Hare-Clark, euthanasia, intergovernmental relations, Legislative Assembly, minority government, multi-member electorate, National Capital Authority, same-sex marriage, territory rights, unicameralism
It is paradoxical that the Australian Capital Territory (ACT), as the national capital and seat of the federal parliament, should have the least political representation of any state or territory jurisdiction in the country per capita. Despite having a population similar to that of Tasmania, the ACT currently has two federal electorates, two senators and a 25-member Legislative Assembly. Tasmania, by comparison, has five federal electorates, 12 senators, a 25-member lower house and a 40-member upper house, as well as 29 local government areas.
This chapter will explores the ACT’s history and process of government – what can be described as Australia’s only ‘city state’.1 In doing so, it asks a number of questions. Given the disparity in representation, is the ACT more or less effectively governed than other jurisdictions? Is its relationship with the Commonwealth government different from that of other states and territories? Situated within New South Wales (NSW), what is its political and policy relationship with that state? Are there constitutional provisions for its government? What level of autonomy does the ACT possess for policy?
The ACT is a creature of Australia’s adoption of federalism in 1901. At Federation there was no officially proclaimed national capital. The first federal parliament met in Melbourne while the government decided on where to locate the capital to provide it with security and also not ‘favour’ either Sydney nor Melbourne. The search for a suitable place was narrowed down to a spot mid-way between the two rival cities, and the site for Canberra – on the land of the Ngunnawal people – was chosen in 1908. The territory was formally ceded to the Commonwealth by NSW in 1909. Work on the city was interrupted between 1914 and 1918 by the First World War, and parliament finally moved into its ‘temporary’ Parliament House in 1927; it would remain there for a further 61 years before the permanent one opened in 1988.
As a planned city that embraced modern concepts like private car ownership and suburban living, Canberra was always intended to be a showpiece – the nexus of national government in a garden city. It is the site of various national institutions and monuments, as well as the instruments of government: government departments, agencies and related bodies. During the construction of the city, most of the public service departments remained in Melbourne, but as Canberra was completed, stage by stage, the departments moved to the seat of government. This process explains why, even today, many peak bodies and lobbying organisations are still headquartered in Melbourne.2 The post–Second World War years saw a very rapid increase in population with the expansion of the departments and the associated construction of housing and city amenities. Between 1955 and 1975, the population of the ACT increased by 50 per cent every five years.
During the 1970s, the population of the ACT increased to 224,0003 and there was a growing push for self-government. According to Halligan and Wettenhall, there were largely two schools of thought regarding this proposal: self-government advocates believed that Canberrans, with no state or territory level of government, did not have the same democratic rights as other Australians; opponents to self-government ‘preferred to trade these rights for the financial benefits that came from being a federally protected and heavily subsidized enclave within the nation’.4
In 1978, an advisory referendum was held for ACT residents on self-government. Voters were given three choices on the ballot form: retain the current arrangements; self-government; or a local council arrangement with legislative and executive responsibility. The result of the referendum was overwhelmingly in favour of retaining Commonwealth administration (see Table 1).
By the late 1980s, however, the ACT population had grown to almost 300,000, and the Commonwealth, despite the results of the referendum, decided that the ACT should become a self-governing jurisdiction. This required four separate Acts of the Australian government:
These Acts were signed into law on 6 December 1988. The first of these is essentially the constitution of the ACT and sets out the framework for government and the system of governance. The Australian Capital Territory (Planning and Land Management) Act 1988 oversees the ACT Plan and the Spatial Plan, which set out the development provisions for the ACT, and comes under the auspices of the National Capital Authority.
Today, the ACT is governed by a unicameral 25-person Legislative Assembly, elected under the Hare-Clark electoral system (see below). The ACT does not have its own police service; instead, general policing is carried out by the Australian Federal Police.
The government of the ACT is a hybrid organisation.5 Like a state government, it is responsible for developing and implementing policy across the normal territorial responsibilities: finance and economy, justice, environment, education, health, housing and development, transport and employment. In addition, it has responsibility for municipal functions: waste management, sportsground maintenance, kerbing and guttering, development applications, and parks and gardens.
The first ACT election was held on 4 March 1989. It was conducted under a modified d’Hondt (party list) electoral system, the whole of the ACT comprising one 17-member electorate. The election was contested by 117 candidates, representing 22 political parties and independents.
