several months of negotiations in relation to the redevelopment of Calvary Public Hospital Bruce (Calvary Public Hospital).[6]

1.11In April 2022, Calvary received correspondence from the Minister for Health, Ms Rachel Stephen-Smith MLA, regarding the ACT government's 'intention to build a new public hospital in north Canberra on the Bruce site'.[7]

1.12Between May 2022 and November 2022, Calvary and the ACT government 'met on over 15 occasions to discuss the Territory's intentions…These discussions did not result in a clear agreement'.[8]

1.13Calvary submitted that it had been negotiating in good faith with the ACT government in relation to the redevelopment of the public hospital. It understood that those negotiations 'proceeded on the basis that Calvary would continue to operate the Public Hospital'.[9]

1.14Calvary indicated that the parties continued to exchange 'substantive correspondence on the issue' until November 2022.[10] On 28November 2022, Calvary sent a letter to Minister Stephen-Smith.[11] On 10 January 2023, Calvary received correspondence from the minister acknowledging receipt of that letter.[12] On 8May2023, Calvary 'was notified…of the Territory's intention to compulsorily acquire the Public Hospital including termination of its contract'.[13]

1.15Mrs Kerryn Vine-Camp, the Acting National Chief Executive Officer of Calvary Health Care, informed the committee that prior to 8 May 2023 'Calvary was not given any opportunity to comment on the Bill and the Regulation'.[14]

1.16Calvary suggested that the ACT government's acquisition of Calvary Public Hospital land and assets:

…proceeded in regrettable circumstances marked by a complete lack of consultation, manufactured urgency, disregard for significant health system risks and indifference to employee rights. The action of the Territory is unprecedented and has caused significant distress to employees, placing the reputation of a national, trusted, healthcare provider at risk. The Territory's suspension of usual legislative chamber processes gives rise to broader sovereign risk issues which merit closer consideration.[15]

1.17Mrs Vine-Camp stated:

Calvary believes the Health Infrastructure Enabling Act 2023 is a piece of bespoke legislation the Australian Capital Territory created in a clandestine manner and then unilaterally enacted to compulsorily acquire the land of the former Calvary Public Hospital Bruce and terminate the associated operating agreement, which had 76 years remaining.[16]

1.18The ACT government submitted that it engaged in 'a two-stage public consultation' prior to acquiring Calvary Public Hospital.[17] It also stated that its negotiations with Calvary continued:

…in good faith for many months to find an agreed path forward. However, these negotiations were not successful in delivering an outcome consistent with the needs of the ACT community'.[18]

1.19On 11 May 2023, Minister Stephen-Smith presented the Health Infrastructure Enabling Bill 2023 (ACT) (Enabling Bill) to the ACT Legislative Assembly (the Assembly).[19]

1.20On the same day, the Assembly passed a motion allowing the Enabling Bill 'to be debated by the Assembly prior to any committee inquiry or report, with the exception of the Standing Committee on Justice and Community Safety in its Legislative Scrutiny role'.[20]

1.21On 31 May 2023, the Assembly passed the Enabling Bill.[21]

1.22The Enabling Act has the following purposes:

(a)enable the Territory to acquire the public hospital land for the construction of a public hospital; and

(b)enable the transition of the operation of the public hospital to the Territory, including by terminating the network agreements; and

(c)provide for the safe and orderly transition of the operation of the public hospital to the Territory, including by—

(i)enabling the Territory to acquire the public hospital assets; and

(ii)providing for the transition of employment of public hospital employees to the Territory; and

(iii)providing for the novation and assignment of public hospital contracts to the Territory; and

(d)ensure the continued operation of, and maintenance of service delivery standards at, the public hospital during and after the transition; and

(e)ensure the Territory can, after the transition, effectively manage its obligations and liabilities in relation to the operation of the public hospital, including liabilities arising in relation to the operation of the public hospital before the transition; and

(f)ensure that interests acquired under this Act are acquired on just terms.[22]

1.23The Enabling Act set 3 July 2023 as the acquisition day.[23] On that day, the operations of Calvary Public Hospital transitioned to Canberra Health Services.[24]

1.24The Explanatory Statement that accompanied the Enabling Bill explained that the acquisition of the public hospital land and assets would:

…enable the Territory to build a new hospital on the existing Calvary Public Hospital Bruce site and to transition to a government operated, insourced, healthcare system on the northside of Canberra and to progress the health policy objectives of the ACT Government to continue to deliver accessible, accountable, and sustainable healthcare across the Territory.

