Page 454 - Week 02 - Tuesday, 8 March 2011

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MPs from Queensland, by men and women whose names we do not even recognise and whose acquaintance with this city never extends beyond the parliamentary triangle, to an existence in which any law passed in this place is liable to be extinguished without debate, without argument, any time a federal minister happens not to agree with its substance. And it is not just controversial laws, not just laws that nudge up against the limits of constitutional responsibility. It is any old law. A quick phone call to the Governor-General and it is gone in an instant, at the stroke of a pen. No debate. No to and fro of opinion. No need for the powers of persuasion. No need for numbers.

The aggressive tone and illogic of some of the commentary that has greeted the Bob Brown bill is instructive. The Murdoch press—it has to be said a well-known defender of our democratic institutions—went so far as to suggest in an editorial that the relatively high educational attainments of Canberrans compared to the national average somehow rendered us less able to legislate for ourselves than our fellow Australians in other cities. Actually, it is irrelevant whether Canberrans are better equipped or worse equipped than their fellows to legislate wisely. First principles insist that we be given the same opportunity as others to both flourish and founder, the same licence to make history or to make mistakes.

The people of the ACT are not seeking superior powers to those of the rest of the nation, just equal powers. We just want the right to make laws for the good governance of this territory within the limits of our constitutional powers, without interference from people who will be unaffected by our laws and who are irrelevant to our lives. All we want is for Australians who happen to be born here, rather than, say, over the border in Queanbeyan, to have the same birthright, the same opportunity to have their own parliament legislate on their behalf, knowing that those laws cannot subsequently be overturned without a word of explanation or a moment of debate.

Section 35 of the Australian Capital Territory (Self-Government) Act is the offending passage, the one that Senator Brown proposes to be scrapped. This is not an academic argument. We Canberrans live with the spectre of disallowance. The threat has already been carried out once when the Howard government used the provision to fight, and indeed to overturn, the ACT’s original civil unions legislation. And more recently a threat of disallowance was made by the Rudd government in relation to a proposed strengthening of the territory’s civil partnership laws.

The absurdity of these acts lies in the fact that any one of the state parliaments in this country could decide tomorrow to legislate for something that could go by the name of “gay marriage”. Similarly, any state could legislate for euthanasia and be constitutionally entitled to do so. The ACT could so legislate, too, if it chose, at least in respect of gay marriage.

The difference—and the second-class citizenship—derives from the fact that if the commonwealth disapproved of a Victorian, Western Australian or South Australian law, it would need to either take the matter to the High Court and argue that the legislation conflicted with the commonwealth’s Marriage Act or change the constitution to remove the rights of the states to legislate in that area. In the ACT, the Prime Minister—or indeed any minister—can simply instruct the Governor-General

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