Australasian Parliamentary Review JOURNAL OF THE AUSTRALASIAN STUDY OF PARLIAMENT GROUP Editor: Rodney Smith, Professor of Australian Politics, University of Sydney Representative Democracy Under Pandemic Aboriginal Voting Power Australian Upper Houses SPRING 2019/AUTUMN 2020 • VOL 34 NO 2 • $A35 2 AUSTRALASIAN STUDY OF PARLIAMENT GROUP (ASPG) AND THE AUSTRALASIAN PARLIAMENTARY REVIEW (APR) The APR is the official journal of ASPG, which was formed in 1978 for the purpose of encouraging and stimulating research, writing and teaching about parliamentary institutions in Australia, New Zealand and the South Pacific (see back page for Notes to Contributors to the journal and details of AGPS membership, which includes a subscription to APR). To know more about the ASPG, including its Executive membership and its Chapters, go to www.aspg.org.au AUSTRALASIAN PARLIAMENTARY REVIEW Editor: Professor Rodney Smith, University of Sydney. Email: [email protected] EDITORIAL BOARD Dr Peter Aimer, University of Auckland Professor Graeme Orr, University of Queensland Jennifer Aldred, Public and Regulatory Policy Dr Harry Phillips, Parliament Consultant of Western Australia Dr Dr David Clune, University of Sydney Stephen Redenbach, Dr Ken Coghill, Monash University Parliament of Victoria Professor Brian Costar, Swinburne University of Dr Paul Reynolds, Parliament Technology of Queensland Dr Jennifer Curtin, University of Auckland Kirsten Robinson, Parliament Dr Gareth Griffith, NSW Parliamentary Library of Western Australia Professor John Halligan, University of Canberra Kevin Rozzoli, University of Sydney Associate Professor Graham Hassall, Victoria Professor Cheryl Saunders, University of Melbourne University of Wellington Emeritus Professor Marian Sawer, Australian National Dr Richard Herr, University of Tasmania University Dr Michael Hogan, University of Sydney Professor Marian Simms, Deakin University Professor Bryan Horrigan, Monash University Dr Robyn Smith, Parliament of the Northern Territory Professor Helen Irving, University of Sydney Dr David Solomon, former Queensland Integrity Commissioner Dr Rosemary Laing, Australian Senate Dr Katrin Steinack, University of Melbourne Adjunct Professor Colleen Lewis, Monash University Dr Elaine Thompson, University of New South Wales Dr Clement MacIntyre, University of Adelaide Wayne Tunnecliffe, Parliament of Victoria Dr Isla Macphail, Parliament of Western Australia Professor Anne Twomey, University of Sydney Professor Raymond Miller, University of Auckland Dr June Verrier, former Head, Australion Parliament Information and Research Services Professor George Williams, University of New South Wales Australasian Parliamentary Review SPRING 2019/AUTUMN 2020 • VOL 34 NO 2 Table of Contents From the Editor Rodney Smith 5 ARTICLES 6 Parliament in a Time of Virus: Representative Democracy as a ‘Non-Essential Service’* Stephen Mills 7 Socially Distant but Democratically Together: Towards a Virtual Parliament in NSW The Hon. Jonathan O’Dea MP 27 Polling in a Pandemic: Electoral Dynamics, Administration and Law* Graeme Orr 54 Electoral Administration and Aboriginal Voting Power in the Northern Territory: Reality and Potential Viewed from the 2019 Federal Election* Will Sanders 71 Independents in Tasmania’s Legislative Council: Analysing strategies to achieve influence* Kate Crowley and Joshua Lippis 101 Room for Improvement: The Quality of Debate in Upper Houses in Australia* Patrick O’Brien 121 BOOK REVIEWS 141 Australia’s Human Rights Scrutiny Regime. Democratic Masterstroke or Mere Window Dressing?, by Adam Fletcher. Carlton: Melbourne University Press, 2018. pp. 427, Paperback RRP $49.99. ISBN: 9780522874105 Jennifer Norberry 142 4 Dead Man Walking: The Murky World of Michael McGurk and Ron Medich, by Kate McClymont with Vanda Carson. Melbourne: Vintage Australia, 2019. pp. 400, Paperback RRP $34.99. ISBN: 9780143795247 David Clune 147 * Indicates that the article has been double-blind reviewed. AUSTRALASIAN PARLIAMENTARY REVIEW 5 From the Editor Rodney Smith Professor of Australian Politics, University of Sydney Covid-19 is affecting everyone, directly or indirectly, in many ways. It has become central to our public discourse and our private imaginings. As the pandemic persists, scholars and practitioners are reflecting increasingly seriously on its profound implications for social, economic and political life. In that vein, the Australasian Parliamentary Review is pleased to present three detailed analyses of the effects of the pandemic on representative democracy. In the first, Stephen Mills criticises the ‘growing capacity and willingness’ of Australian governments ‘to govern without Parliament, and an acquiescent Parliament unable to define a more assertive role for itself’. He