The introduction of this Act will create an opportunity to plan and deliver a health system networked under one operator. This will create operational efficiencies and generate a more agile health system.

The decision to progress the Bill supports the most efficient and effective delivery of public health services for Canberrans and the region.[25]

1.25The Explanatory Statement further explained that the ACT health system is expected to 'come under increasing pressure' as the population ages and grows. It noted that 'By 2041, the demand for hospital services on the northside of the ACT is forecast to be more than double the capacity that Calvary Public Hospital can currently deliver'. It suggested that a new northside hospital, which is integrated into the ACT public health system, would 'cater for the growing population and demand on the northside of Canberra and will complement the Territory's investment at the tertiary hospital at Garran'.[26]

1.26Mrs Linda Trompf, President of the Health Care Consumers' Association (HCCA), suggested:

…the Calvary hospital, as it stands currently, is no longer fit for purpose for the ACT and wasn't able to provide the range of services needed for the consumers in that part of the city.[27]

1.27She also suggested:

…we don't have nearly enough hospital beds in the territory. Both the hospitals currently are always working over capacity, which has a significant negative impact on outcomes for consumers and a negative impact on staff, who are always working over capacity.[28]

1.28She further explained that it is not just the infrastructure that is no longer fit for purpose. Mrs Trompf said:

…the range of expertise and services at Calvary weren't able to meet all the needs of the consumers.

…

That's why the need has grown so much and why the need has outgrown the current Calvary hospital. It is the fastest-growing part of Canberra. There was an expensive process to determine the best place to build this new hospital, which is desperately needed, and it was decided that the Calvary site was the best place. There were other sites looked at, but it's on a public transport route, it's close to the University of Canberra Hospital and it's close to mental health facilities, so it's really the best place for the hospital to be.[29]

1.29The Explanatory Statement indicated that the ACT government had negotiated with Calvary in relation to 'its role in the context of a new northside hospital'. The parties failed to reach 'an agreed position' through those negotiations.[30]

1.30According to the Explanatory Statement, the ACT government sought to acquire Calvary Public Hospital:

…to provide the best and most consistent health service to the Canberra community.

Through the northside planning process, analysis has shown that a one-provider model has significant benefits for the delivery of public health services and will lead to a more efficient and effective delivery of public hospital services for the community.[31]

1.31Dr Alan Thomas, Immediate Past President of the HCCA, stated:

Just in terms of the operation between the two hospitals, I do hear that coordination between medical staff across the two hospitals can be difficult, because they are two different organisations, and it can be unduly complicated to do routine transfers or common medical procedures. Having it under one body would make medical procedures much easier.[32]

Key issues

1.32This section of the report outlines the key issues raised in evidence to the committee about the Bill. Those issues relate to the process that the Assembly undertook in its scrutiny of the Enabling Bill and the implications that the passage of the Bill could have for territory self-government.

1.33This section of the report also articulates the committee's views and recommendation in relation to the Bill.

ACT Legislative Assembly scrutiny mechanisms

1.34In supporting an inquiry into the ACT government's acquisition of Calvary Public Hospital, some submitters indicated that there was inadequate scrutiny and deliberation of the Enabling Bill before it was passed.[33]

1.35Canberra Declaration pointed out that the Enabling Bill was not considered by a committee before it was passed:

Significantly, this was outlawed by "a motion – which passed – suspending the requirement for any committee inquiry into the bill to table a report before the proposal is debated." It is quite something to deliberately avoid a committee inquiry and to shrewdly prevent it.[34]

1.36The Australian Catholic Bishops Conference similarly suggested that by suspending Standing Orders, the Assembly had missed an opportunity to scrutinise the Enabling Bill:

The requirements of ACT Standing Orders 174 and 175 were suspended. These standing orders mandate that bills be referred to the relevant standing committee and that a "bill cannot be dealt with by the Assembly until the committee has reported". The amendment meant the bill could be debated and passed before the relevant committee could issue a report, missing an opportunity for scrutiny of the Government's plans.[35]

1.37Many submitters suggested that in passing the Enabling Bill the ACT government may have been motivated by ideological differences with Calvary. Those submitters argued that an inquiry could assist in ascertaining whether those ideological differences had a role in the ACT government's actions.[36]

