An ACT expeditionary force?

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The Senate today passed a private Senator’s bill, sponsored by Bob Brown, titled the Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Commonwealth) Bill 2010.

The Bill is simple:

The problem though is that this bill puts no restrictions on what the ACT can legislate for. There is no equivalent of section 109 of the Constitution:

109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

In effect, under this bill, the ACT could in theory pass laws on any of the matters otherwise reserved for the Commonwealth in section 51 of the constitution, including printing money, constructing a lighthouse or providing for the military defence of the Commonwealth. The territories would have greater powers than the states.

It would be up to the Commonwealth parliament to strike down any such laws under section 122 of the constitution but such laws could probably not be made invalid by the High Court because the Commonwealth can delegate whatever powers it likes to the ACT under section 122.

An ACT army might be an exaggeration but those NT cattlemen are pretty worked up at the moment.

More tellingly, the ACT could pass legislation on marriage, even in a way inconsistent with the Commonwealth Marriage Act 1961.

Potentially, the High Court could not invalidate such legislation, the only way to do so would be to pass legislation in both houses of Parliament.

For these reasons, Senator Brandis moved an amendment to Bob Brown’s bill which stated that:

In explaining this amendment, Senator Brandis commented that:

If this bill were to be passed in its existing form, without the qualification the opposition seeks to introduce, we would have the unusual situation that the territories would have broader legislative powers than the states because section 109 of the Constitution applies to state laws, not to territory laws. So the device of this amendment is to apply the same test to territory laws as section 109 of the Constitution imposes upon state laws.

Bob Brown rejected the amendment stating that:

I have explained that euthanasia is prohibited by legislation through this parliament, but the matter of marriage is not. What Senator Brandis is arguing is that we should, on the very day we are trying to enhance and make more equal the rights of the voters of the Northern Territory and Australian Capital Territory, bring in a provision that cuts down those rights in the matter of marriage—because it will be a prohibition that is not there in state law.

But Brandis’ amendments would not give the territories any less power than the States, given that the amendment simply places on territories the same restrictions that the combined effect of sections 51 and 109 of the constitution place on the states.

Debate was then immediately gagged and a vote was forced, in which the bill was passed with Green and Labor support. Some Labor members abstained.

The bill now goes to the House and under the terms of the new paradigm must be voted on within 6 days.

Expect to hear a bit more about this.