Canberra: An Over-Mighty Territory?
John Stone
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The nation's overgrown capital is more than nine times the minimum size originally envisaged. John Stone explains why-and how-it should be cut down to size

Developments in Canberra over the past 25 years or so have begun to raise an important constitutional issue, namely the increasing significance of the Australian Capital Territory (ACT) as a political entity within the federal Parliament, and whether that is appropriate within the framework of our federal constitutional arrangements.

The conferring of self-government upon the ACT in 1988-in the face of the clear wishes of its people twice expressed at referendums on the matter-followed the passage by the Hawke Labor Government of the Australian Capital Territory (Self-Government) Act 1988.1 Most of the Act's provisions came into force by proclamation on 11 May 1989.

The Act was the product of a number of developments, of which three are most relevant here:

• The achievement of self-government by the Northern Territory in 1978 2 had given rise to questions whether the same status should be accorded to the ACT, as the other significant Territory of the Commonwealth.
• The luxurious services enjoyed by ACT residents had led many observers to conclude that the only way in which those residents could be made to face up to financial disciplines was to impose self-government upon them and 'cut them loose' financially from the Commonwealth's bottomless purse (subject to appropriate transitional arrangements to cushion the shock).
• The population of the ACT, which had long since outstripped that of the Northern Territory, was continuing to rise the faster of the two; at the 1986 Census it was 258,900, compared with only 154,400 for the Northern Territory. This fact alone tended to give rise to the view that, if self-government was appropriate for 154,400 people in the Northern Territory, it must be equally appropriate for 104,000 more than that in the ACT. Although this view ignored the fact that the ACT is not just any 'other' Territory, but the Seat of Government for the federation, it nevertheless commanded superficial appeal.

Self-government has now been operating in the ACT for 14 years. The joke which it originally constituted has begun to wear thin, as the January 2003 bushfires and Mount Stromlo debacles so vividly, and so sadly, illustrated.

I am not referring merely to the more bizarre goings-on of the elected 'representatives' of the people of the ACT, which from time to time make headlines even in real Australia, or to the shifting coalitions in which they align and realign themselves. I am referring to problems of the kind which were well summed-up six years ago by an ACT departmental chief executive in his retirement speech. As reported the next day, Mr John Turner told a farewell gathering that 'the system of government adopted in the ACT was not working', and that 'the Legislative Assembly system was expensive and encouraged aggressive behaviour'.

'In retrospect', Mr Turner said, 'I believe setting up a State-type political system has not worked'. By comparison, 'a system like that of Brisbane's City Council . . . would operate more effectively'. In particular, 'we have not yet convinced many in the ACT community that financial sustainability and planned economic development are essential to maintaining our quality of life . . . '.3

The ACT and federal constitutional arrangements

Just as in the 1980s the conferring of self-government upon the ACT owed much to the facts that the Northern Territory already enjoyed self-government and that the population of the ACT already far outstripped that of the Northern Territory, so we shall face in future arguments along precisely the same lines about Statehood for the ACT.

Some 18 years ago the Legislative Assembly of the Northern Territory began a serious quest for Statehood.4

It used to be said that proposals for Statehood for the Northern Territory had much in common with proposals, chiefly from the same sources, for the Alice Springs to Darwin railway. Indeed, the two proposals did have this in common: when the day comes when it truly is economically sensible to build a railway from Alice Springs to Darwin, there is a fair chance that the economic and associated population development of the Northern Territory will have become such as to warrant a realistic appraisal of the case for Statehood for that Territory.

The Alice Springs to Darwin railway has recently been completed; but, interested parties aside, I know of no reputable studies demonstrating that the project will have been economically sensible. Nor, when the then Country Liberal Party government of the Northern Territory developed, some years ago, a proposal for Northern Territory Statehood, had the economic and associated population development of the Territory become such as to warrant that irresponsible venture. We may therefore all be grateful to those citizens who, in October 1998, voted in the Territory's referendum to defeat it.

It has, however, recently been reported that the Northern Territory's present Labor government has re-launched this Statehood enterprise, and that: 'On paper, it looks a sure thing this time. Self-government has now been operating in the ACT for 14 years. The joke which it originally constituted has begun to wear thin, as the January 2003 bushfires and Mount Stromlo debacles so vividly, and so sadly, illustrated.

The Country Liberal Party wants a State. The Aboriginal leadership [which was strongly opposed on the earlier occasion] . . . is 'very strongly' on side now. The federal ALP is behind her [Clare Martin, the Chief Minister].'5 More alarmingly, Ms Martin is said to have obtained, in a telephone call, the backing of Prime Minister John Howard.

