2019 Lecture Transcript

Established as a body politic…: thirty years of self-government in the ACT

Chief Minister’s Governance Lecture for 2019

John Halligan
Institute for Governance and Policy Analysis
University of Canberra

I acknowledge the traditional owners of the land on which we meet and offer respect to Elders past, present and emerging.

I am delighted to present the Chief Minister’s Governance Lecture for 2019 on the occasion of the 30th Anniversary of self-government. My thanks to the Chief Minister, Andrew Barr, for the invitation and introducing the topic, and the assistance of the Territory Records Office.

I also acknowledge Emeritus Professor Roger Wettenhall, University of Canberra, ACT’s university who led the research focus on ACT self-government in the seminal years, including the 10th anniversary. Staff from the Institute for Governance and Policy Analysis have been responsible for the three reviews of the application of Latimer principles to ACT branches of government.

The lecture serves three purposes: to recognise the 30th Anniversary of self-government; to acknowledge the release of archival documents for 1998, with a focus on the Review of Governance; and in particular to examine briefly self-government and relationships with the Commonwealth. There is a lot that might be covered so I’ve had to be quite selective in the three questions that are addressed:

1. What does self-government mean in the ACT context?
2. Has the ACT justified self-government by its institutional development?
3. Has self-government been allowed to flourish? To what extent has proper self-government been supported and facilitated or been retarded and denied.

In seeking answers, I have drawn on the resources of the Territory Records Office and its release of documents for 1998, including the 1998 Review of Governance, and the 2019 report on the application of Latimer principles.

What does self-government mean in the ACT context?
The ‘body politic’ is defined as a group of people organised under a single government authority. For our purposes the centrality of citizens is important. This seems to be the place to pose four questions about the identity of the ACT, and the existence of multiple dualisms.

1) The Capital Territory versus the National Capital
The latter is under the jurisdiction of the National Capital Authority (NCA) and subject to the Commonwealth Parliament’s Joint Standing Committee on the National Capital and External Territories. The need for an NCA is generally accepted, but how it functions and relates to the ACT government has been problematic at times. There are different accountabilities and questions about how we define and envisage a capital city.
For the Council of Capital City Lord Mayors, an organisation that the ACT belongs to because of its municipal functions, the question has been posed as to how inclusive were capital cities in terms of areas and the institutions of the capital? For the ACT, the question is different because of hollowed out government (check a map of ACT with national land and designated areas superimposed on it).

2) City and state
The ACT is known as a hybrid, a city-state that combines the functions of state and local governments (Halligan 2015; Wettenhall 1998).

3) Westminster and municipal – organisational
The ACT is both constituted on a responsible government basis following Westminster principles and a corporate structure for its administration that draws on large local government. and tight integration.

4) Self-government under the 1988 Act
Self-government for the ACT meant, as the 1998 Review of governance indicated, that the ACT took on the standard range of powers of state governments. The powers were always qualified by exclusions and the maintenance of the Commonwealth’s capacity to intervene. The latter could override ACT legislation by amending the self-government act. Self-government then is a relative concept: the ACT was certainly more self-governing than before but had fewer powers than was required for parity with the states as a jurisdiction within the federal system.

Has the ACT’s governance record justified acquiring self-government?
The 1998 Review of Governance was to focus on the organisation and operation of the legislature and executive, and the ability of the community to participate in territory government; and to recommend improvements. The extensive internal discussions, consultations and inquiries of 1998 made significant contributions, but further reviews and legislation were necessary to reach today’s position.

The Legislative Assembly was enlarged (as recommended by the Review of the Governance in 1998) and its roles and autonomy enhanced on several occasions. There has been an evolution of procedures, the role of speaker, and the committee system. The ACT Legislative Assembly has continued to perform well against Latimer House Principles on the performance of the three branches of government (and the benchmarks of the Commonwealth Parliamentary Association 2018) as a unicameral parliament with broad responsibilities. The most recent and comprehensive indication is the assessment of the ACT’s record against 132 CPA benchmarks. The results indicated that the Assembly ‘fully complied with the spirit and letter of the benchmark’ in 79% of the cases; and partially complied with 12%. Non-compliance and not applicable made up the remainder (Duncan 2019).

Several indicators are used to examine the relative independence of MLAs (who are still acting as members of political parties): the functioning of committees, the attention given by the assembly to non-executive bills, the willingness of the Executive to accept amendments from non-executive MLAs, non-government questions and the time assigned to non-government business (Halligan and Sheehy 2019).

