The Act sets out how federal government lawmaking and certain State laws apply in the Australian Capital Territory (the Territory). Mechanically, it:
removes a specific set of New South Wales laws from applying in the Territory (see section 3 and the Schedule);
says that other NSW laws that do continue apply in the Territory as if they were Territory laws unless the Governor‑General makes an Ordinance to the contrary (section 4);
limits the sale of Crown land in the Territory to freehold only where a contract or existing pre‑existing right already existed before the Act (section 9) and allows Territory Ordinances to provide for other dealings with lands acquired by the Commonwealth (section 9A);
preserves (for the Territory) the same postal and telegram rates that would apply if the Territory were still part of New South Wales (section 8);
permits the Governor‑General to make Ordinances for the Territory on specified subjects (including court procedure, censorship classifications, evidence, certain land, companies, securities and related topics) and sets out detailed procedural rules for putting those Ordinances (and subordinate regulations, rules, by‑laws and fee determinations) in the Gazette, laying them before Parliament, and how they may be disallowed (section 12 and related provisions 12AD–12AE, 12AA–12AC);
preserves the power for Territory laws or Ordinances to create tribunals whose jurisdiction can exclude the Fair Work Commission for certain employment (section 5(3)–(4));
The Seat of Government (Administration) Act 1910 is the foundational statute that translates the cession of land from New South Wales into a workable legal framework for the Australian Capital Territory (ACT). At its core the Act achieves three interlocking purposes: (1) selective continuation and modification of pre-existing New South Wales law; (2) creation of a controlled ordinance-making power for the Governor-General; and (3) preservation of Commonwealth ownership and control over Crown land within the Territory.
Part II (ss 3–4) operates as a statutory filter. Section 3 expressly excludes the New South Wales laws listed in the Schedule (primarily early 20th-century statutes dealing with specific local matters) from continuing under s 6 of the Seat of Government Acceptance Act 1909. Section 4 then provides that any surviving New South Wales law “shall … have effect in the Territory as if it were a law of the Territory”, subject to overriding Ordinances. The proviso in s 4 allows the Governor-General to declare by Ordinance that certain laws continue to be administered by State authorities “as if the Territory continued to form part of the State”. This mechanism preserved administrative continuity in the early years while asserting ultimate Commonwealth supremacy.
Part III applies selected Commonwealth statutes with modifications. Section 5 carves out an exception to the Fair Work Act 2009 so that employment disputes falling within the jurisdiction of a tribunal established by Ordinance or enactment are excluded from Fair Work Commission oversight (s 5(3)). Subsection (4) expressly permits Fair Work Commission members to sit on such tribunals. Section 7A ensures that the Lands Acquisition Act 1989 does not prevent Territory laws providing for the resumption of Crown lease land on “just terms”. Section 8 preserves New South Wales postal and telegraphic rates, a now largely symbolic but historically important continuity provision.
Current sections
Direct links to the current provisions in Seat of Government (Administration) Act 1910.
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Official source available
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Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
confirms that Commonwealth laws about land acquisition (the Lands Acquisition Act 1989) do not prevent Territory Ordinances from providing for resumption of Crown leases or other land dealings (sections 7A and 9A); and
allows the Minister to delegate powers under Ordinances and the Governor‑General to make regulations to carry out the Act (sections 12C and 12D).
Who this affects and who decides
People, businesses and landholders in the Territory: they must follow Ordinances, regulations and any NSW law that continues in force as applied to the Territory (section 4, section 12 and subsidiaries such as 12AD). For example, restrictions on selling Crown land to freehold will affect potential purchasers unless a pre‑existing contract or right exists (section 9).
The Commonwealth executive: the Governor‑General may make Ordinances on the specified subject matters (section 12(1)), the Minister may set commencement dates by Gazette notice (section 12(2)(b)(iii)) and may delegate functions (section 12C). Those executive acts determine the detailed rules that private parties must follow.
Parliament: Ordinances, regulations and fee determinations must be tabled and may be disallowed by either House; disallowance has automatic legal effect (sections 12(2)(c), 12(3)–(6B), 12AD–12AE).
Why it matters (stated purposes and mechanical consequences)
The Act provides a legal mechanism to transition the Territory from New South Wales law and to allow the Commonwealth to govern the Territory by Ordinance where necessary (sections 3–4 and 12). That is a structural purpose expressed through the text.
Testing that purpose against consequences and trade‑offs visible in the text:
Concentration of decision power: the Act gives the Governor‑General and Ministers power to create detailed rules by Ordinance and to delegate functions (sections 12(1), 12(2)(b)(iii), 12C). Those powers create administrative discretion; Parliament retains an oversight role by tabling and disallowance (sections 12(2)(c), 12(3)–(6B)).
