The Act transitions the Australian Capital Territory from New South Wales law to a Territory legal regime by preserving some NSW laws, removing others, and empowering the Governor‑General and Ministers to make Ordinances on key subjects. It affects Territory residents, businesses and landholders by creating new regulatory instruments, preserving postal/telegraph rates, restricting freehold sales of Crown land absent pre‑existing rights, and allocating dispute‑resolution powers; Parliament retains oversight through tabling and disallowance of Ordinances and related instruments.
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.
24
Part I
Preliminary
Part I—Preliminary
1
Short title
1 Short title
This Act may be cited as the Seat of Government (Administration) Act 1910.
2
Commencement
2 Commencement
This Act shall commence on the proclaimed day referred to in section five of the Seat of Government Acceptance Act 1909.
2A
Interpretation
2A Interpretation
In this Act, unless the contrary intention appears:
enactment has the same meaning in the Australian Capital Territory (Self‑Government) Act 1988.
Part II
Application of State Laws
Part II—Application of State Laws
3
Certain State laws not to continue in Territory
3 Certain State laws not to continue in Territory
Notwithstanding anything in section six of the Seat of Government Acceptance Act 1909, the laws of the State of New South Wales described in the Schedule to this Act shall not continue in force in the Territory.
4
Effect of continuance of State laws
4 Effect of continuance of State laws
Where any law of the State of New South Wales continues in force in the Territory by virtue of section six of the Seat of Government Acceptance Act 1909, it shall, subject to any Ordinance made by the Governor‑General, have effect in the Territory as if it were a law of the Territory:
Provided that, with respect to any such law (other than such law that is an enactment), the Governor‑General may by Ordinance declare that it shall, while the Ordinance remains in force, but subject to the provisions of the Ordinance, have effect in the Territory, and continue to be administered by the authorities of the State, as if the Territory continued to form part of the State.
Part III
Application of Commonwealth Acts
Part III—Application of Commonwealth Acts
5
Application of Fair Work Act 2009
5 Application of Fair Work Act 2009
(3) The powers of the Fair Work Commission do not extend to employment in relation to which a tribunal established by an Ordinance in force under this Act or by an enactment, whether made or passed before or after the commencement of this section, has power to hear and determine disputes, claims or matters relating to the terms and conditions of the employment.
(4) An Ordinance under this Act or an enactment may make provision for a member of the Fair Work Commission to constitute, or be a member of, a tribunal of the kind referred to in subsection (3), and nothing in this section or the Fair Work Act 2009 prevents a member of the Fair Work Commission from accepting appointment or performing duties as, or as a member of, such a tribunal.
7A
Resumption of land held under Crown leases
7A Resumption of land held under Crown leases
The application of the Lands Acquisition Act 1989 in relation to land in the Territory does not prevent or affect the making or operation of a provision of an Ordinance or other law of the Territory (including an Ordinance or other law made before the commencement of this section) for or in relation to the resumption of land held under leases granted by or on behalf of the Crown in accordance with the provisions of those leases or otherwise on just terms.
8
Postal and telegraphic rates and charges
8 Postal and telegraphic rates and charges
The rates and charges for postal articles and telegrams in the Territory and to and from the Territory shall be the same as if the Territory continued to be part of the State of New South Wales.
Part IV
Disposal of Crown lands
Part IV—Disposal of Crown lands
9
Disposal of Crown lands
9 Disposal of Crown lands
No Crown lands in the Territory shall be sold or disposed of for any estate of freehold, except in pursuance of some contract entered into, or the right to enter into which existed before the commencement of this Act, or except for the purpose of giving effect to some right which existed before the commencement of this Act under or by virtue of any law of the State of New South Wales which has continued in force in the Territory by virtue of section six of the Seat of Government Acceptance Act 1909, or of that Act as subsequently amended.
