Restoring Territory Rights Bill 2022
01 August 2022
"At its essence, this bill was about whether citizens living in the territories should have the same right, through their local legislatures, as citizens in the states to make their own laws. In my view, there can be no doubt the answer to that question is yes. The granting of self-government to Australia's two populous territories recognised that the people of the territories deserve the same democratic rights as people living in the states."
Address to the House of Representatives, Restoring Territory Rights Bill 2022 - Second Reading
Monday 1 August 2022
Firstly, I'd like to acknowledge at the outset that many individuals have written to me about the Restoring Territory Rights Bill 2022, on both sides of this. I'd also like to acknowledge the work of my colleagues Luke Gosling, the member for Solomon, and Alicia Payne, the member for Canberra, who have already spoken in this debate. I'd also like to acknowledge my territory colleagues that will follow me in this debate, not just here in the House of Representatives but hopefully in the Senate, particularly Senator Katy Gallagher. I wish to acknowledge my friends in the ACT Legislative Assembly that have raised this issue now for the last three to four years.
At its essence, this bill was about whether citizens living in the territories should have the same right, through their local legislatures, as citizens in the states to make their own laws. In my view, there can be no doubt the answer to that question is yes. The granting of self-government to Australia's two populous territories recognised that the people of the territories deserve the same democratic rights as people living in the states. As the then Minister for Arts and Territories, the Hon. Clyde Holding, put it in introducing the Australian Capital Territory (Self-government) Bill 1988:
The Australian Capital Territory (Self-Government) Bill 1988, now before the House will establish the A.C.T. as a body politic, with the legislative and executive powers and responsibilities of the States and the Northern Territory. This Bill represents the most significant transfer of power, on a population basis, since Papua New Guinea became independent. It will allow 270,000 people the same democratic rights and social responsibilities as their fellow Australians.
The A.C.T. and the City of Canberra have well and truly come of age. Canberra is the nation's capital. It is the home of many of the symbols of our nationhood—the National Gallery, the High Court, the National Library and of course this magnificent building—the home of the nation's Parliament. But, and this is often overlooked, it is also home for 270,000 people.
270,000 people live in the Australian Capital Territory. They go about the day-to-day business of their lives, working at their jobs, paying their taxes, making decisions about which schools their children will go to, which doctor or hospital will care for them when they are ill—just like every other Australian. However, unlike every other person in this country—where 'a fair go' is the creed by which we live—they cannot elect a member of their own community to their own government. They have no say in the decisions which affect their everyday lives. What an extraordinary admission in a country so committed to democratic ideals, and why? Are these people somehow different from other Australians? Are they second-class citizens in some way? Do they not understand, or have opinions on, the issues that confront them daily? Can they not be trusted with their own destiny? The answer to all these questions is very simple—the only difference between these people and the rest of Australia is that they live in the Australian Capital Territory!
All that is as true today as it was in 1988, except that there are now over 450,000 people living in the ACT.
It should be noted that there exists a greater democratic deficit for Australian citizens living in our external territories—Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. Citizens in these territories have a limited form of local government. Norfolk Island are currently in administration, but they have no democratic input into critical areas such as health and education and rely on federal representation more than 1,000 kilometres away. If this is to be a parliament that truly cares about territory rights then it needs to also turn its mind to providing a better voice for our less populous territories as well.
When the ACT Legislative Assembly was established, there were exceptions to the powers of the legislative assembly, but these reflected for the most part either limitations that the Constitution itself placed on the states or matters that the states had agreed should be dealt with by the Commonwealth. For example, the ACT Legislative Assembly was not to have the power to make laws with regard to the raising or maintaining of any naval, military or air force or with regard to the coining of money, despite being home to the Royal Australian Mint. Similarly, the act excluded the power to make laws with respect to the classification of materials for the purposes of censorship, which was already the subject of a national scheme under which classification was the responsibility of the Commonwealth. In each case, commonsense dictated that these matters should be solely in the domain of the parliament of Australia. In effect, the ACT was not being placed in a position any different to that of the states.
That leaves two further original exceptions: the acquisition of property other than on just terms and the provision by the AFP of police services in relation to the territory. The first of these was based on a limitation imposed on parliament by the Constitution, while the second reflected the fact that the AFP are under the direction of the Commonwealth minister and policing services in the ACT are the subject of an agreement between the Commonwealth and the territory. That bill was passed with bipartisan support.
While there was some discussion around the detail, the record is clear that, across the political spectrum, there was agreement that the lawmaking powers of the ACT Legislative Assembly and the Northern Territory Legislative Assembly should be equivalent to those of a state parliament. This remained the case until the passage of the Euthanasia Laws Act 1997, which removed from the ACT Legislative Assembly and the Northern Territory Legislative Assembly the power to make laws with respect to euthanasia or voluntary assisted dying. In doing so, that act introduced discrimination in that it remained completely open to any state parliament to pass such laws. The bill before us supports restoring the constitutional position that existed from the time self-government was introduced into each of the territories until the passage of the Euthanasia Laws Act. It will be a matter for each of the territories to decide whether and in what form any laws should be passed in this area, just as it is and always has been for each of the states.
Of course, there are some who may object that the ACT and the Northern Territory are not states and that their legislatures should not have the same powers as state parliaments. Of course it's true that self-government exists only because of acts of this parliament, not by way of constitutional right, and it is within the power of this parliament to amend the self-government acts if it sees fit. However, parliament, having made its decision on the general principle that self-government ought to be granted to the people of the ACT and Northern Territory, would be wrong to pick and choose matters for which we would deny citizens in the territories the rights to govern themselves.
Some of us may be unhappy with the decisions made by the people of the territories, but, if we support the principle of self-determination, we accept their decisions and do not seek to substitute our own any more than we would where the same decision was made by a parliament of the state. Former Senator Humphries said in 2006, when he crossed the floor to oppose the Howard government's disallowance of the ACT's Civil Unions Act:
… we may not agree with the ACT's legislative choices, but we have an obligation to respect them where they are democratically made.
I acknowledge that the legislation on euthanasia or voluntary assisted dying is an issue that provokes strong passions, with firmly held opinions from opposing points of view. That's understandable since the issues relate to matters of life and death and pain and suffering and because we have a critical role to ensure we protect the vulnerable.
Between the time that I spoke on these matters in the Senate, two parliaments ago, in the Federation Chamber in the last parliament and now, both of my parents died, and in both cases I was entrusted to be their power of attorney. While I did not have to make any decisions in relation to my father, I did in relation to my mother and I was able to do so in accordance with her wishes and with access to palliative care. That decision made four weeks ago weighs heavily on my shoulders. Not everyone gets access to palliative care in their last days or decent and respectful care in their later years. Addressing these challenges should be a priority for all Australian governments.
My own personal view is not in support of legalisation of euthanasia. However, with all its gravity, this is not something that should be restricted from consideration by the ACT and Northern Territory legislative assemblies.