Page 633 - Week 05 - Tuesday, 4 July 1989
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Mr Speaker, it is worth noting that "exclusive" means "to the exclusion of all others". It is understood that this exclusive power is by no means absolute but is, as the conditional clause in section 52 states, "subject to this Constitution". Therefore, such exclusive power is limited by section 125 and any other relevant sections of the Constitution.
The third point concerns the New South Wales Seat of Government Surrender Act 1909, obviously the Act under which New South Wales surrendered the Territory. There were also the Commonwealth Seat of Government Acceptance Acts 1909 and 1973. These Acts define the terms and rights under which the New South Wales Government surrendered, and the Commonwealth Government acquired, the Territory for the Australian capital in the first place. It could be viewed that these Acts suggest that under the special meaning assigned to the word "surrender" the New South Wales people should have been consulted via referendum should a change of use - for example, a Legislative Assembly State-like government - be proposed.
The essence here, as with the granting or surrendering of any land which is granted for a specific purpose in perpetuity, is that any change of use of that purpose may well invalidate the terms of the acquisition in the first place and require some form of approval from the grantor. In the context of land conveyancing the terms "grant", "surrender" and "acquisition" have individually different and specific meanings.
In addition to this point, the precise nature of the purpose as defined in the Act would preclude the use of the Territory for other purposes. Once again, I use as an example the purpose of creating a State-like government or a separate State. The definition of this purpose in the Act is as follows: "The State shall surrender to the Commonwealth and the Commonwealth shall accept for the purposes of the seat of government the territory now being part of the State described hereunder". The State described was, of course, New South Wales.
Mr Speaker, I do not ask members of this Assembly to make a determination as to the constitutional validity or otherwise of the enabling Acts. What I do ask is that they allow the matter to be looked at, for there are not one but three areas of the Australian Constitution Act that raise serious doubts, any one of which would give rise to validly asking the question.
I can understand the reluctance of some members of this Assembly in viewing the matter, but there can only really be two questions, or two answers, to look at. Firstly, there is a constitutional doubt here or, secondly, there is not. If there is not, I suggest there is no problem at all in putting the matter to a committee. I have not asked for a separate inquiry to be called to look into the matter, but simply have asked that it be included as one of the
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