Arnold, Bruce Baer --- "David Mossop, The Constitution of the Australian Capital Territory (Federation Press, 2021)" [2021] CanLawRw 15; (2021) 18(2) Canberra Law Review 94

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Review: David Mossop, The Constitution of the Australian Capital Territory (Federation Press, 2021)

Bruce Baer Arnold^[*]

The Australian Capital Territory is a quirk of federation, an artefact from the era of whalebone corsets and telegram boys in which the parochial squabble between New South Wales and Victoria about which jurisdiction would host the national capital was resolved with the answer ‘neither’. It is a jurisdiction that critics dismiss as an over-indulged metropolitan council, a location for bureaucrats who did not quite cut it in the Australian Public Service, a domain of quinoa puddings and feel-good government policies that on occasion are a matter of woke self-congratulation. Critics can be unkind. The Constitution of the Australian Capital Territory (Federation Press, 2021) by Justice David Mossop of the ACT Supreme Court offers a different and welcome perspective that is of value for scholars, practitioners and policy-makers within and outside the Territory.^[1] The 258 page book complements authoritative studies of other jurisdictions, for example Twomey’s The Constitution of New South Wales and Harris’ A New Constitution for Australia.^[2]

In explaining the constitutional arrangements for the government of the Australian Capital Territory Mossop offers an outline of the Commonwealth enactments that make up the constitution of the Territory, most notably the Australian Capital Territory (Self-Government) Act 1988 (Cth). The work covers the establishment of the Territory and the history of its government since 1911, addressing the granting of self-government in 1989 (a grant not unanimously applauded by ACT residents accustomed to Commonwealth support), 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 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.

The book is structured as nine chapters dealing with the constitutional development of the Territory, the Commonwealth’s Territories Power, Self-government, the Legislative Assembly, Legislative Power, Finance, Executive Power, Land management and Judicial Power. The emphasis is on statute and case law; there is sparse reference to non-legal literature.

The first chapter considers the history of s 125 of the national Constitution, the determination of the location of the seat of government, the acceptance of the Territory and its naming, questions of land tenure (misread by some Canberrans as a perpetual lease), administration of the Territory from 1911 to 1989, and arguments regarding statehood. The latter resurface periodically in the ACT and Northern Territory, most recently in the 2021 Ensuring Northern Territory Rights Bill 2021 that sought to ‘reduce the level of Commonwealth interference with laws of the Northern Territory related to acquisition of property on just terms, voluntary assisted dying and powers in relation to the hearing and determining of employment disputes’. In a submission to the Senate Legal and Constitutional Affairs Legislation Committee considering that Bill, George Williams noted that the Australian constitution 'reserves rights and privileges to the states and Australians who live there, while permitting these to be denied to Territorians':

This entrenched discrimination is made all the worse by the special powers of the Commonwealth to intervene in territory affairs. Self-government in the ACT and the Northern Territory depends upon the favour of the Commonwealth. It can at any time remove their right to be governed by a local assembly and can return either to direct federal rule.

Chapter Two of the book offers a more detailed discussion of that Territories Power, identifying over a century of territories cases before considering s 122 of the Constitution (a plenary power) and the status of the Australian Capital Territory as part of “the Commonwealth” for the purposes of s 51. Mossop discusses when are laws made under s 122, the relationship between s 122 and other provisions of the Constitution, and implied restrictions on the s 122 power. The third chapter covers the move to self-government for the Territory, identifying the self-government legislation, changes to the structure of self-government since 1989, the Territory as a “body politic under the Crown”, the Crown’s role, the transfer of laws at self-government and the relationship to the Jervis Bay Territory.

Chapter Four considers the ACT Legislative Assembly., discussing that legislature’s basic structure, elections and dissolution, the formation of a government, deliberative procedure, the process for making laws, privileges and immunities. Chapter Five addresses Legislative Power, with a discussion of “peace, order and good government”, limitations on power from the Constitution, express exclusions from legislative power in the Self-Government Act, inconsistency between Commonwealth and Territory laws, the extent to which the Commonwealth is bound by Territory laws, laws mandated by the self-government legislation, powers retained in the Seat of Government (Administration) Act 1910 (Cth), the relationship between Territory and State laws, and ‘Manner and Form’ requirements.

Through a neoliberal lens government is a matter of getting and spending money. Mossop’s sixth chapter deals with Finance, encompassing the public moneys of the Territory, the withdrawal of public moneys and appropriations, financial relations with the Commonwealth, borrowing and unauthorised payments. Chapter Seven concerns the Territory Executive. The chapter analyses statute and case law regarding what is the Executive, its composition, the Cabinet, the Executive’s powers and responsibility, the Crown in right of the Territory, and the relationship with executive power of the Commonwealth under s 61 of the Constitution.

The penultimate chapter looks at law regarding land management, with a valuable introduction to the Planning & Land Management Act, the National Capital Plan and Territory Plan, before questions about the Canberra Airport and Googong Dam. The final chapter concerns the Judicial Power. It offers an introduction to the history of judicial power in the ACT, the constitutional position of Territory courts, s 48A of the Self-Government Act, the tenure and removal of judges, and the separation of powers.

Overall The Constitution of the Australian Capital Territory is a reference book that is likely to feature on the shelves of all ACT law forms and might usefully be embraced by political candidates and their advisors, particularly those whose enthusiasm for reform (or for a media opportunity) outleaps their understanding of what is constitutionally possible. A major critique of the ACT as one of the three ‘human rights’ jurisdictions and a work on integrity mechanisms such as the Territory’s freedom of information regime remains to be written.

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^[*] Associate Professor Dr Bruce Baer Arnold teaches Equity and Technology Law at the University of Canberra.

^[1] Justice Mossop’s ‘The Associate Judge of the Supreme Court of the Australian Capital Territory’ appeared in (2020) 17(2) Canberra Law Review 18.

^[2] Annew Twomey, The Constitution of New South Wales (Federation Press, 2004) and Bede Harris, A New Constitution For Australia (Cavendish, 2002).