The Northern Territory, which actually lost population in the year 2002 (and will lose one of its two seats in the House of Representatives at the next federal election as a consequence), is no more ready for Statehood today than it was five years ago. But while in the near future Northern Territory Statehood would be highly premature, at some distant date it may be appropriate for the Northern Territory to become the seventh State of the Commonwealth.

The problem then will be this: if the Northern Territory (which at 30 June 2002 had an estimated resident population of 198,013) can become a State, and possibly qualify for even more Senators than the two (too many) it enjoys at present, why should not the ACT (with an estimated resident population at the same date of 321,819) do likewise? Indeed, in an editorial some years ago, The Australian newspaper argued that, despite some problems which it enumerated, 'it still seems likely that once the ACT's population exceeds that of Tasmania' (472,725 at 30 June 2002), 'pressure for it to become a State will increase'.6

Now it is one thing for the Northern Territory to aspire to Statehood; it is quite a different thing for the ACT to do so. From a purely constitutional viewpoint, Statehood for the ACT would mean that the federal Seat of Government, which the drafters of our Constitution clearly saw as merely a piece of federal territory situated geographically within an Original State (New South Wales), would become a State in its own right.

Some of the problems to which this would give rise can already be seen in microcosm as a result of including the ACT within the Council of Australian Governments (COAG). Whereas that body was constituted by the State Premiers as a forum for discussion of State interests (including for that purpose the largely similar interests of the Northern Territory), the inclusion of the ACT involves the presence of an invariably centralist entity whose interests tend to line up with those of the Commonwealth. This is a point that State Premiers should seriously consider.
That point aside, what would be the effect upon the federal Parliament itself of such a development?

New States

Section 121 of the Constitution states that:

The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit.

Let us briefly consider what the extent of that 'representation in either House of the Parliament' might be. In doing so, bear in mind that, as a result of a whole sequence of events during the time of the Whitlam Government, the Commonwealth Electoral Act now provides that:

• the ACT and the Northern Territory are to be represented in the House of Representatives 'in proportion to their populations, population quotas being determined in the same manner as for the original States under s.48 of the Act, subject to the proviso that they each have at least one Member'.7
• Commonwealth Territories are to be represented in the Senate 'on the basis of one Senator for every two Members of the House of Representatives to which they are entitled, subject to the proviso that the ACT and the Northern Territory each have at least two Senators.'8

As noted earlier, at 30 June 2002 the Northern Territory had a resident population of 198,013 and the ACT a resident population of 321,819. At the same date the estimated resident population of Tasmania, which as an Original State of the Commonwealth has today 12 Senators and (by virtue of s.24 of the Constitution) five Members of the House of Representatives, was 472,725.9

Already, in the 1996 election, we saw the ACT acquire a third member of the House of Representatives. Although the subsequent electoral redistribution resulted in it losing that third seat again (to Queensland), experience over the past 40 years or so suggests that, in due course, not only will that third seat be regained, but also a fourth, and a fifth, and a sixth will in time be acquired, as the 'great wen' of Canberra continues its bloated expansion. With a sixth House of Representatives member will come a third Senator. By that time (or more likely, in advance of that time, depending upon the progress of the Northern Territory's claim for Statehood) we shall see demands for full Statehood.

From a federalist viewpoint, it is not acceptable that the ACT should become a State, on all fours either with the Original States of the Federation, or with such a new State (in due course) as the Northern Territory. Such an outcome would be akin to half a dozen federalist finches not merely rearing a centralist cuckoo in some kind of communal COAG nest, but then also devolving full finch status upon the overgrown intruder.

What can be done to prevent it?

Downsizing an over-mighty Territory

Recall the famous words of John Dunning's motion, passed in the House of Commons in 1780, that 'the influence of the Crown' (he was referring to George III) 'has increased, is increasing, and ought to be diminished'. In the same way-and for not wholly dissimilar reasons-it could also be said of the population of the ACT that it too 'has increased, is increasing' (to the point where it is already beginning to give rise to the question of Statehood), 'and ought to be diminished'.

While we cannot readily shrink the population of the present Australian Capital Territory, we can, if desired, shrink the present Australian Capital Territory so that most present ACT residents become, overnight, new residents of New South Wales.

