As Immigration Minister Alex Hawke ponders whether to use his power to override a Federal Court ruling over Novak Djokovic’s visa, it raises a larger question: what is the point of procedure if the federal government can do what it wants anyway?
The Coalition, despite masquerading for “can-do” capitalism and government that largely stays out of people’s lives, is quick to step in when there’s a decision it doesn’t like. But it’s not just the Liberals and Nationals. Labor has used its veto powers too.
Research grants
On Christmas Eve, acting Education Minister Stuart Robert vetoed six projects recommended for funding by the Australian Research Council. Applying for ARC funding is onerous. An application must be submitted and assessed by relevant scholars, ranked, and then appraised by selection and eligibility committees made up of experts.
All the canned projects were in humanities, ranging from studies on how climate shaped the Elizabethan theatre, memory politics in modern China and narratives under Chinese President Xi Jinping. Robert said they did “not demonstrate value for taxpayers’ money nor contribute to the national interest”.
The decision has outraged many prominent academics who have added their names to a petition to reverse Robert’s decision. Australian National University senior lecturer in English Julieanne Lamond called the veto a “shocking waste of time and money” that could lead to researchers losing their jobs.
Four years ago former education minister Simon Birmingham knocked back 11 humanities applications recommended by the ARC.
Overriding official recommendations based on expert assessments and a rigorous elimination process to fund projects better aligned with the government’s objectives (i.e. scoring votes) is not new. It was used in a series of pork-barrelling controversies, ranging from the Nats’ Bridget McKenzie’s sports rorts to Labor’s 1993 whiteboard saga.
International agreements
In December 2020 the government passed foreign veto laws, giving the foreign affairs minister the power to cancel agreements with overseas governments made by states, territories, councils — and universities.
Universities must report current and future agreements with foreign government bodies, which include agreements made with foreign universities controlled by governments. The legislation has been criticised as being too complex to be applied to universities, and experts warned the new powers should be used carefully.
There were major concerns 13 Confucius Institutes developed in partnership with Chinese universities would be in jeopardy, but so far just one has shut down due to funding cuts.
By April 2021, the powers had been used by Foreign Affairs Minister Marise Payne to cancel two deals between the Victorian government and China’s controversial Belt and Road Initiative agreement.
Same-sex marriage
The ACT government was making moves to legalise same-sex marriage well before the expensive and controversial 2017 national mail plebiscite, attempting to pass civil unions and marriage legislation in 2007 and 2011. Both times it was shut down, either by the threat of veto or veto, by Labor leaders using Commonwealth veto powers.
This fight against territories’ rights centred around human rights issues; in 1997 the Howard government vetoed the Northern Territory’s euthanasia legislation.
Commonwealth veto powers were slammed as being “undemocratic, 19th-century colonial-style” powers by former ACT attorney-general Simon Corbell and were removed in 2011 after a push from the Greens, but territory law can still be contested through a vote in federal Parliament.
NT infrastructure
The Northern Australia Infrastructure Facility Act 2016 is federal legislation to provide cash to help the Northern Territory develop its economic infrastructure. As it’s the government providing the money, the government can decide where it should or shouldn’t go.
In May last year, then-resources minister Keith Pitt vetoed a decision by the expert Northern Australia Infrastructure Facility to provide $280 million in government funding to a wind and battery hub in northern Queensland. He said it would be “inconsistent” with the government’s policies, i.e. inducing climate change.
What protections are there?
When it comes to cash, the government has the final say on where taxpayers’ dollars are spent. But since the overhaul of the Commonwealth veto powers, states and territories have largely held on to their autonomy. Despite premiers clashing with Prime Minister Scott Morrison, he can’t overrule a premier’s decision without a federal Parliament vote (although it can persuade them behind closed doors in the national cabinet).
Should the federal government keep its nose out of territories’ laws? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name if you would like to be considered for publication in Crikey’s Your Say column. We reserve the right to edit for length and clarity.
