Australian Capital Territory (Self-Government) Act 1988

The Self-Government Act directly structures the legal position of every person and body within the Territory. Electors of the Territory—defined as persons entitled to vote at a House of Representatives election for the ACT (s 3 and s 67C)—are the foundational constituency. They elect the 17 or more members of the Assembly (s 8(2)), whose term runs from declaration of the poll until the next polling day (s 10). Those members in turn elect the Chief Minister (s 40), who appoints Ministers (s 41) and allocates portfolios (s 43). Thus every ACT resident who is enrolled is both a voter and, indirectly, the principal affected by laws the Assembly passes.

The Act’s definitions of “Territory” (s 3) distinguish the geographical sense from the body politic; the latter is the legal entity that holds rights, incurs liabilities and employs public servants. Territory authorities—whether corporate or not—established by enactment or by the Executive (s 3) are subject to the Executive’s direction and to the financial controls in Part VII. The Chief Magistrate, Magistrates and Supreme Court judicial officers are brought within a protected removal regime (ss 48C–48D) that any future judicial commission legislation must observe.

Commonwealth officers remain affected in defined ways. The Commonwealth Minister (the Minister administering the Act, with the Acts Interpretation Act 1901 meaning) may convene Assembly meetings if the Presiding Officer cannot (s 17(3)), specify election dates after dissolution (s 16(2)(b)), and exercise residual Executive powers if all Ministerial offices become vacant and essential services are at risk (s 47). The Governor-General may dissolve the Assembly by Proclamation (s 16(7)) and must cause a statement of reasons to be gazetted and tabled (s 16(8)). The Finance Minister (defined by reference to the Public Governance, Performance and Accountability Act 2013) may lend money to the Territory or Territory authorities on terms determined in writing (s 60).

Legal practitioners, courts and tribunals must take judicial notice of all enactments and subordinate laws (s 30). The Executive is obliged to publish and make available copies of those laws (s 31). Public servants, particularly the Chief Executive of the Chief Minister’s Department, are disqualified from appointment as dissolution Commissioner (s 16(9)–(10)).

In short, the statute simultaneously empowers and constrains the entire machinery of ACT government while preserving Commonwealth override on enumerated subjects.

The Self-Government Act creates a web of interlocking duties and rights. Members of the Assembly owe duties of attendance (s 14(1)(b)), avoidance of financial conflicts (s 15(1)), and fidelity to the oath or affirmation in Schedule 1 (s 9). They enjoy the same privileges and immunities as members of the House of Representatives until the Assembly legislates otherwise, but may not imprison or fine any person (s 24). A member who acquires a direct or indirect interest in a Territory contract must not participate in debate or vote on any related matter; breach does not, however, invalidate Assembly action (s 15(2)).

The Chief Minister’s duties include appointing Ministers (s 41(1)), allocating portfolios and publishing the allocations (s 43), and ensuring that only Ministers propose appropriation bills (s 65). The Chief Minister may be removed by a properly constituted no-confidence resolution (s 19), triggering an obligation on the Assembly to elect a replacement (s 40(3)). If no replacement is elected within 30 days and the Governor-General does not dissolve the Assembly, a general election must be called (s 48).

The Executive’s key duty is to govern the matters in Schedule 4, execute enactments and exercise relevant prerogatives (s 37). Ministers administer allocated matters and may be dismissed at will by the Chief Minister (s 41(3)). The Deputy Chief Minister must act during vacancy or absence but may not dismiss Ministers (s 44(3)).

Judicial officers have a right to security of tenure: removal is possible only after a judicial commission process, Assembly determination and Executive instrument (s 48D). An enactment changing retirement age cannot apply to a sitting officer without written consent (s 48B).

Electors possess a right to vote at general elections if enrolled and otherwise qualified for a House of Representatives election (s 67C). Electoral enactments must provide for compulsory enrolment, periodic redistributions (no more than six years apart) and quota tolerances of ±10 per cent (ss 67B, 67D).

The Territory itself has a right to be treated financially on the same basis as the States, subject to national-capital considerations (s 59(1)), and is protected from bearing the cost of Commonwealth powers listed in s 23 or Schedule 5 laws (s 59(2)). Conversely, the Crown in right of the Commonwealth is not bound by Territory enactments except as provided by regulation (s 27).

The Self-Government Act is notably light on direct criminal sanctions; it is primarily structural. Enforcement of its rules is therefore largely political or constitutional. A member who breaches the conflict-of-interest rule in s 15(1) commits a contempt of the Assembly, but the Act expressly states that the contravention does not invalidate anything done by the Assembly. Disqualification under s 14(1) operates automatically: the member vacates office. There is no statutory fine or imprisonment; the Assembly’s privileges are capped so that it cannot itself impose such sanctions (s 24(4)).