9A
Dealings with Crown lands
9A Dealings with Crown lands
The application of the Lands Acquisition Act 1989 in relation to land in the Territory does not prevent or affect the making or operation of a provision of an Ordinance or other law of the Territory (including an Ordinance or other law made before the commencement of this section) by virtue of which:
(a) lands in the Territory acquired by or vested in the Commonwealth may be disposed of or otherwise dealt with;
(b) instruments, receipts and other documents in relation to any such lands may be executed; or
(c) rights, duties and liabilities in relation to any such lands are or may be acquired, conferred or imposed.
Part V
Ordinances
Part V—Ordinances
12
Ordinances
12 Ordinances
(1) Subject to subsection, (1B) the Governor‑General may make Ordinances for the peace, order and good government of the Territory with respect to:
(a) the jurisdiction, practice and procedure of the Supreme Court of the Territory;
(b) the classification of materials for the purposes of censorship;
(c) evidence;
(d) National Land as defined by the Australian Capital Territory (Planning and Land Management) Act 1988;
(e) companies;
(f) close corporations;
(g) foreign companies;
(h) the acquisition of shares in bodies corporate;
(j) the regulation of the securities industry and the futures industry; and
(k) the subject matter of laws specified in Schedule 3 to the Australian Capital Territory (Self‑Government) Act 1988.
(1A) An Ordinance made under paragraph (1)(d) has no effect to the extent that it is inconsistent with the National Capital Plan in effect under the Australian Capital Territory (Planning and Land Management) Act 1988, but an Ordinance shall be taken to be consistent with the Plan to the extent that it is capable of operating concurrently with the Plan.
(1B) Subject to subsection (1C), paragraphs (1)(a), (c) and (k) cease to have effect:
(a) on or after 1 July 1992; or
(b) after regulations made for the purposes of subsection 34(6) of the Australian Capital Territory (Self‑Government) Act 1988 have amended Schedule 3 to that Act by omitting all the laws in that Schedule, other than those referred to in Schedule 5 to that Act;
whichever occurs sooner.
(1C) Paragraph (1)(k) does not cease to have effect on and after 1 July 1992 in regard to any matter referred to in Schedule 5 to the Australian Capital Territory (Self‑Government) Act 1988.
(2) Every such Ordinance shall:
(a) be notified in the Gazette;
(b) subject to subsection (2AA), take effect:
(i) from the date of notification;
(ii) where another date (whether before or after the date of notification) is specified in the Ordinance, from the date specified; or
(iii) where the Ordinance so provides, from such date as is fixed by the Minister by notice in the Gazette; and
(c) be laid before each House of the Parliament within fifteen sitting days of that House after the day on which the Ordinance is made.
(2AA) An Ordinance that:
(a) makes provision in relation to a matter arising from, connected with or consequential upon the establishment of the Territory as a body politic under the Crown; and
(b) is made on or before Self‑Government Day within the meaning of the A.C.T. Self‑Government (Consequential Provisions) Act 1988;
may be expressed to take effect from the date of commencement of a provision of the Australian Capital Territory (Self‑Government) Act 1988.
(2A) A notice in the Gazette of any such Ordinance having been made, and of the place or places where copies of the Ordinance can be purchased, shall be sufficient compliance with the requirement of paragraph (a) of the last preceding subsection.
(2B) Where a notice of an Ordinance having been made is published in accordance with subsection (2A), copies of the Ordinance shall, at the time of publication of the notice or as soon as practicable thereafter, be made available for purchase at the place, or at each of the places, specified in the notice.
(2C) Where, on the date of publication of a notice referred to in subsection (2B), there are no copies of the Ordinance to which the notice relates available for purchase at the place, or at one or more of the places, specified in the notice, the Minister shall cause to be laid before each House of the Parliament, within 15 sitting days of that House after that date, a statement that copies of the Ordinance were not so available and the reason why they were not so available.
(2D) Failure to comply with a requirement of subsection (2B) or (2C) shall not be taken to constitute a failure to comply with paragraph (2)(a) or subsection (2A).
(3) If an Ordinance is not laid before each House of the Parliament in accordance with paragraph (c) of subsection (2) of this section, it ceases to have effect.
(4) If either House of the Parliament, in pursuance of a motion of which notice has been given within fifteen sitting days after an Ordinance has been laid before that House, passes a resolution disallowing the Ordinance or a part of the Ordinance, the Ordinance or part so disallowed thereupon ceases to have effect.