1.38The Catholic Archdiocese of Canberra and Goulburn stated that it has:

…taken the Government and individual Ministers at their word – this is not predicated on religious beliefs or specific positions on, especially, beginning and end of life issues. That being noted, it does also need to be observed that religion and religious belief are not entirely removed from these actions.[37]

1.39Dr Patrick McArdle, Chancellor of the Archdiocese of Canberra and Goulburn, reiterated:

The ACT Government publicly and the ACT Chief Minister and ACT Health Minister privately assured the Archdiocese that religion played no part in this decision. We accepted that assertion at face-value. However, we do need to reflect on the fact that there is an increasing disdain and even antipathy toward people of faith as such in civic operations in Canberra.[38]

1.40Minister Stephen-Smith rejected the suggestion that the acquisition of Calvary Public Hospital was ideologically motivated:

If we were in this same circumstance with a public hospital that had been entirely paid for and was entirely funded by the ACT government and that was owned and run by Ramsay Health Care, Healthscope or any other non-government provider, and if that provider then could not reach agreement with us, through lengthy negotiation, to transition the land to ACT government ownership so that we could own the new billion-dollar facility that we're going to build and enter into a modern services agreement so we could have a more efficient and effective health system—in that same circumstance with any provider, the only responsible decision that the government could make would be that we needed to acquire that land to build that hospital and to deliver a more efficient and effective system.

Again, we acquired the land we need for the public hospital. We did not acquire the private hospital land. The bows that have been drawn around the acquisition of private schools, private hospitals and private health facilities are completely contradicted by the fact that we changed the Crown lease; we did not acquire the whole Crown lease. In fact, the private hospital proportion that was drawn on the map previously has been expanded on Calvary's new Crown lease.[39]

1.41The Australian Christian Lobby (ACL) argued that an inquiry would provide an opportunity for the public to express its concerns. It noted that such 'an inquiry would not impact the Government's rights to make decisions, but would merely ensure public consultation on the decision made'.[40]

1.42The Democratic Labour Party of South Australia similarly suggested that as the Enabling Bill 'was rushed through Parliament within two sitting days…[it risked setting] an undemocratic precedent that must not be repeated elsewhere. For this reason alone, an Inquiry is justified'.[41]

1.43The Catholic Archdiocese of Canberra and Goulburn indicated that an inquiry into the acquisition of Calvary:

…would be very appropriate in light of the fact that the Territory Government and the Territory Assembly has demonstrated a willingness to avoid scrutiny. This sense is heightened through the extraordinary haste demonstrated in this acquisition by Government.

…

In conclusion, this proposed amendment does not alter the ACT Legislation; it does not invalidate the acquisition; however, it would require that the ACT Government be held to account to some extent and would enable a degree of scrutiny that has, hitherto, been denied.[42]

1.44Similarly, ACL argued:

…it is critical that an inquiry be conducted to examine the true policy objectives underlying the decision to acquire Calvary Hospital, consider the broader implications of the acquisition, and ensure that the public is given a proper opportunity to express their concerns.[43]

1.45Mr Ross Hawkins, Regional Chief Executive Officer ACT, Calvary Health Care, stated:

We think an inquiry is useful to try and understand some of the sentiments that sit behind it. We're still keen to try and understand how you go from being a valued partner to not being one. There was various commentary around system efficiencies. The data and evidence has never been made available, and it was never raised with us. So I think there's a need for us to be able to see some of the thinking and consideration. This is a $100 million arrangement. The contract with Calvary is worth nearly $300 million a year. If you're going to spend a billion dollars on a hospital, this is significant public money that we're dealing with, and we've not seen the underpinning analysis that sets out the case that the ACT government has made. We think that, as part of that, it would be useful to understand that process because that simply has not been made available to us.[44]

1.46In voicing its opposition to the Bill, the Australian Salaried Medical Officers Federation (ASMOF) explained that it did not support an inquiry into the ACT government's acquisition of Calvary Public Hospital for the following reasons:

(a)There are no material benefits to medical officers in the ACT. In fact, the Bill will place additional strain on an already fractured workforce, consuming significant resources, with no clear evidence as to the benefit for the community or workers.

(b)Decisions regarding the management and resourcing of public hospitals should be made in consultation with ACT stakeholders, including ASMOF ACT. This should be done by the ACT Government.