Breach of the financial provisions carries indirect consequences. Spending public money without enactment authorisation is unlawful (s 58(1)), although the dissolution Commissioner may do so with Governor-General authority (s 16(4)(b)). The Executive’s obligation to publish laws (s 31) is expressed as a duty; failure would expose the Chief Minister to political accountability and potentially to judicial review.

The most coercive mechanism is the Governor-General’s power under s 16 to dissolve the Assembly on the grounds of incapacity or grossly improper conduct. That power is exercised by Proclamation and is accompanied by mandatory publication of reasons and tabling in both Houses of the Commonwealth Parliament (s 16(8)). The 30-day default-election trigger in s 48 after a no-confidence motion also operates automatically if the statutory conditions are met.

Judicial removal under s 48D is tightly prescribed; any attempt to remove a judicial officer outside that process would be void. The validation clause in s 70 protects acts performed in office from collateral attack on technical defects, thereby limiting the practical enforcement of some procedural rules.

Subordinate laws and electoral enactments made under the Act carry whatever penalties their own provisions authorise. The Self-Government Act itself therefore functions more as a constitutional framework whose “penalties” are loss of office, dissolution, or invalidity of the impugned act rather than monetary fines.

The Self-Government Act is both a Commonwealth statute and the constitutive instrument for Territory law-making. Section 28 provides the inconsistency rule: an enactment has no effect to the extent that it is inconsistent with a Commonwealth law (other than an enactment or subordinate law) or an instrument made under such a law, but operates concurrently where possible. The note to s 28 expressly refers to ss 29 and 40 of the Fair Work Act 2009, confirming that Territory laws are subject to the ordinary federal industrial-relations hierarchy.

Section 27 provides that an enactment does not bind the Crown in right of the Commonwealth except as prescribed by regulation. Section 69A supplies the reverse: Commonwealth Acts that bind the States automatically bind the Territory unless the Commonwealth Act provides otherwise.

Pre-self-government laws are converted into enactments by s 34. Imperial Acts, New South Wales Acts and certain Ordinances listed in Schedules 2 and 5 became enactments on the commencing day and may be amended or repealed by the Assembly, subject to the exclusions in Schedule 5. Section 34(9) expressly preserves the Assembly’s power to legislate with respect to the common law.

The Act cross-references the Acts Interpretation Act 1901 and the Legislation Act 2003 but disapplies certain commencement and notification rules to Territory enactments (s 33). Privileges of the Assembly are pegged to those of the House of Representatives until altered by Territory law (s 24), creating a dynamic interaction with Commonwealth parliamentary law.

The Parliamentary Precincts Act 1988 is incorporated by reference in s 29, allowing either House of the Commonwealth Parliament to exempt an enactment from applying within the precincts by resolution. The Supreme Court Act 1933 (Territory) is the vehicle through which the Supreme Court described in s 48A exists; the Self-Government Act overlays jurisdictional and tenure rules.

Electoral matters are left largely to “electoral enactment” made after the second general election (s 67A), but the Self-Government Act itself prescribes the core qualifications of electors and the quota tolerances for redistributions (ss 67C–67D). Commonwealth electoral law therefore continues to supply the baseline for who may vote.

Although the document is a compilation, several textual indicators reveal post-1988 amendments. The definition of “Finance Minister” now refers to the Minister administering the Public Governance, Performance and Accountability Act 2013 rather than its predecessor, reflecting the 2014 overhaul of Commonwealth financial-management legislation. The insertion of Part VA (ss 48A–48D) and the detailed judicial-commission and removal provisions were added to bring the Territory into line with the Judicial Commissions Act 1994 (NSW) model and to satisfy constitutional expectations of judicial independence after the Kable line of cases. The addition of paragraphs (fa)–(fe) to the remuneration offices in s 73 and the non-diminution guarantee in s 73(3A) protect judicial salaries in accordance with Chapter III doctrine.

Section 23(1) contains gaps in paragraph lettering (omitting (b) and (f)), indicating that regulations made under s 23(2) have removed or narrowed certain excluded subjects over time, consistent with progressive transfer of responsibility to the Territory. The repeated appearance of updated cross-references (e.g. to the Magistrates Court Act 1930 and the Supreme Court Act 1933) shows ongoing technical alignment rather than substantive expansion. These changes were driven by the need to modernise financial frameworks, strengthen judicial tenure, and devolve additional responsibilities while preserving the Commonwealth’s ultimate sovereignty over the national capital.

The source text itself does not record decided cases, but several provisions are drafted in evident anticipation of constitutional or administrative-law challenge. Section 70’s broad validation clause—covering defects in election, appointment or authority—mirrors the de facto officer doctrine and is designed to prevent litigants from impugning every act of a Minister or member on technical grounds. The express statement in s 15(2) that a conflict-of-interest breach does not invalidate Assembly action similarly forecloses one avenue of challenge.