(5) If, at the expiration of fifteen sitting days after notice of a motion to disallow an Ordinance or part of an Ordinance has been given in a House of the Parliament, being notice given within fifteen sitting days after the Ordinance has been laid before that House:
(a) the notice has not been withdrawn and the motion has not been called on; or
(b) the motion has been called on, moved and seconded and has not been withdrawn or otherwise disposed of;
the Ordinance or part, as the case may be, specified in the motion shall thereupon be deemed to have been disallowed.
(5A) If, before the expiration of fifteen sitting days after notice of a motion to disallow an Ordinance or part of an Ordinance has been given in a House of the Parliament:
(a) the House of Representatives is dissolved or expires, or the Parliament is prorogued; and
(b) at the time of the dissolution, expiry or prorogation, as the case may be:
(i) the notice has not been withdrawn and the motion has not been called on; or
(ii) the motion has been called on, moved and seconded and has not been withdrawn or otherwise disposed of;
the Ordinance shall, for the purposes of the last two preceding subsections, be deemed to have been laid before that first‑mentioned House on the first sitting day of that first‑mentioned House after the dissolution, expiry or prorogation, as the case may be.
(6) Where an Ordinance is disallowed, or is deemed to have been disallowed, under this section or ceases to have effect by virtue of the operation of subsection (3), the disallowance of the Ordinance or the operation of subsection (3) in relation to the Ordinance, as the case may be, has the same effect as a repeal of the Ordinance.
(6A) Where:
(a) an Ordinance (in this subsection referred to as the relevant Ordinance) is disallowed, or is deemed to have been disallowed, under this section or ceases to have effect by virtue of the operation of subsection (3); and
(b) the relevant Ordinance repealed, in whole or in part, another Ordinance or any other law that was in force immediately before the relevant Ordinance came into operation;
the disallowance of the relevant Ordinance or the operation of subsection (3) in relation to the relevant Ordinance, as the case may be, has the effect of reviving that other Ordinance or law, as the case may be, from and including the date of the disallowance or the date on which the relevant Ordinance ceased to have effect by virtue of that operation of subsection (3), as the case may be, as if the relevant Ordinance had not been made.
(6B) A reference in subsection (6) or (6A) to an Ordinance shall be read as including a reference to a part of an Ordinance, and a reference in subsection (6A) to a law has a corresponding meaning.
12AA
Ordinance not to be re‑made while required to be tabled
12AA Ordinance not to be re‑made while required to be tabled
(1) Where an Ordinance (in this section called the original Ordinance) has been made, no Ordinance containing a provision being the same in substance as a provision of the original Ordinance shall be made during the period defined by subsection (2) unless both Houses of the Parliament by resolution approve the making of an Ordinance containing a provision the same in substance as that provision of the original Ordinance.
(2) The period referred to in subsection (1) is the period starting on the day on which the original Ordinance was made and ending at the end of 7 days after:
(a) if the original Ordinance has been laid, in accordance with subsection 12(2), before both Houses of the Parliament on the same day—that day;
(b) if the original Ordinance has been so laid before both Houses on different days—the later of those days; or
(c) if the original Ordinance has not been so laid before both Houses—the last day on which subsection 12(2) could have been complied with.
(3) If a provision of an Ordinance is made in contravention of this section, the provision has no effect.
12AB
Ordinance not to be re‑made while subject to disallowance
12AB Ordinance not to be re‑made while subject to disallowance
(1) Where notice of a motion to disallow an Ordinance has been given in a House of the Parliament within 15 sitting days after the Ordinance has been laid before that House, no Ordinance containing a provision being the same in substance as a provision of the first‑mentioned Ordinance shall be made unless:
(a) the notice has been withdrawn;
(b) the Ordinance is deemed to have been disallowed under subsection 12(5);
(c) the motion has been withdrawn or otherwise disposed of; or
(d) subsection 12(5A) has applied in relation to the Ordinance.
