Section 122 - government of territories
Under section 122 of the Australian Constitution, the federal Parliament can make laws for any Australian territory. This includes passing laws to allow the territories to be self-governing – in other words, to have their own parliaments and make their own laws. However, section 122 also allows the federal Parliament to override any laws made by territory parliaments.
Until they were granted self-government, the Northern Territory (NT) and the Australian Capital Territory (ACT) were administered, or managed, by the federal government. Federal Parliament gave the territories self-government by passing the Northern Territory (Self-Government) Act 1978 and the Australian Capital Territory (Self-Government) Act 1988.
The federal Parliament has only used its power under section 122 to override laws made by the territories on a few occasions. Each time, the law in question was considered controversial and had generated much, often extremely divided, debate within the wider Australian community.
Parliament revokes NT euthanasia law
In 1995, the Northern Territory Legislative Assembly passed a law to allow terminally ill people to end their lives. The Rights of the Terminally Ill Act 1995 made medically assisted euthanasia legal. Under the law, if a doctor helped a terminally ill patient commit suicide they would not be prosecuted.
A number of conditions had to be met before a patient could go ahead with the procedure. For example, they had to state their wishes in writing. There was also a cooling-off period. These conditions were included in the Act to make sure the patient was certain they wanted to end their life.
The first such law to be passed in Australia, it came into effect in 1996. That same year, the Hon Kevin Andrews MP introduced the Euthanasia Laws Bill 1996 in the House of Representatives. It amended, or changed, the self-government Acts of the NT, ACT and Norfolk Island to ban them from making laws to allow euthanasia. It also overrode the existing NT law.
The government and opposition parties allowed their members a free, or conscious, vote on the bill. This meant members were allowed to vote according to their own beliefs, instead of voting with their party. The bill passed the House of Representatives 91 to 38 and the Senate by a narrower margin of 38 to 34. In March 1997 it became a law.
ACT Civil Unions Act overruled
In 2006, the ACT Legislative Assembly passed a bill to allow two people, including same-sex couples, to enter into a civil union, or partnership, with the same legal rights under ACT law as marriage. The Civil Unions Act 2006 was intended to provide equality, firstly for couples who preferred not to marry, and secondly for same-sex couples who could not get married under the Commonwealth Marriage Act 1961. This federal law defines marriage as being between a man and a woman.
The federal government opposed the Civil Unions Act 2006 on the grounds it undermined the unique status of marriage. At the time, the ACT Self-Government Act included a provision permitting the Governor-General to disallow, or overturn, a law passed by the ACT Legislative Assembly within six months of it coming into effect. On 13 June 2006, the Governor-General, acting on the advice of the Cabinet (the Prime Minister and top-level ministers), disallowed the Civil Unions Act 2006. Jon Stanhope, then Chief Minister of the ACT, claimed it was the first time an unelected representative of the Queen had overturned a law made by any Australian parliament.
Parliament removes executive veto
In 2011, the federal Parliament passed a private senator's bill to amend the ACT and Northern Territory self-government laws. The Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Act 2011 removed the power of the Governor-General to overturn or recommend amendments to territory laws. This power was referred to as the 'executive veto' because the Governor-General acts on the advice of the federal executive government.
Senator Bob Brown, who introduced the bill, noted the executive veto meant 'with the stroke of a pen a minister can override the outcome of a deliberated vote following a debate of the elected representatives of the assemblies either in Canberra, in relation to the ACT, or in Darwin, in relation to the Northern Territory'.
Under this Act, territory laws can now only be disallowed or changed through a vote of federal Parliament, as defined in section 122 of the Constitution. This means individual ministers and the Cabinet can no longer ask the Governor-General to override territory laws.
ACT same-sex marriage law found invalid
In October 2013, the ACT Legislative Assembly passed a law to allow same-sex marriage. The federal government did not use section 122 to overturn the law. Rather, it challenged the law in the High Court on the grounds it was inconsistent with the Australian Constitution and existing federal law.
Section 51 of the Constitution gives federal Parliament the power to make uniform national laws about marriage. However, the ACT government argued its law – the Marriage Equality (Same Sex) Act 2013 – was not inconsistent with federal law because it covered same-sex marriage, whereas the federal Marriage Act defines marriage as being between a man and a woman.
In December 2013, the High Court decided the ACT law could not 'operate concurrently with the federal Marriage Act 1961'. It found federal Parliament's power to make laws about marriage also covered same-sex marriage, even if the Parliament chose not to make such laws. The Court said 'under the Constitution and federal law as it now stands, whether same-sex marriage should be provided for by law is a matter for the Federal Parliament'. The High Court ruling also prevents state parliaments from making laws about same-sex marriage.