(c)This Bill will increase uncertainty surrounding the transition to the North Canberra Hospital, leaving workers in the dark, causing ongoing confusion.

(d)This Bill will further undermine public confidence in the ACT Government and Canberra's public hospitals.

(e)This Bill will exacerbate existing issues with the recruitment and retention of medical officers in the ACT.[45]

1.47ASMOF further submitted that 'the resources an "Inquiry" would require can be better allocated towards improving the working conditions and culture within Canberra's public hospitals'.[46]

1.48The ACT government explained that prior to introducing the Enabling Bill it engaged in a two-stage public consultation regarding a new northside hospital in 2022. Through that consultation process:

…a range of feedback was received regarding health services across Canberra, particularly in relation to health services on the northside of Canberra. Information about the consultation (both the processes undertaken and the nature of feedback received) is available on the ACT Government's "Your Say" website here:

https://yoursayconversations.act.gov.au/accessing-health-care.[47]

1.49The ACT government further explained that there are multiple scrutiny mechanisms available to the Assembly to scrutinise executive decisions and to examine legislation. In its view, those scrutiny mechanisms are 'the appropriate ones for providing accountability for ACT Government actions and proposed legislation'.[48] The ACT government further explained that the Enabling Bill was exposed to proper Assembly scrutiny mechanisms and that those 'mechanisms operated as intended'.[49]

1.50The Northern Territory government similarly expressed the view that the ACT 'already has a range of appropriate legislative scrutiny mechanisms in place'.[50] It further suggested that it would be 'unreasonable and burdensome' to require the ACT government to conduct an inquiry into the passage of the Enabling Bill.[51]

1.51In explaining the scrutiny mechanisms available to the Assembly, the ACT government outlined the powers available to standing committees to inquire into legislation:

Under the Legislative Assembly Standing Orders, all bills are referred to a standing committee for consideration. In addition, subject to any direction of the Legislative Assembly, any standing committee may inquire into and report on any matter it considers merits investigation or which the Legislative Assembly refers to it. The committees of the Legislative Assembly are therefore always able to consider bills, and can choose to consider legislation that has passed, where that is within the area of responsibility of the committee.[52]

1.52The ACT government pointed out that at a private meeting on 11 May 2023, the Assembly's Standing Committee on Health and Community Wellbeing determined not to conduct an inquiry into the Enabling Bill.[53] That committee instead decided that it would hold 'a series of briefings in order to monitor the transition process'.[54]

1.53The ACT government submitted that the Chair of that committee, Mr Johnathan Davis MLA, advised the Assembly:

Following the presentation of the bill, the Assembly debated and passed a motion allowing for the bill to be debated by the Assembly prior to any committee inquiry or report, with the exception of the Standing Committee on Justice and Community Safety in its legislative scrutiny role. The committee acknowledges this decision of the Assembly in passing the motion.

To enable the committee to still perform its role of scrutinising government policy, the committee has written to the Chief Minister, the Minister for Health and the Minister for Mental Health requesting briefings. The committee will be asking for fortnightly briefings with ministers and Canberra Health Services officials during their regular private meetings, and the committee looks forward to receiving these briefings.[55]

1.54Those private briefings occurred on 23 May 2023 and 20 June 2023 and were attended by the Minister for Health and other officials. The ACT government 'understands the Committee intends to publish a summary of these meetings in due course'.[56]

1.55The ACT government noted that the Executive would have engaged in a formal inquiry, if the Standing Committee on Health and Community Wellbeing progressed one.[57]

1.56The ACT government reported that the Enabling Bill was referred to the Assembly's Standing Committee on Public Accounts. On 31 May 2023, the Chair of that committee, Ms Elizabeth Kikkert MLA, advised the Assembly 'that the Committee had also resolved not to undertake an inquiry into the Enabling Bill'.[58]

1.57The ACT government noted that had the Standing Committee on Public Accounts decided to undertake an inquiry into the Enabling Bill, it would not have been prevented from doing so.[59]

1.58The ACT government further outlined the legislative scrutiny role of the Assembly's Standing Committee on Justice and Community Safety. 'In this role, the committee scrutinises bills and subordinate legislation for best practice in law-writing and human rights compliance'.[60]