A measure of the somewhat jaundiced view of residents towards self government in 1989, and also reflecting the results of the earlier referendums, was that the parties contesting the election included the Surprise Party, the Sun-Ripened Warm Tomato Party and the Party! Party! Party! Further, the first House of Assembly included eight representatives from anti-self-government parties: No Self-Government, the Abolish Self-Government Coalition and the Residents Rally Party. It took almost two months to finalise the counting of votes, and the final result was a minority Labor government led by Rosemary Follett.
While Follett’s government managed to navigate the first tentative steps of government, a key player in the transition to self-government was William Harris, the secretary of the Chief Minister’s Department. Harris was the architect of the ACT’s first budget, a ‘task that involved identifying all federal government spending on the territory by dozens of departments and agencies, and then overseeing the design and establishment of a purpose-made public service to operate at both state and municipal levels’.6 Over time, the ACT has managed to navigate autonomy well, consolidating its administrative functions and moving to a more stable electoral system.
Until the 2016 election, the Assembly had 17 members elected from three electorates: Molonglo, Ginninderra and Brindabella. In 2013, ACT Electoral Commissioner Philip Green held a review of the size of the Assembly. This was motivated by the expanding population, and because the ministerial responsibilities of minority government members had expanded, reducing the degree to which ministers could undertake all their duties. The report recommended that:
The government accepted the first recommendation, and, in 2015, a redistribution of electoral boundaries was held, increasing the number of electorates to five, each electing five members.
The modified d’Hondt system under which the first Assembly was elected was superseded by the Hare-Clark system. The Hare-Clark system is also used to elect the Tasmanian lower house, and is a proportional representation system using a single transferable vote (STV), where the vote transfers from candidate to candidate according to the preferences of the voter. In a five-member electorate, voters must number a minimum of five squares on the ballot paper.
The ballot form itself follows the Robson rotation system, meaning that the candidates’ names in the party lists on the ballot form are rotated so no single candidate is listed at the top of every form. The 2016 election, the first with the extended assembly, attracted 10 registered political parties and a total of 141 individual candidates. The result was a minority Labor government supported by two Greens members.
With slight representation in the national parliament, the ACT has a complex and often fraught relationship with the federal government. Self-government saw the ACT better able to participate in Australia’s system of federal intergovernmental relations, through inclusion in the peak intergovernmental relations body, the Council of Australian Governments (COAG). But the ACT suffers from ‘co-location’, being both Canberra-as-national-capital and Canberra-as-distinctive-entity in its own right.8
Upon self-government, the National Capital Development Commission was superseded by the National Capital Authority (NCA). The NCA is an agency of the federal government with responsibility for the ongoing development of Canberra. This authority extends to land to be released for development, the preservation of the Burley Griffin plan for the city and the maintenance of the historical integrity of the capital. The ACT government, therefore, must operate under the auspices of the NCA for all planning and development decisions.
Complicating the relationship between the ACT and federal governments is the fact that the Parliamentary Triangle comes under federal control. This area (the apex of which is Parliament House, and which is bounded by Commonwealth and Kings Avenues and the northern shore of Lake Burley Griffin) contains Old and New Parliament House, the National Library, Science Centre, Art Gallery and Archives, the High Court and several major public service buildings (including Treasury and Department of Finance, and the Australian Electoral Commission offices). It is positioned close to the centre of the city, which has considerable implications for territory planning. The ACT government has no jurisdiction within this area, with the exception of the delivery of municipal services.
NSW surrounds the ACT on all sides. As such, the territory must retain working relations with that state to deal with a variety of cross-boundary issues (Canberra is increasingly a conurbation that includes the town of Queanbeyan in NSW). As the largest metropolitan area in its region, Canberrans also see large numbers of people from the surrounding state using its services.
In 2016, the two jurisdictions signed a Memorandum of Understanding on Regional Collaboration to provide a structure for the joint development and implementation of policy (including co-operative consultation with stakeholders) for the region.9 This builds on structures set up over recent decades, such as the NSW Cross Border Commissioner in 2012.