LNP DGAF Never Have Never Will
You don’t differentiate between individual veto powers held by Minsters, and which arise from legislation, and the power of the Cwlth Parliament to override territory legislation, which arises from the Constitution. You should have stuck to outlining egregious examples of the former, instead of muddying the waters with the discussion of the Cwlth override of the ACT same sex marriage proposal.
If you had understood the history, you might also have made appreciated the significance of the Cwlth parliament overriding the NT’s euthanasia legislation in the early Howard years (1997 from memory).
Absolutely, there is a world of difference between the powers of the Commonwealth over Territories and the powers that Parliaments haves given ministers to use discretion or directions. Parliaments are always far too ready to hand out such power and of course it is abused. If ministers can really be left to act on their own impulses and whims without oversight, and permitted to make decisions without being bound by specific prescriptive laws, then there is no need for a parliament at all.
We would be far better governed if we had parliamentarians who were jealous of the powers and role of parliament and refused on principle to give ministers such freedom. Unfortunately our political system ensures MPs are far more loyal to their party than to parliament.
Too true “…MPs are far more loyal to their party than to parliament.” which is contrary to the
Constitution which makes it abundantly plain that MP are responsible to the constituents, first, second & finally.
Political parties are private associations – they are no more constitutional than a philately or pigeon fanciers club – which is why they can make it a blood rule that one must adhere to the party line at all times or kiss preselection or renomination good bye.
There is no option of individual conscience or responsibility.
“If you had understood the history, you might also have made appreciated the significance of the Cwlth parliament overriding the NT’s euthanasia legislation in the early Howard years (1997 from memory).”
In my memory, and I actually lived in the Territory and supported the legislation, the proposal had overwhelming majority community support both in the Territory and nationally. I was witness, too, to the holy men in control of various religions sending their emissaries into indigenous communities to lie about the nature and intent of the legislation -totally false stories being told that if certain people went to hospital (and this was into communities with a level of fear about hospitals) and the doctors didn’t like you ,you would just be made to disappear.
Behind all this were the religious fanatics in the Howard government, and to them, and a bunch of braying bishops, and that element of the medical industry unable (or more likely unwilling) to differentiate “extending life” and “prolonging misery” Howard handed control of the situation. He even took no account of the way some of our leading religious bosses were becoming renowned for concealing serious crimes against children and in many cases facilitated them by endlessly transferring the perpetrators to greener pastures.
In that single stroke, Howard was able to cancel one of the most compassionate laws ever passed by an Australian parliament, increase the power of those who were already gaining renown for the concealment of serious offences against children, and prevent those rudimentary options from evolving into something more like what is now available in more advanced countries such as The Netherlands and Belgium. Even Colombia, with its vast majority catholic population, is ahead of us when it comes to treatment of the sick and dying.
Says much about Australia and the LNP being influenced by US radical right libertarians to denigrate and dog whistle universities, research, collaboration, curricula, science and empowerment, like happens in Turkey, Russia, Hungary, Poland etc.; representing a return to 19-20thC authoritarianism and class society with unempowered electors giving carte blanche freedoms to elites and oligarchs.
You mentioned the ALP using override powers. The only one I could think of off-hand, (others might have better recall), was the use of the foreign affairs powers to prevent the construction of the Franklin below Gordon dam in Tassie. Of course this was some little while ago, but it certainly made a noise at the time. Mind you, I think in retrospect most of us a glad the dam wasn’t built and the wild rivers allowed to flow free (ish) for a bit longer.
Just to add my voice to those who have pointed out the inadequacy of the “analysis” offerd by Amber Schultz on this issue (they are correct) and to add some further realities. The lack of respect for politics and democracy is often voiced. But making politicians directly and observably accountable for decisions they make is a qualitative feature of any functioning democracy. The idea that any body of so-called independent experts can be relied on to invariably produce good decisions is a problematic “faith” belied both conceptually and historically. Do we honestly believe that the Industries Assoistance Commission (as was) was genuinely independent even though made of of experts? The more decisions are recognised as being political rather than technocratic, then the more chance we have of revitalising democracy.
Difficult to agree with you when we have politicians who sprout drivel such as their belief in sacred bird pictures coming down from heaven to guide them.