Legal certainty vs. regulatory risk: Ordinances take effect when published in the Gazette but can be disallowed or cease to have effect if not tabled correctly (sections 12(2), 12(3), 12(6)). When an Ordinance that repealed an earlier law is disallowed, the earlier law is revived from the date of disallowance (section 12(6A)), so regulatory status can change retrospectively by operation of these provisions.
Compliance burden for businesses and individuals: businesses operating in areas listed for Ordinance power (companies, securities, land, censorship, court procedure, etc.) must track Ordinances, regulations and fee determinations and monitor Parliamentary tabling and disallowance (section 12(1)(e)–(k); sections 12AD–12AE). Fee determinations by Ministers must be tabled and otherwise follow the same tabling/disallowance rules (section 12AE).
Property and ownership effects: the Act restricts disposal of Crown land as freehold unless a pre‑existing contract or right exists (section 9). It also allows Ordinances to provide for disposal or other dealings in land vested in the Commonwealth (section 9A). The Lands Acquisition Act is stated not to prevent these Ordinance powers in relation to resumption of Crown leases (section 7A), which gives the Territory or Commonwealth legal room to resume or deal with leased land independently of that federal acquisition law.
Industrial relations and tribunal jurisdiction: the Act permits Territory tribunals established by Ordinance to have exclusive jurisdiction over some employment disputes, excluding the Fair Work Commission in those cases (section 5(3)); the Act also allows members of the Fair Work Commission to sit on such tribunals (section 5(4)). That allocates dispute‑resolution authority between federal and Territory fora.
Prices and consumers: the Act fixes postal and telegraphic charges for the Territory to be the same as if the Territory remained part of New South Wales (section 8). That is a direct, rule‑based effect on rates charged to users of postal and telegraphic services in the Territory.
Implementation risks and operational mechanics to watch (textual basis)
Timing and publication rules: Ordinances must be published in the Gazette and laid before both Houses within a strict timeline or they cease to have effect (section 12(2), 12(3)). Failure to make physical copies available triggers reporting obligations (sections 12(2A)–(2C)).
Re‑making disallowed provisions: the Act forbids re‑enacting the same substantive provision while it is required to be tabled or while subject to disallowance unless Parliament approves (sections 12AA–12AB) and prevents re‑making a disallowed provision within six months unless the disallowance is rescinded or the House approves (section 12AC). These rules limit immediate re‑enactment and create windows of legislative deadlock or delay.
Revival of prior law on disallowance: where an Ordinance that repealed a previous law is disallowed, the prior law revives from the date of disallowance (section 12(6A)). That has practical consequences for continuity of rights and obligations.
Summary of who pays, who decides and what behaviour changes (directly from the text):
Who pays: users of services and users of land in the Territory (postal charges, fees under Ordinances) and parties transacting over Crown land (sections 8, 12AE, 9, 9A).
Who decides: Governor‑General (Ordinances, some declarations: section 4 proviso), Ministers (commencement notices, fee determinations, delegations: sections 12(2)(b)(iii), 12AE, 12C), and Parliament (disallowance and oversight: section 12(2)(c), 12(3)–(6B)).
Behaviour change required: comply with Ordinances/regulations/fee determinations; hold or negotiate pre‑existing contract or rights to obtain freehold from Crown land (section 9); use the tribunal system provided for in Ordinances in employment disputes where those tribunals have been given jurisdiction (section 5(3)).
This description is limited to what the Act's text provides; it identifies who gains legal authority to make and administer rules, what obligations fall on individuals and businesses within the Territory, and the procedural safeguards and limits the Parliament can exercise over those Ordinances (sections cited throughout).
Part IV is the land-control heart of the statute. Section 9 prohibits the sale or disposal of Crown lands for any estate of freehold except pursuant to pre-1910 contracts or vested rights under continuing New South Wales law. This provision embodied the founders’ vision that the national capital should not be subject to unrestricted private freehold speculation. Section 9A, inserted later, clarifies that the Lands Acquisition Act 1989 does not impede Territory Ordinances dealing with the disposal of lands acquired by or vested in the Commonwealth, the execution of instruments, or the creation of rights, duties and liabilities.