Such a proposal raises three questions:

• First, is there any constitutional impediment to 'shrinking' the present ACT?
• Secondly, does the federal Seat of Government require an area the size of the present ACT to accommodate it?
• Thirdly, if, as I hope to show, it does not, is it possible to suggest a sensible 'redefinition' of the ACT by diminishing its present boundaries, thereby removing the problem which will otherwise loom for the Federation at some time in the future?

The constitutional requirement for the Seat of Government

To start at the beginning, s.125 of our Constitution reads, in part, as follows:

The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred miles from Sydney . . . Such territory shall contain an area of not less than one hundred square miles . . .

Nothing in my proposal questions the choice of Canberra, per se, as the site of the national capital. On the contrary, it conforms perfectly to the words of Bishop Heber's famous hymn, as a place where 'every prospect pleases, and only Man is vile'.

However, even so early as 1908 the then Commonwealth Government was already displaying in this area those megalomaniacal tendencies which, over the years, have so burgeoned. Although s.125 envisages that what we now call the Australian Capital Territory 'shall contain an area of not less than one hundred square miles', the Seat of Government Act 1908 provided in s.4 as follows:

The territory to be granted to or acquired by the Commonwealth for the Seat of Government shall contain an area not less than nine hundred square miles, and have access to the sea.

In the end, the area of the ACT (including the Jervis Bay area, which provided 'access to the sea') was finally determined at 937 square miles (or 2,428 square kilometres): in short, more than nine times the minimum size envisaged by the framers of our Constitution. Thus there is nothing in the Constitution that would prevent us 'shrinking' the ACT so long as the diminished Territory still exceeded 100 square miles (almost 259 square kilometres) in area.

The practical size required for the Seat of Government

Does the Seat of Government require an area the size of the present ACT to accommodate it? To address that question we might ask ourselves what we would define in Canberra today as 'essentials' of the Seat of Government. Let me suggest the following list:

• Government House at Yarralumla;
• the Parliament;
• for heritage reasons, presumably also the old (temporary) Parliament;
• the Prime Minister's Lodge (even though, quite rightly, John Howard has ceased to occupy it on a permanent basis);
• the area where at least most (and preferably all) foreign Embassies and High Commissions are located;
• and, if we define 'essentials' strictly, not much else.

Relaxing the strictness of that definition, we might also include some or all of the following:

• the Australian War Memorial (and Anzac Parade leading up to it);
• the American-Australian War Memorial at Russell Hill;
• the Defence complex in the same vicinity;
• the Royal Military College at Duntroon;
• the Australian Defence Force Academy in the same vicinity;
• Lake Burley Griffin and its immediate foreshores;
• possibly, the Canberra Railway Station at Kingston;
• possibly, Canberra Airport;
• possibly, Fairbairn RAAF base in the same vicinity;
• possibly also, because of their association with air traffic control into those latter, the areas of Mount Ainslie, Mount Majura and Russell Hill, whose summits all carry air navigation beacons; and
• possibly again, as the other 'summit' in the area, Black Mountain, with its major telecommunications tower.

As a kind of 'reality check'-incongruous though that phrase may sound in relation to Canberra-it is worth comparing the Canberra situation to that of Washington, DC.

In Washington, DC the White House, the Capitol Building which houses the Congress, the various foreign Embassies, and a good many of the major federal government offices are located in the District of Columbia-rather like my list of 'strictly essentials'.

As to my further list of 'not-so-strictly essentials', Arlington National Cemetery (perhaps the nearest thing the US has to our National War Memorial) is across the Potomac in the State of Virginia, as is the Pentagon. Union Station is in the District. Both the National Airport and Dulles International Airport are also across the Potomac, in what would otherwise be Virginia, although both are now included in areas specifically ceded to the District of Columbia.

By contrast, Andrews Air Force Base, from which the President departs in Air Force One, is in the State of Maryland. West Point Military Academy is some 230 miles away in the State of New York. Moreover, although the Treasury, the State Department, the Supreme Court and the Federal Reserve buildings are all located in the District of Columbia, many other very significant federal government offices are located outside it, including not only the Pentagon but also the Central Intelligence Agency (at Langley, Virginia).10
In short, the Washington, DC comparison demonstrates convincingly that in by far the greatest federation in the world it has not been found necessary to enclose all the activity associated with the Seat of Government within federal territory.