1.59The Enabling Bill was referred to the Standing Committee on Justice and Community Safety under its legislative scrutiny role. In its 23 May 2023 report, the committee provided comments on the Enabling Bill and sought clarifying responses from the Minister for Health.[61] Those responses 'were provided prior to the Enabling Bill being debated. Minister Stephen-Smith also moved an amendment in response to one of the matters raised by the Committee'.[62]

1.60Minister Stephen-Smith advised:

The bill was debated in the assembly, and there was opportunity to put amendments to the bill. The government itself made a number of amendments to the bill in that debate and the consideration in detail stage. As I've indicated, the legislative assembly committees continue to be free to inquire into the process of transition, the outcome of transition or what the challenges and benefits have been from the transition. But I think most people in Canberra not only support this decision but have seen how smoothly it has gone and seen that health care has continued to be delivered at North Canberra Hospital by the same staff working in the same teams with the same management and the same structure, delivering excellent care to the people of Canberra.[63]

1.61The ACT government concluded that the Bill:

…disregards the established self-government mechanisms on [sic] the Australian Capital Territory and seeks to create an inquiry that the majority of elected members of the ACT Legislative Assembly have so far concluded that they do not want and did not seek to create. The Self-Government Amendment Bill ignores existing mechanisms for deliberation, accountability, transparency and debate that have operated as intended. It instead attempts to interfere in the ACT's self-government and to impose a poorly defined requirement that undermines the Assembly's decisions on when and how to consider, scrutinise and pass legislation and is, on its terms, inconsistent with the principles of responsible government.[64]

Territory self-government

1.62Some submitters expressed concerns about the potential implications for self‑government that could arise from the passage of the Bill.[65]

1.63The HCCA, for example, noted that it believes that the Bill:

…impinges on the Australian Capital Territory's Rights as established in the Australian Capital Territory (Self-Government) Act 1988 and the Restoring Territory Rights Act 2022. The Bill risks setting a precedent that may negatively impact the ACT's right to self-govern and to act to meeting needs and priorities of its constituents without interference.[66]

1.64It raised further concerns that, in its view, the 'Bill is intended not to probe the appropriateness of the decision-making process around the acquisition, but rather as a challenge to Territory rights more generally'.[67]

1.65The HCCA argued that it is for the elected government of the ACT to determine where to locate a public hospital:

From our perspective, the ACT has earned self-government, the right to self-govern. That was reaffirmed in 2022 at the Commonwealth level. Now we're looking at it again: when the ACT government makes decisions, if somebody in the Commonwealth doesn't like it then they can try and intervene. For us, that's an issue as well.[68]

1.66In contrast, the Archdiocese of Canberra and Goulburn opined that 'Self-government in the ACT is not a right, it is a determination of this Parliament [the Parliament of Australia]'.[69]

1.67In the case of Calvary Public Hospital, the Archdiocese stated:

…the original land grant and the partnership in public health was also originally a Commonwealth determination. The Archdiocese believes that the situation is unique and, hence, warrants the interests of the Commonwealth and of this Parliament. We reiterate that all this Amendment seeks is to require of the ACT that it subject itself to the kind of scrutiny that its own usual processes would have required.[70]

1.68The ACT government indicated that the Bill:

…is an inappropriate and unnecessary attempt to intervene in the Australian Capital Territory's (ACT) self-government. Its drafting is inconsistent with the Self Government Act and is inappropriate because it does not take account of ACT Legislative Assembly processes that led to the Enabling Act being passed.[71] It is unnecessary because it ignores all the accountability mechanisms present in the ACT's system of government: systems that operated as intended in the case of the Enabling Act. The Self‑Government Amendment Bill is also inconsistent with the principles of responsible government.[72]

1.69The ACT government further stated:

The Enabling Act represents the considered and expressed will of the Territory's elected legislature. It would be inappropriate for the "Government of the Territory" (presumably the Executive) to be compelled to conduct an "inquiry" (a term undefined in the legislation) into the actions of the Legislative Assembly and its committees in enacting the Enabling Act. This is inconsistent with the separation of executive and legislative power and the principles of responsible government.[73]

1.70The ACT government indicated that passing the Bill would have 'future implications for self-government'.[74] It explained that the approach the Bill takes:

