The Constitution of the Australian Capital Territory provides a detailed reference work for those who need to understand the constitutional arrangements that exist for the government of the Australian Capital Territory. It provides an outline and explanation of the Commonwealth laws which make up the constitution of the Australian Capital Territory, most importantly the Australian Capital Territory (Self-Government) Act 1988 (Cth).
The book also covers:
- the establishment of the Territory and the history of its government since 1911
- a detailed examination of the Commonwealth’s constitutional power to make laws for the government of the Territory and the extent to which the power in s 122 of the Constitution is qualified by other provisions of the Constitution
- the granting of self-government in 1989
- the constitutional framework for the Legislative Assembly and the power of the Assembly to make laws and the scope of executive and judicial power in the Territory, and
- the division of responsibilities for land management in the Territory between the Commonwealth and Territory governments.
Preface
1. The constitutional development of the Territory
1.1 Introduction
1.2 The history of s 125 of the Constitution
1.3 Determining the location of the seat of government
1.4 Surrender and acceptance of the Territory
1.5 Land tenure in the Territory
1.6 Name of the Territory
1.7 Government of the Territory 1911-1989
1.8 The Territory and statehood
2. The territories power
2.1 Introduction
2.2 A century of territories cases
2.3 Section 122 – a plenary power
2.4 Section 122 laws may operate outside a territory
2.5 The Australian Capital Territory is part of “the Commonwealth” for the purposes of s 51 of the Constitution
2.6 When are laws made under s 122?
2.7 The relationship between s 122 and other provisions of the Constitution
2.8 Implied restrictions on the s 122 power
3. Self-government
3.1 Introduction
3.2 The self-government legislation
3.3 Changes to the structure of self-government since 1989
3.4 The Territory as a “body politic under the Crown”
3.5 The role of the Crown
3.6 The transfer of laws at self-government
3.7 Relationship to the Jervis Bay Territory
4. The Legislative Assembly
4.1 Introduction
4.2 Basic structure of the Assembly
4.3 Election of members
4.4 Formation of a government
4.5 Procedure of the Assembly
4.6 Process for making laws
4.7 Powers, privileges and immunities of the Assembly
4.8 Dissolution of the Assembly
5. Legislative Power
5.1 Introduction
5.2 Section 22 “peace, order and good government”
5.3 No power to amend constitution
5.4 Limitations on power from the Constitution
5.5 Express exclusions from legislative power in the Self-Government Act
5.6 Inconsistency between Commonwealth and Territory laws
5.7 Invalidity and severance
5.8 No general power of disallowance of Territory laws
5.9 The extent to which the Commonwealth is bound by Territory laws
5.10 Laws mandated by the self-government legislation
5.11 Manner and form requirements
5.12 Powers retained in the Seat of Government (Administration) Act 1910 (Cth)
5.13 Territorial limits on Territory laws
5.14 Relationship between Territory and State laws
6. Finance
6.1 Introduction
6.2 Public moneys of the Territory
6.3 Withdrawal of public moneys
6.4 Appropriations
6.5 Financial relations with the Commonwealth
6.6 Borrowing
6.7 Money votes
6.8 Unauthorised payments
7. Executive Power
7.1 Introduction
7.2 What is the Executive?
7.3 Composition of the Executive
7.4 The Executive and the Cabinet
7.5 Powers of the Executive
7.6 Responsibility for the exercise of executive power
7.7 Content of executive power
7.8 The Crown in right of the Territory
7.9 Relationship with executive power of the Commonwealth under s 61 of the Constitution
8. Land management
8.1 Introduction
8.2 Overview of the Planning and Land Management Act
8.3 Section 29
8.4 National Capital Plan
8.5 Territory Plan
8.6 Canberra Airport
8.7 Googong Dam
9. Judicial Power
9.1 Introduction
9.2 History of judicial power in the Territory
9.3 Constitutional position of Territory courts
9.4 Section 48A of the Self-Government Act
9.5 Tenure and removal of judges
9.6 Separation of powers
9.7 Territorial limits on jurisdiction
Appendix
As this review is written, in the Territory established to house the Parliament of the Commonwealth, the movements of Members apparently are being limited by orders of the Chief Health Officer, not of the Commonwealth, but of the Territory. Yet unless specified in regulations made under the Australian Capital Territory (Self-Government) Act 1988 (Cth) (‘Self-Government Act’), an enactment of the Territory Legislative Assembly does not bind the polity established by the Constitution. That is the effect of s 27 of that Act.
The appearance of this book thus is particularly welcome. The author is a Judge of the Supreme Court of the Territory who has had an interest in the subject since he served as Associate of McHugh J in 1995–96. He published shortly thereafter an article doubting the majority outcome in Capital Duplicators Pty Ltd v Australian Capital Territory, that s 90 of the Constitution denied power of the Legislative Assembly to impose duties of excise.
WMC Gummow, Former Justice of the High Court of Australia, Australian Bar Review, June [2022] vol 51, no 2
Overall The Constitution of the Australian Capital Territory is a reference book that is likely to feature on the shelves of all ACT law firms and might usefully be embraced by political candidates and their advisors…
Bruce Baer Arnold, Canberra Law Review, Vol 18 No.2 (2021)
Space here does not permit of more detailed discussions on the many ways in which this book provides useful information, not only for legal practitioners, but for scholars of constitutionalism and for all concerned members of the public. Suffice it to say that what the author has written about notable matters such as: the relationship between s 122 and other provisions of the Constitution including the acquisition of property on just terms; the important freedoms of movement and of religion; the implied freedoms of political communication; access to the Seat of Government; on trial by jury; and on the Crown and upon Prerogatives; are required reading not only for lawyers, whether resident in the Territory or not, but will also be found illuminating by other general readers. The book comes in the usual high standard of production by Federation Press; and the publisher’s very name reminds us of this Territory’s national context.
Dr Douglas Hassall, ALJ, 96 (2020)
An overview of the development in Canberra of the system for holding Crown leases may be found in The Constitution of the Australian Capital Territory, where Justice David Mossop (writing extra-judicially), has explained the interaction between the key Territory and Commonwealth planning instruments, respectively the “Territory Plan”, and the “National Capital Plan”: see 12-14, 169-172, and 181. A specific explanation of the concept of “Designated Areas” in the Territory is also included: 180.
McWilliam AJ, Canberra Services Club Ltd v Minister for Planning and Land Management [2022] ACTSC 5
This book is an essential tool for practising lawyers. I guarantee that when you start to read it you won’t put it down until you have finished the last chapter.
John Purnell SC, ACT Bar Bulletin August Edition 2021
Certainly, in an epoch now when there is, both in Australia and worldwide, very great public concern about the use and also the misuse of powers by Governments, books like this are important in indicating the many issues which still remain to be resolved satisfactorily by the Courts.
Dr Doug Hassall, Canberra Chambers, ACT Bar Bulletin August Edition 2021
