Process? What process? A brief history of federal veto powers

As Immigration Minister Alex Hawke ponders whether to use his power to override a Federal Court ruling over Novak Djokovic’s visa, it raises a larger question: what is the point of procedure if the federal government can do what it wants anyway? 

The Coalition, despite masquerading for “can-do” capitalism and government that largely stays out of people’s lives, is quick to step in when there’s a decision it doesn’t like. But it’s not just the Liberals and Nationals. Labor has used its veto powers too. 

Research grants

On Christmas Eve, acting Education Minister Stuart Robert vetoed six projects recommended for funding by the Australian Research Council. Applying for ARC funding is onerous. An application must be submitted and assessed by relevant scholars, ranked, and then appraised by selection and eligibility committees made up of experts. 

All the canned projects were in humanities, ranging from studies on how climate shaped the Elizabethan theatre, memory politics in modern China and narratives under Chinese President Xi Jinping. Robert said they did “not demonstrate value for taxpayers’ money nor contribute to the national interest”. 

The decision has outraged many prominent academics who have added their names to a petition to reverse Robert’s decision. Australian National University senior lecturer in English Julieanne Lamond called the veto a “shocking waste of time and money” that could lead to researchers losing their jobs. 

Four years ago former education minister Simon Birmingham knocked back 11 humanities applications recommended by the ARC. 

Overriding official recommendations based on expert assessments and a rigorous elimination process to fund projects better aligned with the government’s objectives (i.e. scoring votes) is not new. It was used in a series of pork-barrelling controversies, ranging from the Nats’ Bridget McKenzie’s sports rorts to Labor’s 1993 whiteboard saga.

International agreements 

In December 2020 the government passed foreign veto laws, giving the foreign affairs minister the power to cancel agreements with overseas governments made by states, territories, councils — and universities. 

Universities must report current and future agreements with foreign government bodies, which include agreements made with foreign universities controlled by governments. The legislation has been criticised as being too complex to be applied to universities, and experts warned the new powers should be used carefully. 

There were major concerns 13 Confucius Institutes developed in partnership with Chinese universities would be in jeopardy, but so far just one has shut down due to funding cuts.

By April 2021, the powers had been used by Foreign Affairs Minister Marise Payne to cancel two deals between the Victorian government and China’s controversial Belt and Road Initiative agreement.

Same-sex marriage 

The ACT government was making moves to legalise same-sex marriage well before the expensive and controversial 2017 national mail plebiscite, attempting to pass civil unions and marriage legislation in 2007 and 2011. Both times it was shut down, either by the threat of veto or veto, by Labor leaders using Commonwealth veto powers.

This fight against territories’ rights centred around human rights issues; in 1997 the Howard government vetoed the Northern Territory’s euthanasia legislation.

Commonwealth veto powers were slammed as being “undemocratic, 19th-century colonial-style” powers by former ACT attorney-general Simon Corbell and were removed in 2011 after a push from the Greens, but territory law can still be contested through a vote in federal Parliament.

NT infrastructure

The Northern Australia Infrastructure Facility Act 2016 is federal legislation to provide cash to help the Northern Territory develop its economic infrastructure. As it’s the government providing the money, the government can decide where it should or shouldn’t go. 

In May last year, then-resources minister Keith Pitt vetoed a decision by the expert Northern Australia Infrastructure Facility to provide $280 million in government funding to a wind and battery hub in northern Queensland. He said it would be “inconsistent” with the government’s policies, i.e. inducing climate change. 

What protections are there?

When it comes to cash, the government has the final say on where taxpayers’ dollars are spent. But since the overhaul of the Commonwealth veto powers, states and territories have largely held on to their autonomy. Despite premiers clashing with Prime Minister Scott Morrison, he can’t overrule a premier’s decision without a federal Parliament vote (although it can persuade them behind closed doors in the national cabinet).

Should the federal government keep its nose out of territories’ laws? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name if you would like to be considered for publication in Crikey’s Your Say column. We reserve the right to edit for length and clarity.