…would undermine the Legislative Assembly's ability to make further laws without interference. It is not consistent with the Legislative Assembly's ability to legislate on its own terms, in its own words, and on behalf of its own people. The Federal Parliament does not interfere in these terms with government in states, such as Queensland or New South Wales, and it should not do so in the ACT. It goes against the principles of the legislation recently passed by the Commonwealth Parliament, the Restoring Territory Rights Act 2022, that removed restrictions placed on both the ACT and the Northern Territory to enact laws relating to voluntary assisted dying. It sets a dangerous precedent in that it seeks to again interfere in the Legislative Assembly of the ACT's democratic right to make laws appropriate for its community. This is particularly egregious when it comes so soon after Territory rights were restored.[75]

1.71The Northern Territory government also expressed its 'concern at the principle of the Bill interfering with the legislative processes of the Australian Capital Territory'.[76] It argued that the 'proposal undermines the fundamental purpose of self-government legislation'.[77] It suggested that the:

Passage of this Bill would set a precedent that it is acceptable for the Commonwealth Parliament to place restrictions on the passage of territory legislation on the basis of a policy disagreement. It significantly erodes the rights of territory citizens in comparison to state citizens.

Furthermore, the approach of the Bill is contradictory to the principles of the Commonwealth's Restoring Territory Rights Act 2022, which removed restrictions preventing the Australian Capital Territory and Northern Territory from passing legislation that would allow voluntary assisted dying.[78]

1.72Mr Peter Garrisson, the ACT Solicitor-General stated:

Basically, the ACT was established under a Commonwealth law, the self-government act, which was implemented through section 122 of the Constitution. In the self-government act, the Legislative Assembly is created as a standalone legislature exercising its own legislative power. It does not exercise the Commonwealth's delegated legislative power at all. It has the same powers as a state. The self-government act contains some restrictions on the exercise of that power, just as state constitutions do and indeed as the Commonwealth Constitution does in relation to this place.

The ACT has evolved, as indeed has the Northern Territory, over decades. They have undertaken a range of activities, developed institutions and processes in accordance with all the proper principles of responsible government, and it is a responsible government. The key issue is it should be allowed to exercise those powers as a plenary legislative body, admitting, of course, that this has legislative power in relation to the territory and can pass laws that affect the territory. But the extent that it seeks to interfere in the routine performance of territory functions is something that is not consistent with the principles of representative and responsible government.

…

I think it would be unprecedented for one legislature to seek to direct the executive of another government to undertake an executive action. It would mean—subject, of course, to the Commonwealth's constitutional power—that it could do the same thing in relation to a state government. That is effectively: 'We don't like what you've done. We're going to pass an act and tell you to look at it again,' which really flies in the face of basic principles of our system of government. One jurisdiction should not be in a position to dictate what another self-governing jurisdiction does in such a fashion.[79]

1.73The ACT government submitted that the Bill 'attempts to interfere in the ACT's self-government…and is, on its terms, inconsistent with the principles of responsible government'.

1.74It concluded that the Bill:

…disregards the established self‑government mechanisms on the Australian Capital Territory and seeks to create an inquiry that the majority of elected members of the ACT Legislative Assembly have so far concluded that they do not want and did not seek to create.[80]

Committee view

1.75The Australian Capital Territory (Self-Government) Amendment Bill 2023 would require the Government of the Australian Capital Territory to conduct an inquiry into the Health Infrastructure Enabling Act 2023 (ACT), and report before 30 June 2024.

1.76It is not for the committee to determine whether the Australian Capital Territory Legislative Assembly has sufficiently scrutinised the Health Infrastructure Enabling Act 2023 (ACT) other than to note that such scrutiny was conducted in accordance with the ACT Legislative Assembly's own legislative procedures and oversight mechanisms. Whether those procedures and mechanisms are adequate is ultimately a matter for the electors of the ACT to judge.

1.77The committee recognises that the passage of the Health Infrastructure Enabling Act 2023 (ACT) represents the expressed will of the Australian Capital Territory's elected legislature. Amending the Australian Capital Territory (Self-Government) Act 1988 to require the Government of the Australian Capital Territory to conduct an inquiry would undermine the independence of that legislature.

1.78The committee concludes that the passage of the Australian Capital Territory (Self-Government) Amendment Bill 2023 would constitute unwelcome interference on the part of the Commonwealth Parliament in the proper functioning of the Australian Capital Territory Legislative Assembly. Such interference would be contradictory to the principles of the Australian Capital Territory Self-Government Act 1988 and the Restoring Territory Rights Act 2022.

