Mar 042011

Let’s go for a mish-mash today.

Mish-mash meaning several issues of import, deserving of further airing in a common cause. That cause being, of course, reasoned discussion. Firstly, the issue of Territory legislative equality with States. Jon Stanhope’s piece in the Conservative Express today, short & sweet as it is, clearly defines the crux of what should be a tempest in a thimble. Equality and self-government. Clearly, Con Ex doesn’t think so, given the partisan approach to a scare campaign on gay marriage perpetrated yesterday by Messrs Franklin & Massola, both hacks with form in this area.  I’m greatly amused by this para in Andrew Crook’s Crikey column….

So could the national broadsheet have finally crossed the Rubicon to become the serious political player it clearly imagines itself to be? It seems that nothing, owing to its stellar join-the-dots efforts, had suddenly become something.

I don’t believe for a moment Chris Mitchell ‘thinks’ he’s a player. He believes that he is and has done for a long time. But, back to the Territorial equality issue….

There are 10 Territories with the Australian governmental realm. Two mainland Territories have the right to limited self-government, however, under section 122 of the Constitution the Commonwealth has the power to legislate for the Territories. A brief but succinct description of the mainland territorial beginnings states:

What is now the Australian Capital Territory was ceded by NSW to the Commonwealth in 1911 under the Seat of Government Acceptance Act 1909  and gained self-government under the Australian Capital Territory (Self-Government) Act 1988 . The Northern Territory, ceded from South Australia in 1911 under the Northern Territory Acceptance Act 1910,  gained self-government under the Northern Territory (Self-Government) Act 1978
The two Self-Government Acts function as the equivalent of State Constitutions, authorising the Territory legislature to pass laws for the "peace, order and good government" of that Territory except for matters over which direct legislative authority is retained by the Commonwealth. Both the ACT and NT have their own popularly-elected unicameral legislature, courts and bureaucracy. In the NT the Administrator, appointed by the Governor-General, is broadly equivalent to a state Governor; there is no counterpart in the ACT.

Stanhope makes mention of Section 35 of the ACT Self-Government Act, which the reader may find here. Succinctly, that section permits the Governor-General, as advised by the Prime Minister of the day, to disallow any ‘enactment’ or law passed by the Territorial legislature within six months of its enactment or where the Governor-General recommends amendments – again, as advised by the Prime Minister of the day – the time allowed for those amendments is extended for six months following the recommendation. Effectively, any legislative instrument passed or enacted by any territorial legislature can be struck down by the Prime Minister of the day for up to 12 months after it becomes law within a particular state or territory. Not just conservatively repugnant social reforms like gay marriage, oh no, but ANY piece of legislation under the territorial self-government act.

I have always wondered why, in the current age, the Australian mainland retains these two territories as Commonwealth protectorates, when both have been granted self-government but both remain subject to Commonwealth oversight. The reasons these territories were ceded to the Commonwealth are simple. South Australia in 1911 couldn’t adequately govern the combined SA/NT region. As for the ACT, Canberra was being built and required the regional supporting structures, hence the Australian Capital Territory was created to disseminate federal Capital from State.

Insofar as the Northern Territory is concerned, two instances of activation of Commonwealth plenary power exist:

In 1997, the plenary power of the Commonwealth in respect of the Territory was exercised for the first time since self-government, when the Commonwealth Parliament enacted the Euthanasia Laws Act 1997 so as to amend the Northern Territory (Self-Government) Act to remove the power of the Legislative Assembly to make laws in respect of euthanasia and assisted suicide.

