Page 3741 - Week 12 - Wednesday, 22 November 2006
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Mr Speaker, this motion should be supported today and it should be supported by each and every one of us in its totality. The challenge for those opposite is to explain why an unelected official should have the power to overturn the law made by a democratically elected parliament. That is your challenge today. Your position is an untenable one and it is one that goes against the rule of democracy—unelected officials overturning the laws of democratically elected parliaments.
Absolute power is vested in parliaments, as it should be. Parliaments make the laws. Unelected officials, particularly those based on hereditary descent, should have no role in determining what the rules are in a democracy. Only the people’s elected representatives should do so. Mr Speaker, this type of approach has been out of use for centuries in the civilised world. When you go looking for examples of this type of behaviour, you have to go back more than 300 years to find an instance where an unelected official has had the power to overturn the law of an elected parliament in the way that we saw earlier this year.
The law and conventions concerning the role of an unelected governor or governor-general have developed over many centuries and the law and conventions remain an essential part of our democratic system of government. Indeed, the courts developed a branch of the law, known as the law of public trusts, to check the abuses of governors sent to administer the first settlements in the Americas—colonies and plantations at first, states and commonwealths in time.
Both the law and the convention derive from a time when the executive arm of government, generally the governor of a remote colony, acted in an autocratic manner, sometimes against the express wishes of an elected legislature. But even then the executive arm of government did not have carte blanche. The common law developed a series of constitutional principles enshrined in the law of public trust which provided protections against arbitrary executive action. So there is well-established law on the issue of the Queen’s representative or the crown’s representative intervening in the law-making power of elected legislatures. It is longstanding and the principle is important. The principle is fundamental in a democracy. The position of those opposite is untenable. The Governor-General should not have this power.
DR FOSKEY (Molonglo) (11.21): It is hardly surprising that I will be supporting Ms MacDonald’s motion today, and I thank her for raising it. It is interesting that this debate has become a debate primarily between the government and the opposition. Whilst it was my colleague in the Senate, Bob Brown, who first brought this issue before an elected house, I feel as though I have been relegated to the role of bit player in this debate.
Mr Mulcahy: I don’t disagree. Ha, ha!
DR FOSKEY: I am glad that people laugh. I like to see laughter in this place. On Monday, 19 June, in response to the federal government’s disallowance of the ACT’s civil unions legislation, Greens Senator Bob Brown tabled the ACT (Self-Government) Amendment (Disallowance Power of the Commonwealth) Bill 2006. As we know, the federal parliament’s power to disallow territory laws comes from sections 52 and 122 of the constitution. Section 122 specifically gives this power
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