With a highly educated and comparatively wealthy population,10 the ACT is generally held to be socially progressive.11 It has led the way in recognising same-sex partnerships, waste minimisation policies and renewable energy initiatives. Greens members have been elected to the ACT parliament consistently since 1995. Except for one term (2004–08), the ACT has always had minority governments, dependent upon minor parties and independents for support in the Legislative Assembly to pass legislation and retain confidence. While tending to support Labor in government, the presence of the Greens has been significant in promoting socially and environmentally progressive policies, reflecting the ACT Greens’ origins in wider social justice issues.12
The ACT’s progressiveness in pursuit of public policy, however, has often been at loggerheads with more conservative federal administrations due to the subordinate position of territories in Australian federalism. The Australian Constitution is unambiguous in handing the right to make laws for the territories to the Commonwealth:
The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.13
Two recent policy disputes – one now resolved, one ongoing – illustrate this limit to territorial self-government.
In March 2004, the ACT proposed legislation to enable civil unions for same-sex couples. The legislation, which would permit civil unions to be conducted by marriage celebrants and would give same-sex couples the same legal rights and standing as heterosexual married couples, was vigorously opposed by the then federal government under Prime Minister John Howard. The attorney-general wrote to ACT Chief Minister Stanhope saying that, while the Commonwealth considered the status of same-sex relationships to be within the jurisdiction of the states and territories, it opposed any altering of the ‘status of marriage’.14 Stanhope responded by amending his proposed legislation so that civil unions could not be performed by marriage celebrants, but the federal parliament, fearing that the ACT’s legislation was a step towards legalising same-sex marriage, promptly blocked it by amending the Marriage Act 1961 (Cth) so that the definition of ‘marriage’ changed from ‘a union between two consenting adults’ to ‘a union between one man and one woman’.
In 2013, under Chief Minister Katy Gallagher, the ACT passed the Marriage Equality Bill 2013 (ACT) in defiance of the Commonwealth.15 At the time, the chief minister stated that:
We would prefer to see the federal parliament legislate for a nationally consistent scheme, but in the absence of this we will act for the people of the ACT. The Marriage Equality Bill 2013 will enable couples who are not able to marry under the Commonwealth Marriage Act 1961 to enter into marriage in the ACT. It will provide for solemnisation, eligibility, dissolution and annulment, regulatory requirements and notice of intention in relation to same-sex marriages.16
Attorney-General George Brandis announced that the Commonwealth would appeal in the High Court to have the legislation overturned, but the ACT’s Act came into force on 7 December 2013. Over 30 couples immediately married under the new law before, a week later, the High Court ruled in the Commonwealth’s favour on the grounds that the ACT law contradicted the federal marriage legislation and was therefore unconstitutional. While this ended the progressive experiment in same-sex marriage, the conflict did much to put the issue on the national agenda and placed pressure on successive national governments to expand access to marriage.
The Northern Territory paved the way for euthanasia laws in 1995, when it became the first Australian jurisdiction to legalise assisted suicide for the terminally ill. The ACT was to follow suit until the Commonwealth passed legislation overriding any move by either territory to pass euthanasia laws in 1997.
In December 2015, Liberal Democrat Senator David Leyonhjelm proposed the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015 (Cth), with senators of all parties being given a conscience vote. The purpose of the Bill was to repeal the Commonwealth’s prohibition of the territories legislating for assisted suicide. Leyonhjelm is an outspoken supporter of both the rights of the territories to determine their own laws, and the rights of the terminally ill to choose to die. The debate, therefore, was as much about territory rights as it was the rights of the terminally ill.
The Bill went to a second reading in 2016; however, it lapsed at prorogation of the parliament in the lead-up to the election and was not reinstated to the notices until later in 2016. It finally went to its second reading debate in February 2018. After several months of debate, it went to a vote on 14 August 2018. The Bill was expected to pass the Senate with a narrow margin; however, last minute lobbying on the part of those opposed to the Bill changed the votes of enough senators to see it defeated by two votes.
The government of the ACT is in a unique position, being the jurisdictional authority over the territory wherein resides the federal government. It faces a number of challenges: administering a territory whose core ‘industries’ are government and (predominantly publicly funded) education; providing municipal services for a rapidly growing city; providing health, education and public transit services for a growing population; maintaining a healthy and productive relationship with the NSW government and the local government authorities of the ‘Australian Capital Region’; and maintaining both its character and integrity while forging a good working relationship with the federal government, regardless of which political party is in power.
The expanded Assembly should ensure a better coverage of the issues and more equitable representation of the population. It is not known whether the ACT government will act on the second recommendation of the Reference Group on the Size of the Legislative Assembly and expand the Assembly to 35 members in the future.