(2) Where:
(a) because of subsection 12(5A), an Ordinance is deemed to have been laid before a House of the Parliament on a particular day; and
(b) notice of a motion to disallow the Ordinance has been given in that House within 15 sitting days after that day;
no Ordinance containing a provision being the same in substance as a provision of the first‑mentioned Ordinance shall be made unless:
(c) the notice has been withdrawn;
(d) the Ordinance is deemed to have been disallowed under subsection 12(5);
(e) the motion has been withdrawn or otherwise disposed of; or
(f) subsection 12(5A) has applied again in relation to the Ordinance.
(3) If a provision of an Ordinance is made in contravention of this section, the provision has no effect.
(4) This section does not limit the operation of section 12AA or 12AC.
(5) In this section:
Ordinance includes a part of an Ordinance.
12AC
Disallowed Ordinance not to be re‑made unless resolution rescinded or House approves
12AC Disallowed Ordinance not to be re‑made unless resolution rescinded or House approves
If an Ordinance or a part of an Ordinance is disallowed, or is deemed to have been disallowed, under section 12, and an Ordinance containing a provision being the same in substance as a provision so disallowed, or deemed to have been disallowed, is made within 6 months after the date of the disallowance, that provision has no effect, unless:
(a) in the case of an Ordinance, or a part of an Ordinance, disallowed by resolution—the resolution has been rescinded by the House of the Parliament by which it was passed; or
(b) in the case of an Ordinance, or a part of an Ordinance, deemed to have been disallowed—the House of the Parliament in which notice of the motion to disallow the Ordinance or part was given has approved, by resolution, the making of a provision the same in substance as the provision deemed to have been disallowed.
12AD
Regulations, rules and by‑laws
12AD Regulations, rules and by‑laws
(1) All regulations made under an Ordinance shall be laid before each House of the Parliament within 15 sitting days of that House after the day on which the regulations are made and, if they are not so laid before each House of the Parliament, have no effect.
(2) Subsections 12(4) to (6B), inclusive, and sections 12AA, 12AB and 12AC apply in relation to regulations laid before a House of the Parliament as if, in those provisions, references to an Ordinance were references to regulations and references to a provision of an Ordinance were references to a regulation.
(3) In this section, regulations includes rules and by‑laws.
12AE
Determinations of fees or charges
12AE Determinations of fees or charges
(1) Every determination shall be laid before each House of the Parliament within 15 sitting days of that House after the day on which the determination is made and, if it is not so laid before each House of the Parliament, has no effect.
(2) Subsections 12(4) to (6B), inclusive, and sections 12AA, 12AB and 12AC apply in relation to a determination laid before a House of the Parliament as if, in those provisions, references to an Ordinance were references to a determination.
(3) In this section:
determination means a determination made by a Minister under an Ordinance empowering the Minister to determine, by notice published in the Gazette, fees or charges for the purposes of the Ordinance.
Part VI
Miscellaneous
Part VI—Miscellaneous
12C
Delegation by Minister
12C Delegation by Minister
(1) The Minister may, by writing under his or her hand, delegate to any person all or any of his or her powers or functions under any Ordinance made under this Act.
(2) Every delegation under this section shall be revocable at will, and no delegation shall prevent the exercise of any power or function by the Minister.
12D
Regulations
12D Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters which are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Source text: opening excerpt
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
This Act may be cited as the Seat of Government (Administration) Act 1910.
2 — Commencement
This Act shall commence on the proclaimed day referred to in section five of the Seat of Government Acceptance Act 1909.
2A — Interpretation
In this Act, unless the contrary intention appears:
enactment has the same meaning in the Australian Capital Territory (Self‑Government) Act 1988.
Part II — Application of State Laws
3 — Certain State laws not to continue in Territory
Notwithstanding anything in section six of the Seat of Government Acceptance Act 1909, the laws of the State of New South Wales described in the Schedule to this Act shall not continue in force in the Territory.
