The Westminster system came to Australia with self government which the British granted to most states over 150 years ago. Under this, government is accountable to Parliament and thus to the people, as it should be.
One of the ways in which accountability is ensured is through inquiries.
It is desirable that any inquiry have the power to compel the production of documents and the attendance of witnesses to give evidence. Equally the proceedings should be protected -or “privileged”.
This means, for example, that actions for defamation should not be available or readily available against what is said there or contained in a report. In addition actions for breach of confidence in relation to documents produced should not be available.
Royal Commissions and parliamentary inquiries will normally enjoy these powers and are protected, that is privileged.
…and in New South Wales…
A major current issue in New South Wales is about the inquiry into the government’s $5.3 billion power station sale by a Legislative Council Committee chaired by the Rev. Fred Nile. (In an ACM conversazione on hung parliaments in September 2010, and in answer to a question on the difficulties independent MP's experience with the parliamentary agenda, Dr. Anne Twomey observed that Mr.Nile has an extraordinary ability in being able to cover an unusually wide range of issues.)
The question is whether this inquiry can proceed now that Parliament has been has been prorogued, and if it can, whether it is empowered to compel the attendance of witnesses and the production of documents, and is privileged: (see this column “Prorogue, then intimidate,” 30 December 2010 )
Prorogation once brought Parliament to a halt. An exception had to be made for judicial proceedings in the House of Lords. and other exceptions were gradually made. This can be done by statute, and some argue, as we have, by standing orders.
There was a time once when Parliament was dissolved on the death of a monarch. This today would serve no good purpose.
Should prorogation stop inquiries?
[Continued below ]
When there were allegations that around $5 billion dollars had been lost in the management of the federal government’s Building the Education Revolution ( “BER”) , the government appointed an inquiry under Brad Corgill.
This was criticised at the time because the inquiry could not compel the attendance of witnesses or the production of documents, and it could give no protection to witnesses.
The opposition has foreshadowed the appointment of a Royal Commission if they are called to form a government.
… $5.3 billion power sale inquiry…
On 22 December 2010 the Governor of New South Wales, acting on advice, prorogued the Legislative Assembly until 4 March 2011 and the Legislative Council. In my view the Governor acted correctly; an exercise of her reserve powers would not have been constitutionally justified asthey were recently in Canada.
On the next day, following earlier discussions and negotiations, a standing committee of the Legislative Council indicated that it was inquiring into and reporting on certain aspects of the Government Energy Reform Strategy involving the s $5.3 billion power sale ( the "Gentrader Transactions lnquiry").
This is to include details of the energy reform transactions completed on 14 December 2010 and announced the following day, the circumstances leading to the resignation of the directors of Eraring Energy and Delta Electricity, and the impact of the transaction on electricity prices, competition in electricity market and the value obtained for NSW tax payers.
The committee has invited written submissions by 14 January 2011 and indicated it will conduct public hearings on 17 and 18 January 2011.
..illegal or unconstitutional?…
The Premier initially said any meetings of the committee would be illegal. She referred to an opinion from the Crown Solicitor given in 1994 which the Clerk to the Legislative Council said was “too restrictive”.
In a legal opinion to the Leader of the Opposition, Barry O’ Farrell, Arthur Moses SC and Professor Patrick Keyser agree with the Clerk. They also warn that the the Premier’s reported comments have an inherent tendency to deter witnesses from participating in the Inquiry and may result in a contempt of Parliament.
On 3 December the Premier, Kristina Keneally released an opinion form the Crown Solicitor, Mr. Ian Knight. He confirms his earlier opinion.
In brief this is that the extent to which Standing Order 206 purports to authorise a standing committee to sit while the House is prorogued, it is invalid.
This, he says, is because it is not a standing order for the "orderly conduct" of the Legislative Council authorised by s. 15(1)(a) of the Constitution Act, 1902.
Although Mr. Knight's opinion is detailed and well argued, it is in myview this is too restrictive an interpretation of the constitution. This is especially so in the light of court decisions which increasingly acknowledge the accountability of government to the Parliament as a whole and thus to the people.
These cases include the unanimous decision of the High Court in Lange v ABC (1997) and two decisions relating to the NSW Legislative Council, the decision of the High Court in Egan v. Willis (1998) and the decision of the New South Wales Court of Appeal in Egan v. Chadwick (1999).
Without going into detail, the clear trend of these is to endorse accountability.
..and in the US?…
In our system, governments are accountable. Although the principle was still evolving, the US adopted the same principle at its foundation. In the United States v Richard Nixon (1974) , the President’s lawyer famously but unsuccessfully argued
“The President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.”
The President had claimed executive privilege in relation to tapes of White House conversations relevant to the Watergate affair. The Supreme Court rejected that proposition, unanimously.
….and the Supreme Court?…
In their opinion, Mr. Moses SC and Professor Keyser say that the appropriate and responsible course is for the Government to seek a declaration from the Supreme Court of NSW to state the law on the issue and to determine unequivocally whether the proroguing of the Parliament has had the legal effect which the Premier has asserted.
They say that:
“A binding determination by the Supreme Court of NSW is preferable to the uncertainty of competing legal advices being debated in the public arena.”
Mr. Nile indicates that he will not be seeking declaration, and that he will proceed. As did Mr. Corgill.
The Parliament and the people are entitled under the Westminster system to hold the government accountable. This is a universal principle applicable to governments of all persuasions. If a declaration is not her made, or if it is unfavourable, the next Parliament should decide clarify the issue.