Incidentally, in laying down the appropriate size of the Seat of Government as 'not less than one hundred square miles', our constitutional founding fathers (who in so many other respects also drew heavily on the US constitutional model) would have had well in mind the fact that, when initially laid out in 1791, the District of Columbia was exactly 10 miles square-that is, 100 square miles. Instead of expanding to over nine times the size originally envisaged, however, the District of Columbia today is actually smaller than initially designated-some 69 square miles.11

One other aspect of this 'reality check' against the District of Columbia is that at the 2000 US Census, the resident population of the District was some 0.20% of the total US population at that time.12 By contrast, the estimated resident population of the ACT at 30 June 2002 was some 1.64% of the estimated resident population of Australia at that time13-some eight times the comparable District of Columbia proportion.

So the answer to the question-does the Seat of Government require an area the size of the present ACT to accommodate it?-is clearly and overwhelmingly in the negative. Moreover, anyone familiar with the general layout of Canberra will know that everything I have listed both as 'strictly essential' and as 'not-so-strictly essential' could be easily accommodated within an Australian Capital Territory of no more than the 100 square miles which the Constitution requires.

A specific proposal for 'shrinking' the ACT

Is it possible to suggest a sensible 'redefinition' of the ACT, diminishing its present boundaries to something more nearly approaching 100 square miles, while retaining all those strictly and not-so-strictly essential elements? And how would it be done?

The relevant section of the Constitution is s.123 (Alteration of Limits of States); clearly, any diminution in the present area of the ACT would involve a small alteration (increase) in the present area of New South Wales. Section 123 is as follows:

The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected.

There is therefore no constitutional hindrance to prevent the restoration to New South Wales of most of that territory (including the Jervis Bay area) which it originally agreed to cede to the Commonwealth. Note that, because the ACT is not a State, no such 'approval of the majority of the electors' of the ACT itself would be required-merely the consent of the Parliament of New South Wales, and the approval of the majority of New South Wales electors voting upon the question by way of referendum.

The answer to the question-does the Seat of Government require an area the size of the present ACT to accommodate it?-is clearly and overwhelmingly in the negative.

Drawing the map

In selecting an area, in my detailed proposal below, of just over 100 square miles for a redefined ACT containing my two lists of essential and not-so-essential (but desirable) features, I am not suggesting that this would be the only sensible possibility, but simply demonstrating the practicability of performing the required redefinition. Bearing in mind the overall objective of the exercise, the 'new ACT' should also be drawn so as to contain as few residents as possible.

• Some seven suburbs only (Barton, Deakin, Forrest, Griffith, Parkes, Red Hill and Yarralumla) would include everything (except, possibly, one or two of the smaller Embassies) enumerated on my 'strictly essential' list.
• Those suburbs, together with eight others (Acton, Campbell, City, Duntroon, Kingston, Majura, Reid and Russell) would include everything (except Black Mountain) enumerated on both my 'strictly essential' and 'not-so-strictly essential' lists.
• Including Lake Burley Griffin, those 15 suburbs would cover an area of almost 129 square kilometres, of which Majura accounts for over 70% (see Table 1 overleaf).

To ensure that the 'new ACT' was not less than 100 square miles (almost 259 square kilometres) in area, another 130 square kilometres would be needed:

• Inclusion of the Black Mountain Nature Reserve area (including the telecommunications tower) and the adjoining area (north of the Molonglo River) bounded by William Hovell Drive and Coppins Crossing Road would complete my list of 'not-so-strictly essentials'. To this we might also add the small area to the west of Yarralumla, between the Cotter Road and the Molonglo River, and bounded to the west by Coppins Crossing Road and Uriarra Road.
• Extension of the resulting area east to the ACT/NSW border, and 'filling in the gaps' would result in the addition of a further eight suburbs (Fyshwick, Harman, Jerrabomberra, Kowen, Narrabundah, Oaks Estate, Pialligo and Symonston) and would raise the total area to above the 259 square kilometres mark (see Tables 1 and 2 overleaf and map below).

Table 1

(a) Neither Jerrabomberra nor Majura are now separately defined for enrolment purposes by the Australian Electoral Commission (Jerrabomberra proper is mainly in New South Wales). The resident population numbers in each case are, however, very small, and the number of electors would be even smaller.
(b) Excluding Jervis Bay

Table 2

(a) Statistical Local Area (SLA) 8829. This is the area adjoining Yarralumla and extending west, between the Cotter Road and the Molonglo River, until bounded by Uriarra Road and Coppins Crossing Road.
(b) Part of Statistical Local Area 0549 (Balance of Belconnen Statistical Sub-Division), including Black Mountain Reserve (and the telecommunications tower), and the adjoining area (north of the Molonglo River) which is bounded by William Hovell Drive and Coppins Crossing Road. (To the south, this adjoins SLA 8829-see (a) above.) The total area of SLA 0549 is 65.7 sq.kms and its total resident population at 30 June, 1995 was 47.
(c) See (b) above.
(d) Negligible.
(e) Plus Black Mountain Nature Reserve and adjoining area-see (b) above.