4 — Effect of continuance of State laws
Where any law of the State of New South Wales continues in force in the Territory by virtue of section six of the Seat of Government Acceptance Act 1909, it shall, subject to any Ordinance made by the Governor‑General, have effect in the Territory as if it were a law of the Territory:
Provided that, with respect to any such law (other than such law that is an enactment), the Governor‑General may by Ordinance declare that it shall, while the Ordinance remains in force, but subject to the provisions of the Ordinance, have effect in the Territory, and continue to be administered by the authorities of the State, as if the Territory continued to form part of the State.
Part III — Application of Commonwealth Acts
5 — Application of Fair Work Act 2009
(3) The powers of the Fair Work Commission do not extend to employment in relation to which a tribunal established by an Ordinance in force under this Act or by an enactment, whether made or passed before or after the commencement of this section, has power to hear and determine disputes, claims or matters relating to the terms and conditions of the employment.
(4) An Ordinance under this Act or an enactment may make provision for a member of the Fair Work Commission to constitute, or be a member of, a tribunal of the kind referred to in subsection (3), and nothing in this section or the Fair Work Act 2009 prevents a member of the Fair Work Commission from accepting appointment or performing duties as, or as a member of, such a tribunal.
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.
Section 3Certain State laws not to continue in Territory
The application of the Lands Acquisition Act 1989 in relation to land in the Territory does not prevent or affect the making or operation of a provision of an Ordinance or other law of the Territory (including an Ordinance or other law made before the commencement of this section) for or in relation to the resumption of land held under leases granted by or on behalf of the Crown in accordance with the provisions of those leases or otherwise on just terms.
8 — Postal and telegraphic rates and charges
The rates and charges for postal articles and telegrams in the Territory and to and from the Territory shall be the same as if the Territory continued to be part of the State of New South Wales.
Part IV — Disposal of Crown lands
9 — Disposal of Crown lands
No Crown lands in the Territory shall be sold or disposed of for any estate of freehold, except in pursuance of some contract entered into, or the right to enter into which existed before the commencement of this Act, or except for the purpose of giving effect to some right which existed before the commencement of this Act under or by virtue of any law of the State of New South Wales which has continued in force in the Territory by virtue of section six of the Seat of Government Acceptance Act 1909, or of that Act as subsequently amended.
9A — Dealings with Crown lands
The application of the Lands Acquisition Act 1989 in relation to land in the Territory does not prevent or affect the making or operation of a provision of an Ordinance or other law of the Territory (including an Ordinance or other law made before the commencement of this section) by virtue of which:
(a) lands in the Territory acquired by or vested in the Commonwealth may be disposed of or otherwise dealt with;
(b) instruments, receipts and other documents in relation to any such lands may be executed; or
(c) rights, duties and liabilities in relation to any such lands are or may be acquired, conferred or imposed.
Part V — Ordinances
12 — Ordinances
(1) Subject to subsection, (1B) the Governor‑General may make Ordinances for the peace, order and good government of the Territory with respect to:
(a) the jurisdiction, practice and procedure of the Supreme Court of the Territory;
(b) the classification of materials for the purposes of censorship;
(c) evidence;
(d) National Land as defined by the Australian Capital Territory (Planning and Land Management) Act 1988;
(e) companies;
(f) close corporations;
(g) foreign companies;
(h) the acquisition of shares in bodies corporate;
(j) the regulation of the securities industry and the futures industry; and
(k) the subject matter of laws specified in Schedule 3 to the Australian Capital Territory (Self‑Government) Act 1988.
(1A) An Ordinance made under paragraph (1)(d) has no effect to the extent that it is inconsistent with the National Capital Plan in effect under the Australian Capital Territory (Planning and Land Management) Act 1988, but an Ordinance shall be taken to be consistent with the Plan to the extent that it is capable of operating concurrently with the Plan.
(1B) Subject to subsection (1C), paragraphs (1)(a), (c) and (k) cease to have effect:
(a) on or after 1 July 1992; or
(b) after regulations made for the purposes of subsection 34(6) of the Australian Capital Territory (Self‑Government) Act 1988 have amended Schedule 3 to that Act by omitting all the laws in that Schedule, other than those referred to in Schedule 5 to that Act;
whichever occurs sooner.