The Governor-General’s dissolution power in s 16 is conditioned on an “opinion” as to incapacity or gross impropriety. That subjective formulation would likely attract only narrow Wednesbury or legal-reasonableness review. The mandatory tabling of reasons (s 16(8)) supplies a parliamentary check and a potential source of evidence in any judicial review proceeding.

The judicial-removal safeguards in ss 48C–48D reflect the High Court’s insistence on institutional independence. Any Territory law that purported to bypass the commission process would be read down or invalidated for incompatibility with the judicial-power requirements implied by s 48A and the Constitution.

Section 28’s inconsistency test has generated controversy in industrial relations, as the note to that section acknowledges. The interplay between Territory laws and federal awards has been a recurring practical friction, although the Act itself merely records the existence of the issue.

The entrenchment mechanism in s 26—requiring referendum approval for certain “manner and form” laws—has never been used but remains a live constitutional curiosity: it is unclear whether a Commonwealth statute can validly require a Territory referendum as a condition of validity of Territory law, although the text assumes it can.

Most practitioners assume the ACT is “just like a State”. It is not. The Assembly’s legislative power is expressly “subject to this Part and Part VA” (s 22(1)), so the exclusions in s 23 and the regulations made under s 23(2) continue to bite. A seemingly innocuous amendment to an excluded subject can be ultra vires even if it passes with a two-thirds majority.

The two-thirds requirement in s 8(3) applies not only to an initial change in size but to any later amendment or repeal of the size-provision itself. This super-majority is self-entrenched by s 8(4) (“despite anything else in this Act”). Changing the number of members is therefore materially harder than passing ordinary legislation.

Section 26’s entrenching-law procedure is treacherous. The entrenching law itself must be approved by referendum (or by the highest special majority it prescribes). Many assume a simple majority of the Assembly can later repeal an entrenched law; it cannot. The same special-majority or referendum requirement travels with the entrenching law.

The definition of “resolution of no confidence” (s 19) is prescriptive. A motion that merely criticises the Chief Minister but does not use the statutory formula, or is moved without one week’s notice, has “no effect”. Casual political motions can therefore be ruled out of order on technical grounds that newcomers to the Assembly frequently overlook.

The validation provision in s 70 is wider than many realise. It protects not only the Chief Minister and Ministers but the Presiding Officer, Deputy Presiding Officer and any Commissioner. It also protects committee votes by persons who “purported to sit or vote as a member”. A defectively elected Speaker’s rulings and a committee’s report can therefore stand even if the underlying election is later declared void.

Finally, s 16(9) quietly disqualifies the Chief Executive of the Chief Minister’s Department from appointment as dissolution Commissioner. In a genuine constitutional crisis this seemingly minor rule could force the Governor-General to look outside the senior public service, altering the politics of any intervention.

Compliance begins with the Assembly’s own rules. A new member must subscribe the Schedule 1 oath or affirmation before sitting (s 9). Standing orders must be consulted for the precise form of notice required for a no-confidence motion (s 19(b)). Ministers must ensure that every appropriation proposal is moved by a Minister (s 65) and that portfolio allocations are published in the Territory Gazette (s 43(3)).

When drafting legislation, counsel must check the s 23 excluded-matters list and any regulations made under s 23(2). If the Bill touches an excluded subject it is void. For laws that may be entrenched, the entrenching law must itself follow the referendum or special-majority path set out in s 26(5)–(6).

Executive compliance requires that all spending be authorised by enactment (s 58) and that public money be accounted for in accordance with the financial-management enactment made under s 57(2). The Chief Minister must publish portfolio arrangements and any acting arrangements (s 43(3)).

Judicial-commission legislation must comply word-for-word with the composition and function requirements of s 48C; any deviation risks rendering removal proceedings unlawful. Retirement-age amendments must be drafted to apply only to future appointees or to sitting officers who have consented in writing (s 48B(2)).

Electoral administrators must ensure that any redistribution satisfies the 90–110 per cent quota rule in s 67D(2) and that the electoral enactment itself was made after the second general election and complies with s 67B.

Commonwealth officers exercising residual powers under s 17(3) or s 47 must act strictly within the statutory window and purpose. The safest compliance strategy is to maintain a register of statutory preconditions for each power (dissolution, no-confidence trigger, money-vote origin, judicial-removal sequence) and to obtain formal legal advice before any step that could engage s 16 or s 48.

For ongoing compliance, the Executive should publish and maintain an up-to-date compilation of all converted pre-1989 laws (s 34) and ensure that every new enactment is notified in the Territory Gazette with copies available for purchase on the day of notification (s 25). Failure on the latter point triggers a statutory duty to table an explanation (s 25(4)), which itself becomes a political and audit risk.