With the executive, the Ministry increased in size from four to five as a result of the 1998 Review of Governance and the government also took up the option of appointing a non-government member as a minister (Carnell 1998). The five ministers subsequently increased to 8, which covers more effectively the diverse functions of ACT government.

The ACT administration has been restructured to reflect the Hawke model (ACTPS Review 2011) to be more corporate and integrated. Independent agents or agencies have been created, notably those that are Officers of Parliament (e.g. auditor-general, ombudsman and electoral commissioner). The most recent case was the Integrity Commission. Despite being a smaller jurisdiction than most states, there were adaptations to suit the scale of ACT government. In terms of open and consultative government, significant initiatives have included the introduction of and revisions to FOI legislation and position on open government access to government documents including cabinet decisions. Various consultative and input mechanisms for community engagement have been developed and expanded. Another notable feature has been that the gender basis of senior appointments in all three branches of government in 2019 is around parity.

The ACT has kept pace with broader thinking about governance, and in some cases, has been ahead of it. There has been a succession of regular reviews over two decades (external and internal) including three on applying Latimer principles to the performance of the ACT’s branches of government. A number of indicators of institutionalisation and maturity can be observed (e.g. Duncan 2019).

Has the ACT been allowed to be self-governing?
The third question raises issues about the extent to which self-government has been allowed to flourish. The ACT, along with other territories, is under the authority of the Commonwealth parliament with the constitution being the source of its power for making laws for territorial government. This is assumed to be a plenary power, equivalent to the ‘peace, order and good government’ powers of self-government accorded to the states under their constitution acts. The Commonwealth has had a legitimate interest in seeking uniformity in regulation, laws and so on across the federation, but inconsistencies arise with regards to the capability of states and territories. The Commonwealth has both facilitated the operation of self-government and also acted to retard self-governing.

There are two recent post self-government initiatives that have supported territorial governance. The Territories Self-Government Legislative Amendment (Disallowance and Amendment of Laws) Act 2011 removed the power of the Governor-General to disallow or recommend amendment to laws made by the ACT’s Legislative Assembly. A Commonwealth minister could no longer reject ACT legislation, but there remained provision for the Commonwealth parliament to pass legislation with this effect. A second initiative was the power to determine the Assembly’s size, which had remained with the Commonwealth, but was addressed in 2013 when it was argued that the ACT had demonstrated maturity during the 23 years since acquiring self-government and should not be treated differently from comparable jurisdictions.

According to the Pettit Review (ACT Government 1998), ‘the constitutional system subordinates the ACT to the Commonwealth in a measure that does not fit well with the idea of the self-governing territory’.

The ongoing debate regarding the ACT Legislative Assembly’s right to legislate on behalf of the ACT community without undue intervention by the Commonwealth, noting the recommendation of the Pettit Review concludes that such interventions ‘should be on the grounds that the legitimate interests of the Commonwealth require such action’.

The governance of the ACT has continued to be constrained. This goes back to self-government when the Commonwealth imposed conditions that left the ACT system with ‘features more akin to a nineteenth century colonial position than a modern Australian territory’ (Williams 2011). The ACT remains in some respects a stunted system of governance that has been constrained by another level of government and lack of agreement on key issues. Whether by legislation or ministerial fiat, actions of the Commonwealth to veto territory laws have reduced the status of the ACT (Halligan 2011).

The Commonwealth has used its powers to either ‘pre-emptively deny the ACT’s law-making authority’ or to threaten their use on several occasions, thereby creating ‘a precedent for the ongoing intervention’. The conclusion to be drawn is that the Commonwealth does not accept that the territories are capable of developing appropriate laws (Williams 2011).

Three issues stand out for differential treatment of the Australian Capital Territory compared to the states. The first was same-sex marriage, which was legalised in the ACT, but the legislation was then nullified by the High Court following a challenge by the Commonwealth government (only for it to be subsequently legalised by the Commonwealth parliament).

In the second case, the Senate rejected a bill to allow the ACT and the Northern Territory to make laws on assisted dying. This lead the Chief Minister to move a remonstrance motion in the Legislative Assembly about the democratic rights of ACT citizens, which made the following observations (ACT Legislative Assembly, Hansard 16 September 2018, p.3052):

that subsections 23(1A) and 23(1B) of the Australian Capital Territory (Self-Government) Act 1988 are unwarranted restrictions on the democratic rights of residents of the Australian Capital Territory; …the abovementioned subsections form legislation that the Commonwealth Parliament could not, and cannot, constitutionally enact for the States’.

