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Australasian Parliamentary Review Autumn 2011, Vol. 27, No. 1

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Australasian Parliamentary Review Autumn 2011, Vol. 27, No. 1 Australasian Parliamentary Review Autumn 2011, Vol. 27, No. 1 FROM YOUR EDITOR Jennifer Aldred 1 ARTICLES 3 # A comparative analysis of rights scrutiny of bills in New Zealand, Australia and the United Kingdom: Is New Zealand lagging behind its peers? Catherine Rodgers 4 # Anti-corruption agencies: Impact on the privileges and immunities of parliament Carly Sheen 18 # Not quite as expected: Victorian Labor and the Legislative Council 2010 Paul Rodan 34 AUSTRALASIAN STUDY OF PARLIAMENT GROUP CONFERENCE 2011: THE EXECUTIVE VERSUS THE PARLIAMENT: WHO WINS? Parliament and the challenge of executive growth 44 Is the traditional role of parliament still valid in our society? Sonia Hornery 45 # Executive growth and the takeover of Australian parliaments Scott Prasser 48 Balancing the need for the executive’s right to govern against the necessity for parliamentary scrutiny 62 A new era of parliamentary reform Judy Spence 63 # Resisting executive control in Queensland’s unicameral legislature — recent developments and the changing role of the speaker in Queensland Kate Jones and Scott Prasser 67 Holding oppositions to account: the slow surrender of parliamentary democracy Jay Tilley 85 Diminishing the efficacy of disallowance motions: quasi-legislation in state jurisdictions Scott Hickie 91 # These papers have been double blind reviewed to academic standards The effects of non-government controlled upper houses on restraining the executive 108 # The impact of multi-party government on parliament-executive relations — examples from Britain and Germany Katrin Steinack 109 A case study from the South Australian Parliament Jordan Bastoni 126 # Restraints upon the agenda: policy making in Victoria 1982–1992 Alistair Harkness 134 Victorian perspectives 150 Cabinet confidentiality and parliamentary scrutiny in the information age Tony Lupton 151 Victoria’s dispute resolution committee and its implications for an effective bicameral system Philip Davis 158 Trends in public sector audit legislation: from federation to follow-the-dollar Des Pearson 174 Parliamentary committees and the scrutiny of the executive 178 Who cares wins: parliamentary committees and the executive Paul Lobban 179 The role of public accounts committees Jonathan O’Dea 191 # Prorogation and principle; the Gentrader Inquiry, government accountability and the shutdown of parliament Teresa McMichael 196 Redressing the imbalance: recent developments 207 Breaking down the barriers — when parliaments display leadership and the executive follows David Gibson 208 Pacific Island parliaments: developmental aspirations and political realities Graham Hassall 213 PARLIAMENTARY CHRONICLES 238 ‘From the Tables’ A round-up of administrative and procedural developments in the Australasian Parliaments — Robyn Smith 239 BOOK REVIEW 248 David Clune: The Fog on the Hill: How NSW Labor Lost its Way 249 © Australasian Study of Parliament Group. Requests for permission to reproduce material from Australasian Parliamentary Review should be directed to the Editor. ISSN 1447-9125 FROM YOUR EDITOR Jennifer Aldred As is customary with the Autumn issue of APR, this edition contains the proceedings of the Australasian Study of Parliament Group (ASPG) annual conference. In this case, the 2011 conference held in Melbourne in October titled ‘The executive versus the parliament: who wins?’. Conference sessions were broken into the following subject areas: ‘Parliament and the challenge of executive growth’; ‘Executive growth and parliament’s response: balancing the need for the executive’s right to govern against the necessity for parliamentary scrutiny’; ‘The effect of independents, minority/multi-party governments and non-government controlled upper houses on restraining the executive’; ‘Parliamentary committees and the scrutiny of the executive’; and, ‘Redressing the balance: recent developments’. As conference host, another session was devoted to Victorian perspectives, including the role of the state’s Auditor-General in executive oversight. On the question of ‘who wins’, this collection of papers offers the range of perspectives as wide as the subject is deep. For some, executive power has been pushed to — and, in some cases, beyond — its limits. For others, the unique role of parliament, its MPs on behalf of the electorate and its committee system all offer a brake on executive dominance over public policy and law making. The collection is a useful contribution to the debate on where accountability should sit. The inherent tensions between the functioning of both the legislative and executive branches of government, however, will ensure the debate will continue for some time to come. The final paper in the conference collection is by Graham Hassal who considers the oversight role of the executive within the context of Pacific Island parliaments. This is a very useful piece of work for those readers wishing to know more about the current situation within the region. It should be mentioned that two papers from the conference do not appear here but will be published in the Spring 2012 issue. One draws on significant research to pose questions of whether traditional views on how parliaments function match the Australasian Parliamentary Review, Spring 2011, Vol. 27(1), 1–2. 