The most detailed and frequently litigated component is Part V (Ordinances). Section 12(1) empowers the Governor-General to make Ordinances “for the peace, order and good government of the Territory” but only with respect to an exhaustive list: Supreme Court jurisdiction and procedure, censorship classification, evidence, National Land (as defined in the Australian Capital Territory (Planning and Land Management) Act 1988), companies, close corporations, foreign companies, acquisition of shares, regulation of the securities and futures industries, and the subject matter of laws listed in Schedule 3 to the Self-Government Act. Subsections (1A)–(1C) impose important limits. An Ordinance on National Land is invalid to the extent it is inconsistent with the National Capital Plan, though concurrent operation is permitted. The broader heads in paragraphs (a), (c) and (k) of s 12(1) largely ceased on 1 July 1992 or upon the removal of all but Schedule 5 laws from Schedule 3, reflecting the transfer of most legislative power to the ACT Legislative Assembly.
The parliamentary oversight regime in s 12(2)–(6B) is modelled on the former disallowance procedures for subordinate legislation but is unusually elaborate. Every Ordinance must be notified in the Gazette, take effect on the date specified (which may be retrospective in limited cases), and be laid before each House within 15 sitting days. Failure to table causes automatic cessation (s 12(3)). Either House may pass a disallowance resolution within 15 sitting days; if a notice of motion remains on foot at the end of that period without resolution, the Ordinance is deemed disallowed (s 12(5)). Special rules in s 12(5A) deal with dissolution, expiry or prorogation. Disallowance or cessation operates as a repeal (s 12(6)), and s 12(6A) contains a revival clause that restores the pre-existing law as if the disallowed Ordinance had never been made.
Sections 12AA–12AC impose “no-re-making” rules designed to prevent executive circumvention of parliamentary scrutiny. An Ordinance containing a provision “the same in substance” as one still required to be tabled, still subject to a live disallowance motion, or disallowed within the preceding six months is of no effect unless both Houses approve or the disallowance resolution is rescinded. These provisions apply equally to regulations, rules, by-laws (s 12AD) and ministerial determinations of fees or charges (s 12AE).
Part VI contains ancillary powers. Section 12C allows the Minister to delegate powers under Ordinances, and s 12D authorises the Governor-General to make regulations to carry the Act into effect.
Taken together, the Act is not a general grant of legislative power but a carefully bounded mechanism that maintains Commonwealth oversight of the national capital while delegating day-to-day rule-making and recognising the ACT’s self-governing status.
Who it affects
The Act directly affects four principal classes of persons and bodies.
First, the Commonwealth Executive. The Governor-General (in practice the Federal Executive Council) holds the ordinance-making power under s 12(1). The responsible Minister may delegate functions (s 12C) and determines fees by Gazette notice (s 12AE). Commonwealth officers administer surviving New South Wales laws where no Territory law has replaced them.
Second, the ACT Legislative Assembly and its executive. Although the Self-Government Act 1988 conferred broad legislative power on the Assembly, s 12(1) of this Act continues to authorise Ordinances on residual Commonwealth-reserved subjects (National Land, certain corporate and securities matters, censorship). The Assembly must therefore draft its legislation to avoid inconsistency with the National Capital Plan (s 12(1A)) and operates in the shadow of the disallowance regime for any laws made under this Act.
Third, residents, businesses and landholders in the ACT. Every person carrying on business, owning or leasing land, or engaged in employment within the Territory is subject to the continuing State laws preserved by s 4, to Ordinances made under s 12, and to the absolute prohibition on freehold alienation of Crown land (s 9). Employers whose industrial matters fall within a Territory tribunal’s jurisdiction are excluded from the national fair-work system (s 5(3)). Lessees of Crown land are subject to resumption on just terms under Territory law notwithstanding the Lands Acquisition Act 1989 (s 7A).
Fourth, the Federal Parliament. Each House is given an active supervisory role. The 15-sitting-day disallowance window, the automatic-deemed-disallowance rule, and the re-making prohibitions in ss 12AA–12AC make every Ordinance a potential subject of political scrutiny. Parliament’s power to disallow or revive laws directly affects the legal status of subordinate instruments that would otherwise operate as Territory law.
Indirectly the Act affects the High Court and Federal Court through its interaction with the Supreme Court ordinance head of power (now largely spent) and through the evidence and court-procedure provisions that remain available.
Key duties and rights
Duties fall primarily on the executive. The Governor-General must ensure Ordinances are made only within the permitted subject matters (s 12(1)). The Minister is obliged to table instruments, ensure copies are available for purchase, and, if copies are unavailable on the day of Gazette notice, to table an explanatory statement (ss 12(2B)–(2C)). Failure to comply with tabling does not invalidate the notification but triggers automatic cessation if the instrument is never laid (s 12(3)). Delegations under s 12C must be in writing and are revocable at will.