The third case about the use of cannabis, was a different type of issue because it entailed overlapping jurisdictions. The legislation passed by the ACT Legislative Assembly in 2019 allows possession of up to 50 grams per person and cultivation of up to two plants per person and four plants per household (and a range of other limits on use exist). This conflicts with Commonwealth law that prohibits the possession of cannabis, which is applicable across all Australia jurisdictions, and police officers are empowered to enforce these laws. However, ACT Policing is part of the Australian Federal Police, a Commonwealth government agency, although it is responsible to the ACT government. Despite a Commonwealth warning about legal protection there have been no moves to overturn the ACT laws. The operational solution appears to be that ACT Policing officers employ their discretion to apply ACT or Commonwealth laws depending on the situation.

The question remains as to whether the ACT should have powers and standing commensurate with the states. The Review of Governance (1999) recommended that the ACT’s Self-Government Act should contain a preamble that ‘if the Commonwealth Parliament intervenes in assembly business, or if the Governor-General chooses to disallow an enactment of the Assembly, then that should be on the grounds that the legitimate interests of the Commonwealth require such action’.

State or Territory?
A ‘state’ scenario for the ACT is not regarded as viable because it raises difficult questions such as national representation, but there is the question of the continuing use of the term ‘territory’, which generally connotes an area owned or controlled by a national ‘state’. Historically, it may have had two attributes: a large sparsely populated area (at least by people of European extraction), and underdevelopment. Being an internal territory has been a step towards a higher status, a province or state (whereas external territories may remain indefinitely). Numerous examples existed in North America, and Canada still has three northern territories, although only one uses territory in its title.

The Joint Standing Committee on the National Capital and External Territories lumps the ACT in with unalike entities, including micro-island areas in an omnibus Territories Legislation Amendment Act (e.g. 2016) that covers inter alia child support for residents of the Indian Ocean Territory (Christmas Island & Cocos Islands). Two questions deserve consideration: Is territory status an anachronism that connotes an inferior standing? How should we be thinking about Canberra when the idea of the ‘national capital’ is owned by the National Capital Authority and divorced from the elected representatives of the ACT?

What has not evolved? Translating late 1990s to the 2020s
In recognising the 30th Anniversary of self-government the accomplishments are substantial as outlined above. But there is also unfinished business concerning identity, governance and representation. Several recommendations of the Pettit Review (ACT Government 1998) were rejected by an Assembly select committee on the review (ACT Legislative Assembly 1999). One recommendation was approved in 2004, a second was initially followed but then a reversion occurred, a third was acted on in the short term but left in the long term, while a fourth was ignored. The four, as discussed below, concern major aspects of governance and representation.

a) Four-year term for MLAs
Recommendation 4: ‘The fixed term of the Assembly should be extended from three years to four’. This was recommended but rejected by an Assembly select committee (ACT Legislative Assembly 1999) on the grounds of accountability, then subsequently approved. The question of the impact of the length of the parliamentary term on good governance remains a valid issue for democratic systems.

b) Ministers’ department responsibilities
The Pettit Review recommended ministers be responsible for one department rather than having departments reporting to multiple ministers. This principle of one portfolio was initially applied (Carnell 1998), but then governments reverted to an alternative principle that recognised a range of clients and specialised fields of public interest, which has meant ministers having responsibilities in up to six directorates (Halligan with Sheehy 2019).

c) Provision for increasing the legislative Assembly/Ratio of representatives to electors
Recommendation 6: ‘As the A.C.T. population grows, the ratio of representatives to electors should be maintained at or above the very modest level of 1:10,000 that obtained in 1989, when self-government was introduced’.

An increase was supported in 1998 by the then chief minister Kate Carnell and later acted on by chief minister Katy Gallagher, after the Commonwealth rescinded section 35 of the self-government act covering Commonwealth’s powers. There is however no provision for a regular review and expansion of MLAs to maintain the recommended ratio. The ratio is 1 MLA: 11,808 electors and growing (295,197 for 2019). The slippage is increasing: the MLAs elected in October 2020 will on average represent approaching a third more than in the past.

d) Access and questions about the representative basis
Recommendation 27: ‘The Assembly ought to explore financially modest arrangements … for electorate offices where local MLAs can make themselves available to their constituents, at convenient times, on a rata basis’. This option was never taken up presumably because it was rejected by an ACT select committee (ACT Legislative Assembly 1999). Pettit found the committee’s response that members should determine their electoral arrangements to be ‘numbing’ (Pettit 2000). Questions about how MLAs relate to constituents in multi-member electorates remain (particularly where their presence is negligible except for election time). Two decades on, has it been partly superseded by new modes of communication?