As at 30 June 2002 the estimated resident population of this 'new ACT' was approximately 31,900, and as at 26 August 2003 there were only about 21,800 persons enrolled in the area.14

The remaining 289,900 people estimated to be resident in the ACT at 30 June 2002 would become, overnight, new citizens of New South Wales. Since these citizens enjoy, on average, high incomes by comparison with those of any State of Australia, their addition to the population of New South Wales, far from burdening that State, could only be of advantage to it. They would, of course, need to be constituted by that State into appropriate local authority areas, including (as necessary) new ones. That should not present any great difficulties to the NSW authorities.

So far as federal parliamentary representation is concerned, the 'new ACT' would revert to the pre-1984 arrangement with no Senators, and just a single member in the House of Representatives who could vote only on issues directly affecting the Territory.15 As a result of its overnight gain in population, NSW would gain an extra two members in the House of Representatives.

It is one thing to establish that a proposal is desirable, but what of its feasibility?

It is hard to see why any Commonwealth government, whatever its political persuasion, should wish to enhance the status of the ACT. It is equally hard to see why any NSW government should object to the proposed enhancement both of the wealth of that State and its political standing in the House of Representatives, or why the people of NSW should oppose that either.

The proposal's consummation requires agreement, in the first instance, between a federal government and its NSW counterpart. Preferably (though not necessarily) that agreement would be between two leaders from opposite sides of the political fence, but possessing the breadth of vision needed to set aside their other differences to further the national interest.

Out of the question? As it happens, we now have in Mr Howard and Mr Carr two leaders with some claim to fitting that description, as witness their agreement on (among other things) security and border protection matters. So why shouldn't both of them book a place in the history books on this one? All they need is the will to do so.

Endnotes
1 Act No. 106 of 1988.
2 By the Northern Territory (Self-Government) Act 1978.
3 The Canberra Times (4 February 1997).
4 'On 28 August 1985, the Legislative Assembly of the Northern Territory of Australia established the Select Committee on Constitutional Development. The original resolutions were passed in conjunction with proposals then being developed in the Northern Territory for a grant of Statehood to the Territory within the Australian federal system . . . ': Introduction to the Final Draft Constitution for the Northern Territory: Sessional Committee on Constitutional Development, Legislative Assembly of the Northern Territory (August 1996).
5 The Weekend Australian (28-29 June, 2003)
6 The Australian (6 June 1996).
7 House of Representatives Practice, 2nd ed., 1989, p.169.
8 As above.
9 Australian Bureau of Statistics (ABS), Australian Demographic Statistics, ABS Catalogue No.3101.0 (Canberra: ABS, 8 June 2003).
10 I am indebted for many of these facts to the U.S. Information Service Research Centre, Canberra, whose courteous assistance is gratefully acknowledged.
11 'Initially laid out as a 10 mile square, the District extended across the Potomac, occupying lands ceded in 1791 by Virginia and Maryland. In 1846 the portion given by Virginia-including the city of Alexandria and what is now the urban county of Arlington-was returned to the State, and the District thereafter comprised only the former Maryland territory on the north bank of the river.' Encyclopaedia Americana, International Edition (1994), pp.192-3.
12 www.census.gov/census/census2000/states/us.html. It is also interesting to note that at the 2000 US Census, one State, Wyoming, had a population (493,782) appreciably smaller than that of the District of Columbia (572,059). Notwithstanding that fact, and quite rightly, Wyoming, like each of the other 49 States, has two Senators in the US Congress (and its population-based share of Members of the House of Representatives), while the District of Columbia is represented in the House of Representatives (only) by a Delegate (not a Member) entitled to speak, and to vote in Committees, but not entitled to vote substantively on the floor of the House.
13 ABS, Australian Demographic Statistics, (see n.9).
14 Figures supplied by the Australian Electoral Commission, whose assistance is gratefully acknowledged.
15 This was the role performed for many years by the then Member for Canberra, the late Jim Fraser, after whom the current ACT seat of Fraser is named.

The author
John Stone was Secretary to the Commonwealth Treasury (1979-84) and a Senator for Queensland (1987-90). He is a principal founder of The Samuel Griffith Society and editor and publisher of its Proceedings, Upholding the Australian Constitution (www.samuelgriffith.org.au), where an earlier version of this article first appeared.

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