The provisions of the Native Title Act as they relate to States and Territories provide a number of different ways in which land development can be processed. States and Territories can use the national scheme of the Native Title Act, they can replicate the scheme in their own legislation, or they can legislate alternative provisions subject to the strict standards set out in section 43A(4), (6) and (7) of the Act. In respect of alternative State or Territory schemes, the Commonwealth Attorney-General has to consult representative bodies about the proposed scheme. After considering any submissions received pursuant to section 43(1)(b) of the Act, the Minister may make written determination that the scheme complies with the required standards. The written determination of the Commonwealth Minister is a disallowable instrument and, under section 46A of the Acts Interpretation Act of the Commonwealth, the determination is treated like any other disallowable instrument. Information Paper No 2 – History of Administration in NT – revised September 2010. Between August 1998 and June 1999 the Assembly legislated, in three stages, in accordance with the requirements of section 43A of the Native Title Act. The ultimate scheme legislated by the Assembly was endorsed by the Commonwealth Attorney-General as having complied with the standards previously determined by the Commonwealth Parliament. On 31 August 1999 the determination involving the Territory legislation for an alternative scheme was disallowed by the Senate.

Both instances being clear & distinct expressions of social conservative dogma enacted during the Howardian era of Australian politics. Equally, use of Section 35 of the ACT self-government act was made by the socially conservative Howard government on two occasions, the first in 1996 when a Private Members Bill sponsored by Liberal member Kevin Andrews, inserted provisions into the self-governing Acts of the ACT and the NT to prevent the respective legislative assemblies from making laws in relation to euthanasia. The second, when the ACT’s civil unions legislation was disallowed by way of executive action, namely by the Governor-General using a legislative instrument under section 35. Of course, the Governor-General cannot act on his or her own auspices, and so must have acted on Prime Ministerial advice. A Private Members Bill is currently before the Senate, sponsored by Senator Bob Brown, a re-activation of a previously lapsed instrument from 2006 which lay on the Senate table until being caught up in the proroguing of both houses in 2007.

Clearly, caveats like Section 35 exist to derail discordant legislation not in favour of the general populace within the respective territorial governance, but the question must be asked, what possible social harm can come from allowance of much needed reforms such as the consideration of Euthanasia and Gay Marriage? Obviously the disallo
wing events recorded thus far are based on pure ideological bent with no consideration whatsoever being given to social demand. I support Stanhope’s case purely from the perspective that territorial paternalism is an outdated anachronism from a time now well and truly past. Why grant self-government if it doesn’t include the right to self-determination for the citizens of that government? Hardly democracy, is it?

Now, linked to the first issue but not directly, is this observation by Ken Wiltshire of supposed dysfunction within the current minority government. I think the following comment to the piece states my own position very well.

That’s why it’s called a democracy. People get to vote and choose who they give power to. The greens got the votes, so did independents, so they can now influence policy. Next election, the people will again get to decide who deserves their vote. Why bemoan the fact that we are inheriting the consequence of our decisions?

An obvious and rational response to this academic’s already clear partisan view. Partisan? Yes indeed. You see, reader, Mr Wiltshire has form. Mr Wiltshire’s performances as represented in the previously linked article, and further exposed in this Crikey piece are clear and present intellectual dishonesty. His op-ed today whining about a democratic process which has failed to deliver what he expected as a coalition victory is simply more of the same dishonesty.

There is nothing wrong with our system of government, just as there is nothing wrong with the current minority government. What is ‘wrong’ if indeed that word can be used at all, is the continual and increasingly shrill level of hysteria coming from conservative apologists, ranging from News Corporation media editors to twitter aficionados who gather in their #auspol circle to mutter & bleat about a process with which they’re unhappy, but also powerless to change to their narrow worldview settings. This current minority government should, and in my view MUST run its course, where-ever that course leads. That is democracy. The “worst form of government, except for all those other forms that have been tried from time to time” as Winston Churchill opined. Critics now agree that while Churchill won the war, he was not the man to lead Britain into the peace. As with the long dark era of Howardianism, during which Tony Abbott was a principal player, he is not the man to lead this country, or the Liberal Party, into a period of much needed reform.

So, to conservatives everywhere I say this. Whinge as much as you like, but nothing is going to change until 2013, when you, along with every other Australian citizen of voting age, will have another opportunity to have your say. Until then, no amount of false supposition, logically fallacious argument, stamping of feet or frothing from the mouth is going to effect the democracy you seem to despise so much.

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