argues that Parliament must be allowed to pursue its traditional roles in response to the coronavirus crisis. In the second article, the Hon. Jonathan O’Dea, Speaker of the NSW Legislative Assembly, makes a similar case for keeping Parliament operating and promotes the possibility of a ‘virtual’ NSW Parliament, reviewing virtual parliamentary experiences from a range of other jurisdictions in Australia and internationally in support. The third article, by Graeme Orr, teases out the knotty administrative, political and legal issues raised by efforts to hold, modify, postpone or abandon elections while the pandemic continues. Again, his article includes evidence from a range of jurisdictions across the world. Elsewhere in this issue, Will Sanders presents a thorough and insightful analysis of the dynamics of Aboriginal voting in the Northern Territory over recent decades, arguing that Aboriginal enrolment and turnout figures point to a ‘potential Aboriginal electoral power that is as-yet unused’. The articles in this issue conclude with two discussions of Australian State upper houses. Kate Crowley and Joshua Lippis draw on extensive interviews and other evidence to shine light on the previously under-explored legislative and policy influence of Independent Members of the Tasmanian Legislative Council. Finally, a lively article by Patrick O’Brien suggests some possible direct and indirect measures to improve the quality of debate in State upper houses. As these articles suggest, the Australasian Parliamentary Review is keen to publish articles on a range of topics related to Parliament and representative democracy more generally, and is keen to address critical issues of the day in a timely fashion where possible. VOL 34 NO 2 SPRING 2019/AUTUMN 2020 6 Articles AUSTRALASIAN PARLIAMENTARY REVIEW 7 Parliament in a Time of Virus: Representative Democracy as a ‘Non-Essential Service’* Stephen Mills1 Honorary Senior Lecturer, School of Social and Political Sciences, University of Sydney * Double-blind reviewed article. Abstract The emergency response to the COVID-19 pandemic in Australia saw an unprecedented expansion of the authority of the executive at the expense of Parliament. Using emergency powers and the innovation of a ‘National Cabinet’, the executive managed the crisis response, while the Federal Parliament was reduced to an unrepresentative ‘rump’ and then adjourned for twenty weeks. This eliminated or substantially compromised Parliament’s ability to perform its principal functions of representation, executive legitimisation, authorisation, deliberation and accountability. In the event, Parliament was recalled earlier than planned, albeit on a limited and truncated basis, and a Senate Select Committee was established to provide scrutiny of the executive’s pandemic response. Yet the overall crisis response demonstrated a growing capacity and willingness of the executive to govern without Parliament, and an acquiescent Parliament unable to define a more assertive role for itself. The COVID-19 response surrendered key features of Australia’s system of parliamentary democracy, posing troubling questions for the Australian system of representative democracy. Some measures are proposed to revive a role for Parliament in a time of crisis. 1 This is an expanded and revised version of an article entitled ‘”Where No Counsel is, the People Fall”: Why Parliaments Should Keep Functioning During the Coronavirus Crisis’, published in The Conversation on 27 March 2020. It can be accessed at: https://theconversation.com/where-no-counsel-is-the-people-fall-why-parliaments- should-keep-functioning-during-the-coronavirus-crisis-134772. The author is grateful for the comments of two anonymous referees. VOL 34 NO 2 SPRING 2019/AUTUMN 2020 8 INTRODUCTION Australia’s response to the COVID-19 pandemic was directed and coordinated by a committee of first ministers of the Commonwealth, states and territories, gathered under the title of a ‘National Cabinet’. Activating emergency powers, the governments imposed nationwide residential lockdowns, business closures, event cancellations, border closures and restrictions on public assembly and on individual liberties. They also embarked on unprecedented expenditure programs to support economic activity through the crisis. This rapid expansion of the authority of executive government was matched at the federal level by a contraction in the role of the Federal Parliament. The House of Representatives and Senate were recalled in March for a one-day sitting of an unrepresentative ‘rump’2 of Members and Senators to approve a $189 billion package of stimulus measures; they were then, over the protest of opposition parties, adjourned for twenty weeks until August. Parliament was in fact recalled