(1C) Paragraph (1)(k) does not cease to have effect on and after 1 July 1992 in regard to any matter referred to in Schedule 5 to the Australian Capital Territory (Self‑Government) Act 1988.
(2) Every such Ordinance shall:
(a) be notified in the Gazette;
(b) subject to subsection (2AA), take effect:
(i) from the date of notification;
(ii) where another date (whether before or after the date of notification) is specified in the Ordinance, from the date specified; or
(iii) where the Ordinance so provides, from such date as is fixed by the Minister by notice in the Gazette; and
(c) be laid before each House of the Parliament within fifteen sitting days of that House after the day on which the Ordinance is made.
(2AA) An Ordinance that:
(a) makes provision in relation to a matter arising from, connected with or consequential upon the establishment of the Territory as a body politic under the Crown; and
(b) is made on or before Self‑Government Day within the meaning of the A.C.T. Self‑Government (Consequential Provisions) Act 1988;
may be expressed to take effect from the date of commencement of a provision of the Australian Capital Territory (Self‑Government) Act 1988.
(2A) A notice in the Gazette of any such Ordinance having been made, and of the place or places where copies of the Ordinance can be purchased, shall be sufficient compliance with the requirement of paragraph (a) of the last preceding subsection.
(2B) Where a notice of an Ordinance having been made is published in accordance with subsection (2A), copies of the Ordinance shall, at the time of publication of the notice or as soon as practicable thereafter, be made available for purchase at the place, or at each of the places, specified in the notice.
(2C) Where, on the date of publication of a notice referred to in subsection (2B), there are no copies of the Ordinance to which the notice relates available for purchase at the place, or at one or more of the places, specified in the notice, the Minister shall cause to be laid before each House of the Parliament, within 15 sitting days of that House after that date, a statement that copies of the Ordinance were not so available and the reason why they were not so available.
(2D) Failure to comply with a requirement of subsection (2B) or (2C) shall not be taken to constitute a failure to comply with paragraph (2)(a) or subsection (2A).
(3) If an Ordinance is not laid before each House of the Parliament in accordance with paragraph (c) of subsection (2) of this section, it ceases to have effect.
(4) If either House of the Parliament, in pursuance of a motion of which notice has been given within fifteen sitting days after an Ordinance has been laid before that House, passes a resolution disallowing the Ordinance or a part of the Ordinance, the Ordinance or part so disallowed thereupon ceases to have effect.
(5) If, at the expiration of fifteen sitting days after notice of a motion to disallow an Ordinance or part of an Ordinance has been given in a House of the Parliament, being notice given within fifteen sitting days after the Ordinance has been laid before that House:
(a) the notice has not been withdrawn and the motion has not been called on; or
(b) the motion has been called on, moved and seconded and has not been withdrawn or otherwise disposed of;
the Ordinance or part, as the case may be, specified in the motion shall thereupon be deemed to have been disallowed.
(5A) If, before the expiration of fifteen sitting days after notice of a motion to disallow an Ordinance or part of an Ordinance has been given in a House of the Parliament:
(a) the House of Representatives is dissolved or expires, or the Parliament is prorogued; and
(b) at the time of the dissolution, expiry or prorogation, as the case may be:
(i) the notice has not been withdrawn and the motion has not been called on; or
(ii) the motion has been called on, moved and seconded and has not been withdrawn or otherwise disposed of;
the Ordinance shall, for the purposes of the last two preceding subsections, be deemed to have been laid before that first‑mentioned House on the first sitting day of that first‑mentioned House after the dissolution, expiry or prorogation, as the case may be.
(6) Where an Ordinance is disallowed, or is deemed to have been disallowed, under this section or ceases to have effect by virtue of the operation of subsection (3), the disallowance of the Ordinance or the operation of subsection (3) in relation to the Ordinance, as the case may be, has the same effect as a repeal of the Ordinance.