1.79The committee recommends that the Senate does not pass the Bill.

Senator Nita Green

Chair

Labor Senator for Queensland

Footnotes

[1]Journals of the Senate, No. 53—19 June 2023, p. 1519.

[2]Journals of the Senate, No. 56—22 June 2023, pp. 1595–1598.

[3]Journals of the Senate, No. 62—8 August 2023, pp. 1792–1794.

[4]Proposed subsection 75(1), Australian Capital Territory (Self-Government) Amendment Bill 2023.

[5]Proposed subsection 75(2), Australian Capital Territory (Self-Government) Amendment Bill 2023.

[6]ACT Government, Submission 21, p. 2; Calvary Health Care ACT Limited (Calvary), Submission 66, p. 1.

[7]Calvary, Submission 66, p. 3.

[8]Calvary, Submission 66, pp. 3–4.

[9]Calvary, Submission 66, p. 1.

[10]Calvary, Submission 66, p. 1.

[11]Calvary, Submission 66, p. 4.

[12]Calvary, Submission 66, p. 4.

[13]Calvary, Submission 66, p. 1.

[14]Mrs Kerryn Vine-Camp, Acting National Chief Executive Officer, Calvary Health Care, Committee Hansard, 4 September 2023, p. 8.

[15]Calvary, Submission 66, p. 1.

[16]Mrs Kerryn Vine-Camp, Acting National Chief Executive Officer, Calvary Health Care, Committee Hansard, 4 September 2023, p. 8.

[17]ACT Government, Submission 21, p. 1.

[18]ACT Government, Submission 21, p. 1.

[19]ACT Standing Committee on Health and Community Wellbeing, 'Health Infrastructure Enabling Bill 2023', Media Release, 11 May 2023.

[20]ACT Health and Community Wellbeing Committee, 'Health Infrastructure Enabling Bill 2023', Media Release, 11 May 2023.

[21]ACTLegislationRegister,'HealthInfrastructureEnablingBill2023' https://www.legislation.act.gov.au/b/db_67631/(accessed 27 June 2023).

[22]Health Infrastructure Enabling Act 2023 (ACT) (Enabling Act), s. 5.

[23]Enabling Act, para. 7(1)(a).

[24]Rachel Stephen-Smith MLA, ACT Minister for Health, 'Services transition at North Canberra Hospital and Clare Holland House', Media Release, 3 July 2023.

[25]Explanatory statement to the Health Infrastructure Enabling Bill 2023 (ACT), p. 3.

[26]Explanatory statement to the Health Infrastructure Enabling Bill 2023 (ACT), p. 3.

[27]Mrs Linda Trompf, President, Health Care Consumers' Association (HCCA), Committee Hansard, 4 September 2023, p. 16.

[28]Mrs Linda Trompf, President, HCCA, Committee Hansard, 4 September 2023, p. 18.

[29]Mrs Linda Trompf, President, HCCA, Committee Hansard, 4 September 2023, p. 16.

[30]Explanatory statement to the Health Infrastructure Enabling Bill 2023 (ACT), p. 4.

[31]Explanatory statement to the Health Infrastructure Enabling Bill 2023 (ACT), pp. 4–5.

[32]Dr Alan Thomas, Immediate Past President, HCCA, Committee Hansard, 4 September 2023, p. 21.

[33]See for example: Democratic Labour Party of South Australia, Submission 3, p. 1; Australian Christian Lobby (ACL), Submission 11, pp. 7–8; Australian Catholic Bishops Conference, Submission 14, pp.2–4; Catholic Women's League of Victoria and Wagga Wagga, Submission 17, p. 6; Democratic Labour Party (ACT), Submission 18, p. 4; Family First, Submission 20, pp. 1–2;Australian Christian Higher Education Alliance, Submission 31, pp. 2–3; Canberra Declaration, Submission 38, p. 5–8.

[34]Canberra Declaration, Submission 38, p. 7.

[35]Australian Catholic Bishops Conference, Submission 14, pp. 3–4.