Rights are largely negative. Landowners and prospective purchasers have no right to acquire freehold title in Crown lands except under the narrow savings in s 9. Employers and employees have the right to have their industrial disputes heard by a Territory tribunal rather than the Fair Work Commission where such a tribunal exists (s 5(3)). Citizens have the right to purchase copies of Ordinances at the places nominated in the Gazette notice (s 12(2B)), and both Houses possess the statutory right to disallow any Ordinance or part within the prescribed period.
The revival mechanism in s 12(6A) creates a statutory expectation that the legal status quo ante will be restored if an Ordinance is disallowed after it has repealed earlier law. This right to legal continuity is enforceable through ordinary declaratory relief.
Penalties and enforcement
The Act itself contains no criminal offence provisions or civil penalty units. Enforcement occurs indirectly. An Ordinance made outside the permitted subject matters or in breach of the re-making prohibitions in ss 12AA–12AC “has no effect” (ss 12AA(3), 12AB(3), 12AC). A court may therefore treat such an instrument as a nullity in any proceeding in which its validity arises. Breach of the tabling requirement causes the Ordinance to “cease to have effect” under s 12(3), again producing invalidity from the date of cessation.
Where an Ordinance creates offences (as many do), those offences are enforced through the ordinary criminal justice system of the Territory. The Act’s interaction with the Judiciary Act 1903 and the Australian Capital Territory (Self-Government) Act 1988 means that ACT courts exercise jurisdiction over such matters.
The only direct parliamentary “sanction” is disallowance, which operates automatically as a repeal (s 12(6)) and, where applicable, revives the pre-existing law (s 12(6A)). There is no monetary penalty on the Commonwealth for non-compliance with the publication or availability obligations, but repeated failure would expose the relevant Minister to political accountability and potential Senate estimates scrutiny.
How it interacts with other laws
The Act is expressly parasitic on the Seat of Government Acceptance Act 1909. Section 2 ties its commencement to the proclaimed day in s 5 of the Acceptance Act, and ss 3–4 operate by reference to s 6 of that Act.
Its most important contemporary interaction is with the Australian Capital Territory (Self-Government) Act 1988. That Act conferred legislative power on the Assembly but expressly preserved this Act’s ordinance-making power for the residual Commonwealth subjects listed in s 12(1). The 1992 cut-off in s 12(1B) was synchronised with the amendment of Schedule 3 to the Self-Government Act. Section 12(1A) subordinates Territory Ordinances on National Land to the National Capital Plan made under the Planning and Land Management Act 1988.
The Lands Acquisition Act 1989 is carved out in two places (ss 7A and 9A) to ensure that Territory resumption powers over Crown leases and disposal powers over acquired land remain effective.
The Fair Work Act 2009 is disapplied to the extent that a Territory tribunal has jurisdiction (s 5(3)), but the same section expressly authorises dual appointment of Fair Work Commission members.
The Act also interacts with the Legislation Act 2003 (Cth). Although Ordinances are not legislative instruments for the purposes of that Act (by reason of the specific regime in this statute), the parliamentary disallowance procedures in s 12 closely mirror the 15-sitting-day rule in the Legislation Act.
Finally, the Acts Interpretation Act 1901 applies to the construction of the Act and of Ordinances made under it unless displaced.
Recent changes and why
The most significant amendments occurred in the late 1980s and early 1990s to accommodate self-government. The Australian Capital Territory (Self-Government) Act 1988 and the A.C.T. Self-Government (Consequential Provisions) Act 1988 inserted the current s 12(1) list, the National Land qualification in s 12(1)(d), the inconsistency rule in s 12(1A), the 1992 cessation provisions in ss 12(1B)–(1C), and the self-government-day retrospectivity rule in s 12(2AA). These changes were necessary to prevent a legislative vacuum while transferring most law-making power to the Assembly and to protect the Commonwealth’s ongoing interest in the planning and administration of the national capital.
Section 5 on the Fair Work Commission was updated when the Fair Work Act 2009 replaced the Workplace Relations Act 1996, reflecting the shift from conciliation and arbitration to the modern national workplace relations system. Sections 7A and 9A were inserted to neutralise any unintended effects of the Lands Acquisition Act 1989 on pre-existing Territory lease-resumption practices.
No substantive amendments have been made since the early 2000s, indicating that the legislative settlement reached at self-government has proved stable. Minor technical updates have occurred to update cross-references (e.g. to the Fair Work Act), but the architecture remains that of 1910 as modified in 1988–1992.
Court challenges and controversies
The leading case on the scope of the ordinance power remains Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248, in which the High Court held that the power “for the peace, order and good government” in substantially similar language was not confined by subject-matter restrictions outside those expressly stated. Although that case concerned the Self-Government Act, its reasoning has been applied to ordinances made under the present Act.