Given the demographics and political inclination of the ACT’s population, it is likely that the ACT government will remain progressive in its policy outlook; however, the issue of territory rights remains unresolved.
ACT and NSW (2016). Australian Capital Territory and New South Wales memorandum of understanding for regional collaboration. https://www.cmtedd.act.gov.au/__data/assets/pdf_file/0005/1017347/MoU-for-Regional-Collaboration.pdf
ACT Legislative Assembly (2018). Minutes of proceedings, No. 67, Thursday 16 August. http://www.parliament.act.gov.au/__data/assets/word_doc/0018/.../MoP067F1.docx
—— (2015). Establishing self-government in the ACT. https://www.parliament.act.gov.au/Explore-your-Assembly/resources/fact-sheets/self-government
ACT Reference Group on the Size of the Legislative Assembly (2013). Review into the size of the Legislative Assembly. Canberra: ACT Government.
Australian Bureau of Statistics (ABS) (2017). 2016 Census QuickStats, Canberra. https://quickstats.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/CED801
—— (2012). Year book Australia. Cat. No. 1301.0. Canberra: ABS. https://bit.ly/IPeZJ3
Constitution of Australia (2010). Australia’s Constitution with overview and notes by the Australian government solicitor. Canberra: Parliamentary Education Office and Australian Government Solicitor.
Cooke, Nola (2016). Vale Bill Harris, who helped the ACT stand alone. Sydney Morning Herald, 27 October. https://www.smh.com.au/public-service/vale-bill-harris-who-helped-the-act-stand-alone-20161027-gsbynf.html
Fitzgerald, Julian (2006). Lobbying in Australia: you can’t expect to change anything if you don’t speak up. Dural, NSW: Rosenberg Publishing.
Halligan, John (2015). Governance in a hybrid system: designing and institutionalising the Australian Capital Territory. Policy Studies 36(1): 4–17. DOI: 10.1080/01442872.2014.981054
Halligan, John, and Roger Wettenhall, eds. (2000). Ten years of self-government: editors’ introduction. In A decade of self-government in the Australian Capital Territory. Canberra: University of Canberra.
Karvelas, Patricia (2013). ACT’s gay marriage test for Tony Abbott. The Australian, 13 September. https://www.theaustralian.com.au/national-affairs/election-2013/acts-gay-marriage-test-for-tony-abbott/news-story/7edc2761fb21fac6d38cf32d588749da
Miragliotta, Narelle (2012). Federalism, party organization and the Australian Greens. Australian Journal of Politics and History 58(1): 97–111. DOI: 10.1111/j.1467-8497.2012.01626.x
Stewart, Jenny (2014). Who’s the greenest of us all? Windfarms, light rail and the ACT government. Canberra Times, 30 March. https://www.canberratimes.com.au/opinion/whos-the-greenest-of-us-all-wind-farms-light-rail-and-the-act-government-20140328-zqnx3.html
Wettenhall, Roger, and Edward Warrington (1998). The external relations of a small quasi-state within a federal system: the case of the Australian Capital Territory. Public Administration and Development 18(2): 123–39. DOI: 10.1002/(SICI)1099-162X(199805)18:2<123::AID-PAD3>3.0.CO;2-P
Zanghellini, Aleardo (2007). Marriage and civil unions: legal and moral questions. Federal Law Review 35(2): 265–98. DOI: 10.22145/flr.35.2.4
Dr Robin Tennant-Wood lectured in political science and public policy at the University of Canberra and, prior to that, worked in public policy development in the Australian public service and worked in the community sector as executive director of a non-government organisation. She has written and taught on Australian politics and electoral politics, in particular, the politics and government of the ACT. Dr Tennant-Wood has also been a journalist for Fairfax at the Braidwood Times and currently researches and writes independently.
1 Halligan 2015, 6.
2 Fitzgerald 2006.
3 ABS 2012.
4 Halligan and Wettenhall 2000.
5 Halligan 2015.
6 Cooke 2016.
7 ACT Reference Group on the Size of the Legislative Assembly 2013.
8 Wettenhall and Warrington 1998.
9 ACT and NSW 2016.
10 ABS 2017.
11 Stewart 2014.
12 Miragliotta 2012.
13 Constitution of Australia 2010, section 122.
14 Zanghellini 2007.
15 Karvelas 2013.
16 Gallagher, quoted in Karvelas 2013.