[36]See for example: Democratic Labour Party of South Australia, Submission 3, p. 1; Ms Julia Papasidero, Submission 6, pp. 2–3; Mr Russell Hill, Submission 7, p. 1; Name Withheld, Submission 9, p. 1; Mr Peter Abetz, Submission 10, pp. 1–2; Australian Christian Lobby, Submission 11, p. 3; Australian Catholic Bishops Conference, Submission 14, pp. 4–5; Ms Helen Blanch, Submission 16, p. 1; Catholic Women's League of Victoria and Wagga Wagga, Submission 17, p. 6; Family First, Submission 20, p. 2; Mr James Beckwith, Submission 23, p. 1; Mrs Margaret Fox, Submission 33, p. 1; Freedom for Faith, Submission 36, pp. 3–4; Canberra Declaration, Submission 38, pp. 9–17; Catholic Action, Submission 39, p. 1; Mr David Miller, Submission 50, pp. 1–2; Ms Margaret Chambers, Submission 54, p. 2; Name Withheld, Submission 59, p. 1.

[37]The Catholic Archdiocese of Canberra and Goulburn, Submission 4, p. 3.

[38]Dr Patrick McArdle, Chancellor, Archdiocese of Canberra and Goulburn, Committee Hansard, 4 September 2023, p. 2.

[39]Ms Rachel Stephen-Smith MLA, Minister for Health, Australian Capital Territory, Committee Hansard, 4 September 2023, p. 26.

[40]Australian Christian Lobby, Submission 11, p. 8.

[41]Democratic Labour Party of South Australia, Submission 3, p. 1.

[42]The Catholic Archdiocese of Canberra and Goulburn, Submission 4, p. 5.

[43]Australian Christian Lobby, Submission 11, p. 3.

[44]Mr Ross Hawkins, Regional Chief Executive Officer ACT, Calvary Health Care, Committee Hansard, 4 September 2023, p. 12.

[45]Australian Salaried Medical Officers Federation, Submission 5, p. 1.

[46]Australian Salaried Medical Officers Federation, Submission 5, p. 2.

[47]ACT Government, Submission 21, p. 4.

[48]ACT Government, Submission 21, p. 5.

[49]ACT Government, Submission 21, p. 6.

[50]Northern Territory Government, Submission 19, p. 1.

[51]Northern Territory Government, Submission 19, p. 1.

[52]ACT Government, Submission 21, p. 5.

[53]ACT Government, Submission 21, p. 6.

[54]ACT Government, Submission 21, p. 6.

[55]ACT Government, Submission 21, p. 6.

[56]ACT Government, Submission 21, p. 6.

[57]ACT Government, Submission 21, p. 6.

[58]ACT Government, Submission 21, p. 6.

[59]ACT Government, Submission 21, p. 6.

[60]ACT Government, Submission 21, pp. 5–6.

[61]ACT Government, Submission 21, p. 6.

[62]ACT Government, Submission 21, p. 6.

[63]Ms Rachel Stephen-Smith MLA, Minister for Health, Australian Capital Territory, Committee Hansard, 4 September 2023, p. 26.

[64]ACT Government, Submission 21, p. 7.

[65]See, for example: HCCA, Submission 2, p. 1; ACT Government, Submission 21, pp. 4–5; Northern Territory Government, Submission 19, p. 1.

[66]HCCA, Submission 2, p. 1.

[67]HCCA, Submission 2, p. 4.

[68]Mrs Linda Trompf, President, HCCA, Committee Hansard, 4 September 2023, pp. 18–19.

[69]Dr Patrick McArdle, Chancellor, Archdiocese of Canberra and Goulburn, Committee Hansard, 4 September 2023, p. 2.

[70]Dr Patrick McArdle, Chancellor, Archdiocese of Canberra and Goulburn, Committee Hansard, 4 September 2023, p. 2.

[71]The ACT government noted that there are 'technical flaws' in the Bill. It pointed out that proposed section 75(1) of the Bill requires 'an "inquiry" be conducted by "the Government of the Territory"…but neither term is defined or used elsewhere in the Self-Government Act'. See: ACT Government, Submission 21, p. 5.

[72]ACT Government, Submission 21, p. 4.

[73]ACT Government, Submission 21, p. 4.

[74]ACT Government, Submission 21, p. 5.

[75]ACT Government, Submission 21, p. 5.

[76]Northern Territory Government, Submission 19, p. 1.

[77]Northern Territory Government, Submission 19, p. 1.

[78]Northern Territory Government, Submission 19, p. 1.

[79]Mr Peter Garrisson, Solicitor-General, Australian Capital Territory, Committee Hansard, 4 September 2023, p. 30.

[80]ACT Government, Submission 21, p. 7.