The broader questions are touched on in the third report (Halligan with Sheehy 2019) to the Legislative Assembly on the application of Latimer Principles. The Assembly provides an extensive range of information and documents about its members and operations, including performance indicators. The several avenues for public participation include submissions to committee inquiries, access to public hearings of committee inquiries and Assembly meetings, citizen’s right of reply, petitions, and access to administrative records and general files through freedom of information requests.

One dimension of MLAs’ response to constituents is considered here. Information is available about MLAs’ handling of constituent matters defined as matters referred by MLAs to the Executive for action. The Legislative Assembly’s performance report card has used a six-point spectrum from ‘Very unhealthy’ (completely dominated by executive government) to ‘Very healthy’ (Highly democratic and balanced) (ACT Legislative Assembly nd). The figures for recent years were deemed to be ‘unhealthy’ and suggested a downward trend. This understates the work of MLAs who receive communications from interpersonal contact and social media etc and have other means for attending to constituent needs.

Envisaging a future Canberra
More needs to be done to anticipate the medium-term governance needs and conceptualisation of the Canberra model as it moves towards half-a-million people Halligan with Sheehy 2019). The Executive has been giving this attention, and the Assembly might consider what it can contribute in the 2020s. A strong tradition of review and reflection has been developed in the ACT’s short history, which has been to its great benefit and needs to be built on. How should we be thinking about Canberra’s governance futures?
In conclusion there is much to celebrate at the time of the 30th Anniversary of self-government in ACT. I wish to repeat my appreciation of the Chief Minister’s invitation, the support from Danielle Wickman Director of Territory Records Office and access to the records and Michael Piggott, Chair of the Territory Records Advisory Council.

ACT Government (Chair: P. Pettit) (1998) Review of the Governance of the Australian Capital Territory, ACT, Territory Records Office, Canberra.
ACT Government (2013) Review into the Size of the ACT Legislative Assembly: Report by the Expert Reference Group, Canberra.
ACT Legislative Assembly (1999) Report of the Select Committee on the Report of the Review of ACT Governance, Canberra.
ACT Legislative Assembly (nd) Parliamentary Performance Report Cards 2012-2018.
ACTPS Review (2011) Governing the City State: One ACT Government – One ACT Public Service, Canberra.
Carnell MLA, K., Chief Minister (1998) Letter to P. Osborne MLA, Chair, Select Committee on the Report of the Review of Governance, Territory Records Office, Canberra.
Duncan, T. (2019) Making the Grade: Legislative Assembly for the ACT–assessment against the updated CPA Benchmarks for Democratic Legislatures, paper presented to 50th Presiding Officers and Clerks Conference, Brisbane, 8-11 July.
Halligan, J. (2011) An Assessment of the Performance of the Three Branches of Government in ACT Against Latimer House Principles, Report to the Standing Committee on Administration and Procedure of the ACT Legislative Assembly, Canberra.
Halligan, J. (2015) ‘Governance in a Hybrid System: designing and institutionalising the Australian Capital Territory’, Policy Studies, 36(1), pp.4-17.
Halligan, J. with B. Sheehy (2019) Review of the Performance of the Three Branches of Government in the Australia Capital Territory against Latimer House Principles report to the Standing Committee on Administration and Procedure of the ACT Legislative Assembly, Canberra.
Office of the Legislative Assembly (2018) Annual Report 2017-2018, Legislative Assembly for the Australia Capital Territory, Canberra.
Pettit, P. (2000) Three Problems with ACT Governance, in J. Halligan and R. Wettenhall (eds.) (2000) A Decade of Self-Government in the Australian Capital Territory. Canberra: Centre for Research in Public Sector Management, 81-89.
Wettenhall, R. (1998) ‘Governing the A.C.T. as a Small Quasi-State’, Canberra Bulletin of Public Administration, 87, February, 8-20.
Williams, G. (2011) Submission to the Inquiry into Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Commonwealth) Bill 2010, Territory Records Office.