2 Jennifer Aldred APR 27(1) reality. The other looks specifically at the effectiveness of committee scrutiny of the executive in Queensland from 1966 to 2001. Readers should keep their eye out for both pieces in the next issue. Articles for this issue include two papers from the ANZACATT 2010 Parliamentary Law, Practice and Procedure Program. Prizewinner, Catherine Rodgers compares and analyses the rights scrutiny of bills in her own parliament — New Zealand — with that of the UK, the Victorian state parliament and Australian Senate. She concludes that, on balance, current arrangements in New Zealand are not adequate for ensuring that fundamental rights and freedoms are protected when making laws. Improved information flow and methods of engagement between the executive and the parliament are proposed as desirable changes to ensure New Zealand does not lag behind its peers. Carly Sheen also compares jurisdictions — NSW, Queensland and Western Australia — to compare and contrast those which have legislated for the creation of specialist anti-corruption agencies. Carly also considers the impact of these agencies, and the legislation governing their operation, on parliamentary privilege. Specific cases are examined. Our third article is by Paul Rodan. In this piece, Paul considers — through the experience of the 2006 and 2010 Victorian elections — whether 2003 reforms introducing proportional representation to the Legislative Council electoral system realised their intent. That intent was to more closely match votes won with seats secured. He believes they have not and develops the little-used notion of the ‘third- party preferred vote’ as a potentially useful tool in assessing proportionality on contests such as the Victorian Legislative Council. Robyn Smith’s ‘From the Tables’ provides it usual useful summary of administrative and procedural developments in the Australasian Parliaments. Thanks go to Robyn for the effort she puts into ensuring the accuracy and clarity of this information for all who use it. David Clune completes the edition with a review of the book by Frank Sartor ‘The Fog on the Hill: How NSW Labor Lost its Way’. Frank Sartor was a key player in the former NSW Government after leaving his position as Sydney’s Lord Mayor. The book is an insider’s view of the disintegration of the NSW government which governed the state from 1995 to 2010 and David’s review summarises its value for the reader. The journal’s relationships with publishers continue to grow, as will the flow of work reviewing new publications relevant to the APR’s readership. All reviews published in the APR appear also on the ASPG website at www.aspg.org.au. Readers are reminded to check the website regularly for a range of useful information on research and writings into the operation of our parliaments. ▲ ARTICLES Catherine Rodgers is Legislative Counsel, New Zealand Parliament A comparative analysis of rights scrutiny of bills in New Zealand, Australia and the United Kingdom: Is New Zealand lagging behind its peers?1 Catherine Rodgers Introduction This article considers two key mechanisms for rights scrutiny of bills in four parliaments: the New Zealand (NZ) parliament, the Australian Senate, the Victorian state parliament, and the United Kingdom (UK) parliament. The mechanisms which are discussed are: vetting of bills by the executive and examination of bills by parliamentary committees. Vetting is a process whereby the executive assesses bills to identify any rights issues that arise. In certain circumstances this process results in a report to the parliament on those issues. In the different jurisdictions under discussion different legal tests apply, including around when a report to parliament needs to be made. The Victorian and UK parliaments use both scrutiny mechanisms. The NZ parliament has a vetting requirement only. The Australian Senate does not have a legislative vetting requirement but has a specialist scrutiny committee which examines rights issues in bills. Both the vetting of bills by executives and rights scrutiny by committees, where these occur in the four jurisdictions, are examined. Questions of the adequacy of rights scrutiny of bills in NZ are then considered. Before doing so two matters of context warrant mention. First, rights
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