December 30

Prorogue, then intimidate


Note: This column has been revised. In it I come to the conclusion that notwithstanding the prorogation of the session of the Parliament, the inquiry  under an upper house  committee chaired by the Rev. Fred Nile MP into the sale of the NSW  electricity stations can lawfully proceed and that the proceedings of the committee are privileged.

Although the elections in New South Wales are not until 26 March 2011, this final session of the 54th Parliament was prorogued on 22 December, 2010 by the Governor, Professor Marie Bashir, acting on the advice of the Premier, the Hon. Kristina Keneally.

According to Alexandra Smith in The Sydney Morning Herald, “Turn off: Keneally blocks probe into power sale by closing parliament “ 22/12, the government believes  this would have the result that committees cannot hold hearings before the election, especially the planned Legislative Council inquiry into the government's controversial $5.3 billion sale of the State's electricity assets.

This is doubtful for reasons set out below.

…electricity sales inquiry…


The announcement of the sale had led to the resignation of eight of the 11 board members of state-owned companies Eraring and Delta Electricity.


 It was anticipated that those former board members would be called to a hearing of the inquiry. Their testimony could have been embarrassing the government.

While attempts are being made to open the inquiry, witnesses would be advised by their lawyers to give no or limited co-operation. This is because of the fear that the hearings may not be privileged, leaving witnesses open to defamation actions.  Hence The Sydney Morning Herald editorial (29/12), “Prorogue, then intimidate

Ms. Smith said that in a bid to stave off expected criticism of its timing, the government's statement highlighted other occasions when Parliament was prorogued well before an election.

This included the prorogations on 7 December, 1994 before the 1995 election and 31 January before the 2003 election.

 The Opposition had planned to reveal the details of the inquiry that very day including the proposed terms of reference and the expected t date of the first meeting. This was said to have been as early as 10 January 10. The inquiry had the support of the Greens and the Christian Democrat MP Fred Nile.  Ms. Smith said this meant the inquiry could have started as soon the procedural issues had been resolved.
 Mr. Nile says the inquiry began before the prorogation.
Moreover, Parliament was not expected to be prorogued until late February, according to the official calendar on the NSW Parliament’s website. 

But as Ms. Smith said, the government will have the benefit of not being in caretaker mode until the writs for the election are issued after 4 March 2011, which means the Premier can still make major policy announcements.

…the Governor…

The question is being asked whether the Governor should have granted the request. Constitutionally there will be occasions when advice to prorogue should be considered by the Governor under her reserve powers, that is where her decision is her own.

Such an occasion would arise if the Premier were seeking to close down the Parliament to avoid a vote of no confidence. This arose in Canada in 2008, where the Governor General exercised her powers in favour of the Prime Minister after a two hour meeting at Rideau Hall, her official residence.

…Canadian precedent…

There the minority government of the Prime Minister, the Rt. Hon. Stephen Harper PC MP, had been threatened with a vote of no confidence on the floor of the House of Commons.

The opposition Liberal and New Democratic Parties had signed an agreement to form a coalition government, and the Bloc Québécois has agreed to support the coalition on confidence issues.

The session was prorogued by a Royal Proclamation, in both the English and French languages, made under the authority of the Canadian Crown on 4 December 2008. 

It was not for long at that time of the year, a factor which was no doubt taken into consideration by the Governor General in making her decision. The new session was to begin  on 26 January, 2009.

(For the text of the Proclamation and for more details, see this column: “Royal solution to the Canadian political mess: an Antipodean view” 7 December 2008.)


..assessing  the prorogation…

[ Continued below]

The Proclamation was made not under a specific provision of the Canadian written constitution, the Constitution Act, 1867, nor under an act of parliament. It was made under the Royal Prerogative.

At the time I made four points:

First, if this is a crisis it is political, and certainly not constitutional. Indeed, rather than a crisis, it is more of a mess made by politicians acting instinctively as they do all around the world, attracted to the scent of and addicted to power.

Second, the Canadian Crown will play the key role in ensuring a constitutional solution to this crisis among the politicians.

Third, the powers of the Canadian Crown will be exercised by the Governor General ( no hyphen is used in Canada in contrast to the Australian Governor-General).

Fourth, the Governor General is above politics because of the crucial fact that she is appointed by, and owes her allegiance to the Sovereign – and through Her as a trustee for the people.  She does not owe any allegiance to the politicians who may have recommended her appointment, or to the particular party to which the politician belongs.  Nor is she a politican seeking her own reelction or obsessed by the ideas of mandate or political agenda.


In brief, I said, Governors General cannot have a mandate or a political agenda.  

The Crown, I said, would ensure the continuing peace order and good government of Canada according to fundamental constitutional principles in a way few systems can ensure.  And any necessary transition of power will be remarkably smooth.

I then made the point that if the opposition coalition and Bloc Québécois support held together until 26 January – “and there is some doubt about that – the government will be defeated in a vote of no confidence.”

As we reported here on 30 January, 2009 , “Canadian crisis evaporates”  they did not hold together.

…New South Wales in 2010 & 2011…


The power to prorogue in New South Wales is governed by the Royal Prerogative, subject to certain provisions in the Constitution relating to a vote of no confidence. Those provisions are not relevant in this case.

Dr  Anne Twomey has put the view that an exercise of the  reserve powers did not seem to arise in this NSW case; I agree.

The crucial question here is whether the committee of inquiry in to the power sales can continue. The chairman the Rev.Fred Nile indicates it will.

According to the Herald editorial on 29 December, “Prorogue, then intimidate, “Ms. Keneally is warning potential witnesses that they cannot be compelled to appear before the committee. If they do, anything they say would not be afforded the normal parliamentary privilege from legal action.

The Herald says this is based on legal advice about a prorogation 16 years ago when the  Crown solicitor opined that committees could not function after a prorogation.

But the Clerk of the Legislative Council, Lynn Lovelock, has advised the committee chairman, the Rev.Fred Nile, that the 1994 advice was ''restrictive'' and that hearings could proceed.

The editorial also says changes to the Standing Orders in 2004 may also render this advice obsolete. Standing Order 207 now provides such committes "have power to sit during the life of the Parliament".  (Once approved by the Governor. Standing Orders "become binding and of force" under section 15 of the Constiution Act, 1902 (NSW).)

As the Standing Orders now  clearly provide, a committee can still sit after a session has been prorogued, it is difficult to see why its proceedings are not protected by privilege under Article 9 of the (English) Bill of Rights (1688).

The Bill of Rights is preserved in New South Wales by the Imperial Act Application Act, 1969. 

Article 9  provides: "That the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament."

Absent an express legislative provision exempting  meetings of a committee  when Parliament is not sitting, Article  9 surely applies.  

And even if the hearings were not protected by parliamentary privilege, as the Rev. Fred Nile  says,  who would be the plaintiff in an action.

" Is it seriously suggested the Premier would sue for defamation?"  he asked during an interview with Radio 2GB on 29 December.

In any event the Standing Order would appear to settle the matter.

…Premier's slender reeds…

in the meantime, the President of the Council , Amanda Fazio, was said to be “doubtful, and wants more advice.”

The Herald says she could  deny staff and resources to the inquiry. But surely this would be improper if the Committee can still lawfully sit.

Ms. Fazio is herself in some difficulty, at least in the political sense. She has been suspended from the Labor Party for voting against the party line on what the Herald descibes as “ a vote on porn shops."

“To such slender reeds does Keneally cling,” concludes the newspaper.




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