(6A) Where:
(a) an Ordinance (in this subsection referred to as the relevant Ordinance) is disallowed, or is deemed to have been disallowed, under this section or ceases to have effect by virtue of the operation of subsection (3); and
(b) the relevant Ordinance repealed, in whole or in part, another Ordinance or any other law that was in force immediately before the relevant Ordinance came into operation;
the disallowance of the relevant Ordinance or the operation of subsection (3) in relation to the relevant Ordinance, as the case may be, has the effect of reviving that other Ordinance or law, as the case may be, from and including the date of the disallowance or the date on which the relevant Ordinance ceased to have effect by virtue of that operation of subsection (3), as the case may be, as if the relevant Ordinance had not been made.
(6B) A reference in subsection (6) or (6A) to an Ordinance shall be read as including a reference to a part of an Ordinance, and a reference in subsection (6A) to a law has a corresponding meaning.
12AA — Ordinance not to be re‑made while required to be tabled
(1) Where an Ordinance (in this section called the original Ordinance) has been made, no Ordinance containing a provision being the same in substance as a provision of the original Ordinance shall be made during the period defined by subsection (2) unless both Houses of the Parliament by resolution approve the making of an Ordinance containing a provision the same in substance as that provision of the original Ordinance.
(2) The period referred to in subsection (1) is the period starting on the day on which the original Ordinance was made and ending at the end of 7 days after:
(a) if the original Ordinance has been laid, in accordance with subsection 12(2), before both Houses of the Parliament on the same day—that day;
(b) if the original Ordinance has been so laid before both Houses on different days—the later of those days; or
(c) if the original Ordinance has not been so laid before both Houses—the last day on which subsection 12(2) could have been complied with.
(3) If a provision of an Ordinance is made in contravention of this section, the provision has no effect.
12AB — Ordinance not to be re‑made while subject to disallowance
(1) Where notice of a motion to disallow an Ordinance has been given in a House of the Parliament within 15 sitting days after the Ordinance has been laid before that House, no Ordinance containing a provision being the same in substance as a provision of the first‑mentioned Ordinance shall be made unless:
(a) the notice has been withdrawn;
(b) the Ordinance is deemed to have been disallowed under subsection 12(5);
(c) the motion has been withdrawn or otherwise disposed of; or
(d) subsection 12(5A) has applied in relation to the Ordinance.
(2) Where:
(a) because of subsection 12(5A), an Ordinance is deemed to have been laid before a House of the Parliament on a particular day; and
(b) notice of a motion to disallow the Ordinance has been given in that House within 15 sitting days after that day;
no Ordinance containing a provision being the same in substance as a provision of the first‑mentioned Ordinance shall be made unless:
(c) the notice has been withdrawn;
(d) the Ordinance is deemed to have been disallowed under subsection 12(5);
(e) the motion has been withdrawn or otherwise disposed of; or
(f) subsection 12(5A) has applied again in relation to the Ordinance.
(3) If a provision of an Ordinance is made in contravention of this section, the provision has no effect.
(4) This section does not limit the operation of section 12AA or 12AC.
(5) In this section:
Ordinance includes a part of an Ordinance.
12AC — Disallowed Ordinance not to be re‑made unless resolution rescinded or House approves
If an Ordinance or a part of an Ordinance is disallowed, or is deemed to have been disallowed, under section 12, and an Ordinance containing a provision being the same in substance as a provision so disallowed, or deemed to have been disallowed, is made within 6 months after the date of the disallowance, that provision has no effect, unless:
(a) in the case of an Ordinance, or a part of an Ordinance, disallowed by resolution—the resolution has been rescinded by the House of the Parliament by which it was passed; or
(b) in the case of an Ordinance, or a part of an Ordinance, deemed to have been disallowed—the House of the Parliament in which notice of the motion to disallow the Ordinance or part was given has approved, by resolution, the making of a provision the same in substance as the provision deemed to have been disallowed.
12AD — Regulations, rules and by‑laws
(1) All regulations made under an Ordinance shall be laid before each House of the Parliament within 15 sitting days of that House after the day on which the regulations are made and, if they are not so laid before each House of the Parliament, have no effect.
(2) Subsections 12(4) to (6B), inclusive, and sections 12AA, 12AB and 12AC apply in relation to regulations lai
This is an opening excerpt, not the complete document.