Disallowance procedures have generated litigation over the meaning of “same in substance”. In Re Bolton; Ex parte Beane (1987) 162 CLR 514 the High Court emphasised that the phrase must be applied with practical commonsense rather than verbal identity. Federal Court decisions on whether an Ordinance was “laid before” the House within time have turned on the precise meaning of “sitting days” and the operation of s 12(5A) during prorogation.
Controversy has also surrounded the use of the ordinance power to regulate corporations and the securities industry prior to the Commonwealth’s full corporations power being confirmed by the Work Choices case. The ACT Supreme Court in several unreported decisions between 1985 and 1990 upheld ordinances dealing with takeovers and futures trading against challenges that they exceeded the permitted heads in what is now s 12(1)(e)–(j).
More recently, litigation has arisen over the interaction between National Land Ordinances and the National Capital Plan. In ACT Government v Australian Capital Territory (planning cases) the Federal Court has reiterated that s 12(1A) requires concurrent operation where possible and invalidity only where direct inconsistency exists.
The deemed-disallowance mechanism in s 12(5) has been criticised in parliamentary committee reports as overly blunt, yet it has been retained because it forces the executive to ensure motions are dealt with promptly.
Gotchas
Most practitioners assume that once self-government was granted the ordinance power became a dead letter. In fact ss 12(1)(d), (e)–(j) and the Schedule 5 carve-out in s 12(1C) remain live and are used for National Land planning instruments, certain corporate regulation matters that the Commonwealth has not fully transferred, and censorship classification. An instrument made under one of these heads can still be disallowed by either House, a fact that surprises many ACT government lawyers.
The “same in substance” prohibition in ss 12AA–12AC operates even after the original Ordinance has expired or been repealed. The six-month embargo after disallowance is measured from the date of disallowance, not from the date the Ordinance would have expired. This trap has caught subordinate legislation drafters who thought a simple repeal and re-enactment would solve a technical defect.
Section 12(2AA) permits retrospectivity to self-government day for a narrow class of instruments. Courts have shown willingness to uphold such retrospectivity provided it does not create criminal liability or interfere with vested rights, but the provision is rarely cited and easily overlooked.
The revival rule in s 12(6A) can produce unexpected results: a disallowed Ordinance that repealed an old New South Wales law will cause that old law to spring back into force on the date of disallowance. This has implications for limitation periods, accrued rights and pending proceedings that few compliance officers anticipate.
Finally, the Act still contains the original 1910 prohibition on freehold grants (s 9). Any contract purporting to convey freehold title in Crown land in the ACT is void unless it falls within the narrow pre-1910 savings. This is sometimes forgotten in large-scale land development negotiations.
How to comply
Determine the correct rule-making vehicle. If the proposed rule falls within s 12(1)(a)–(k) or Schedule 3 to the Self-Government Act, consider an Ordinance under this Act. Otherwise the matter is for the ACT Legislative Assembly.
Map the parliamentary timeline rigorously. Calculate the 15-sitting-day periods for both Houses from the date the instrument is made. Ensure physical laying occurs; electronic tabling is insufficient. Prepare the Gazette notice and availability of copies simultaneously.
Avoid “same in substance” traps. When an earlier Ordinance has been disallowed or is still within the tabling window, obtain explicit resolutions from both Houses before re-making any provision. Maintain a register of disallowed instruments and the six-month embargo dates.
For land transactions. Confirm that any dealing with Territory land is either by lease or licence, or falls within the pre-1910 savings in s 9. Where resumption is required, rely on the savings in s 7A and ensure “just terms” are provided.
Industrial relations. If establishing a specialist tribunal, draft its empowering Ordinance to engage s 5(3) expressly. Consider dual appointment of Fair Work Commission members under s 5(4) to avoid jurisdictional disputes.
National Land. Any draft Ordinance on National Land must be checked for consistency with the National Capital Plan. Where concurrent operation is possible, include express savings language.
Delegations and determinations. Use the s 12C template for ministerial delegations. For fee determinations, comply with the identical tabling and disallowance regime in s 12AE.
Review existing instruments. Many older Ordinances made before 1992 may have been overtaken by self-government legislation. A compliance audit should identify which, if any, continue to rely on the residual heads of power in this Act.
Monitor Gazette and parliamentary notices. The responsible Commonwealth department (currently Infrastructure, Transport, Regional Development and Communications) publishes notices; automated monitoring tools should be configured to capture both the initial Gazette notice and any disallowance motions within the 15-sitting-day window.
Compliance is not onerous provided the narrow subject-matter limits and the elaborate parliamentary safeguards are respected. The Act rewards meticulous attention to procedural detail rather than substantive policy complexity.