With the border between NSW and the ACT set to change for the first time in more than 110 years, allowing the ACT to expand and make the new Ginninderra development part of the ACT rather than NSW, Andrew Barr affirmed this as correcting an historic anomaly: "For one reason or another, a straight line was drawn through the middle of a paddock here and all we're seeking to do is ... move the border to a river corridor effectively for this parcel of land that the territory owns."
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But for individuals buying houses built to assist with a dire housing crisis another anomaly will continue to exist. If Ginninderra remained part of NSW, a person living in NSW on one side of that paddock would have more democratic rights than their neighbours on the other side of the paddock in the ACT. The person buying land in the ACT rather than NSW is caught by section 122 of the Australian constitution - with its legislative override of ACT democracy, despite self-representation for the ACT having been legislated in 1988.
Historically, before self-government, the federal minister for territories made all the decisions about the ACT and so if the border change had occurred then, it would have been a choice of living with only the federal government's power over their housing, as opposed to living a 'normal' federal experience of having NSW and the federal government influencing their lives.
However, since 1988, the locally-elected ACT Legislative Assembly is responsible for making laws for the ACT and it is the ACT government negotiating with NSW over the terms of the change of the borders. Section 122 enabled the federal government to empower the ACT to become more like a state in governing for its own territory and making its own laws about housing, education and health. Equally, section 122 empowered Coalition frontbencher Kevin Andrews to champion the Euthanasia Laws Act 1997, which reduced the power of the ACT and Northern Territory assemblies to make laws permitting doctors to help a terminally ill person end their life.
The Restoring Territory Rights Bill 2022, passed in the House on August 3, and soon to continue its deliberative process through the Senate, when the Senate returns after the recess for the Queen's passing, is designed to reverse that legislation. If it passes, as looks likely but not certain, it will restore the right of territorians to equality of self-government - at least in this respect, and for the time being only, given the threat of override is always hanging.
The road to a more democratic representation for residents in the ACT and the NT began with the Senate (Representation of Territories) Act 1973, passed in August 1974, which allowed for two senators each from the Northern Territory and the ACT in the 1975 and subsequent elections. Each state was represented by 10 senators (formerly six), a number that increased to 12 in 1983.
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Comparisons make the anomaly obvious. Tasmania, with a population only slightly more than the ACT, has 12 senators while the ACT and the NT are still stuck on two. Back in 1975, the NT's population was around 100,000; by 2021, according to the census, it was 233,000. Over the same period the ACT's population has grown from 200,400 to more than 454,000. In each state, population growth over those 46 years has merited two more senators, but each territory's representation has stayed at two.
Currently, section 40 of the Commonwealth Electoral Act allows the number of senators in the ACT or the NT to increase beyond two only when the number of House of Representatives seats in the jurisdiction grows to six or more. With the ACT's House representation now on three, there is little prospect of this. (Tasmania, with 402,000 electors at this year's election to the ACT's 314,329, has five lower house seats.)
But the Commonwealth Electoral Act can be amended by the parliament under section 122 of the constitution. No constitutional change is necessary. Doing so would open the Commonwealth's ear to the ring of Canberra and NT residents' views about decisions that impact differentially on the territories. It would also enable smaller parties and independents the same opportunities to reflect the diversity of the territories' citizenry as they do elsewhere in the country.
Increased representation would also make a bill like the Euthanasia Laws Act 1997 much less likely. Under the Senate's proportional representation system, a candidate currently needs 33 per cent of the vote to be elected in the ACT or NT. Increasing the number of senators to four, but retaining the current three-year terms, would reduce that quota to 20 per cent. This is still a significant threshold, but it would give smaller parties and independents a real chance at each election of obtaining representation.
The 2022 federal election's serious contest for the ACT's Senate places, with the election of an independent candidate, David Pocock, means that the ACT's needs are for the first time taken seriously by all parties. Labor's Restoring Territory Rights Bill 2022 is the striking result.
A simple doubling of territory representation in the Senate is nowhere near as dramatic as a proposal for the ACT or the NT to become states, which would require constitutional change. It is a modest change to legislation that would have a similar practical impact while helping restore democracy in our federal system and ensuring the new residents of Ginninderra are not second-class citizens by buying their house in the ACT rather than in NSW.
- Kim Rubenstein is a Professor at the University of Canberra.
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