The Regulation of Pork Barrelling in Australia
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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 Dr Harry PhilliPs, Parliament of Western Australia Jennifer Aldred, Public and Regulatory Policy Dr StePhen Redenbach, Parliament of Victoria Consultant Dr Paul Reynolds, Parliament of Queensland Dr David Clune, University of Sydney Kirsten Robinson, Parliament of Western Australia Dr Ken Coghill, Monash University Kevin Rozzoli, University of Sydney Professor Brian Costar, Swinburne University of Professor Cheryl Saunders, University of Melbourne Technology Emeritus Professor Marian Sawer, Australian National Dr Jennifer Curtin, University of Auckland University Dr Gareth Griffith, NSW Parliamentary Library Professor Marian Simms, Deakin University Professor John Halligan, University of Canberra Dr Robyn Smith, Parliament of the Northern Territory Associate Professor Graham Hassall, Victoria Dr David Solomon, former Queensland Integrity University of Wellington Commissioner Dr Richard Herr, University of Tasmania Dr Katrin Steinack, University of Melbourne Professor Bryan Horrigan, Monash University Dr Elaine ThomPson, University of New South Wales Professor Helen Irving, University of Sydney Wayne Tunnecliffe, Parliament of Victoria Dr Rosemary Laing, Australian Senate Professor Anne Twomey, University of Sydney Adjunct Professor Colleen Lewis, Monash University Dr June Verrier, former Head, Australion Parliament Dr Clement MacIntyre, University of Adelaide Information and Research Services Dr Isla MacPhail, Parliament of Western Australia Professor George Williams, University of New South Professor Raymond Miller, University of Auckland Wales Professor Graeme Orr, University of Queensland Australasian Parliamentary Review WINTER/SPRING 2020 • VOL 35 NO 1 Table of Contents From the Editor 5 Rodney Smith 5 ARTICLES 7 Powers of Fiji’s Head of State: Some Considerations on the 50th Anniversary of Fiji’s IndePendence* 8 Richard Herr 8 The Regulation of Pork Barrelling in Australia* 24 Susanna Connolly 24 Queensland’s Scrutiny of ProPosed Legislation by Parliamentary Committees: Do They Make for More Considered, Rights-ComPatible Law?* 54 Lynda Pretty 54 The Franking Credits Controversy: House of RePresentatives Committees, Public Engagement and the Role of the Parliamentary Service* 77 Emma Banyer 77 Parliamentary Privilege, Search Warrants and Intrusive Powers: Are Memoranda of Understanding Fit For PurPose?* 111 Rebecca Burton 111 A Funny Thing HapPened on the Way to the National Cabinet—Out Goes Good Policy, One, Two, Three* 141 Scott Prasser 141 BOOK REVIEWS 157 Neville Wran. Australian Biographical Monographs No. 5, by David Clune. Cleveland (Qld): Connor Court Publishing, 2020. PP. 80, Paperback RRP $19.95 ISBN: 9781922449092 158 4 Elaine Thompson 158 The Fatal Lure of Politics: The Life and Thought of Vere Gordon Childe, by Terry Irving. Clayton: Monash University Publishing, 2020. PP. 424, Paperback RRP $39.95. ISBN: 978-1-925835-74-8 163 David Clune 163 * 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 This issue of the Australasian Parliamentary Review continues the emPhasis of the last issue in Presenting serious analysis of current issues related to Parliament. In the first article in this issue, Richard Herr uses the oPPortunity Presented by the recent 50th anniversary of Fijian indePendence to deliver a critical analysis of the further adaption of the Westminster model to the Fijian context in the 2013 Constitution. He focuses Particularly on relations between the Head of State and the Parliament, arguing that the 2013 Constitution has continued previous trends of diminishing the President’s exercise of reserve Powers via their codification and of increasing the Power of the Prime Minister over the Parliament. Given recent controversies over Pork barrelling in sPorts and community grants schemes at both the national and state level in Australia, Susanna Connolly’s detailed exPlanation of the current regulation of Pork barrelling is most timely. Following a systematic review that covers electoral bribery offences, financial legislation and regulations, administrative law, ministerial standards, caretaker conventions, oversight by the Auditor-General and media coverage, she concludes with some suggestions for imProving a regime that is ‘limited by the absence of sufficient enforcement mechanisms’. The next two articles focus on the roles of committees. Lynda Pretty analyses evidence on the current state of rights Protection via legislation and committee scrutiny in Queensland. She notes the imPossibility of effective rights Protection when governments use their majorities in Queensland’s Legislative Assembly to avoid committee scrutiny in the name of urgency—a Practice that began before Covid 19 and has continued through the Pandemic resPonse—but also the Potential of proper committee scrutiny for develoPing a more rights aware Political culture in the sunshine State. Queensland’s unicameral Parliament has, of course, just begun its first fixed four-year Parliamentary term with the election of a majority government led by Premier Annastacia Palaszczuk. The damaging effects of excessive PartisanshiP and time Pressures on committee work are also central themes of Emma Banyer’s analysis of the House of RePresentatives Standing Committee on Economics’ controversial 2018-19 inquiry into franking credits. Relating the inquiry to broader theories of Parliament, citizen VOL 35 NO 1 WINTER/SPRING 2020 6 ParticiPation and deliberation, Banyer notes that ‘the existing literature overlooks the specific role of the Parliamentary Service’ in Promoting ParticiPation and deliberation. She discusses this role and outlines a set of reform principles designed to avoid future ‘negative, maniPulative or ineffectual Public engagement’ by Parliamentary committees. Rebecca Burton considers recent instances of conflicts between the PrinciPle of Parliamentary Privilege and the integrity of investigations into criminal and corruPt acts required by the rule of law. DeveloPments in surveillance mechanisms, including access to electronic metadata, have heightened this issue. Burton reviews current memoranda of understanding between Parliaments and investigating agencies, arguing that … it is an oPPortune time to renegotiate existing memoranda of understanding to include Protocols covering more advanced investigative techniques and better safeguards to ensure material subject to Parliamentary Privilege is treated apProPriately. She concludes her article with a set of oPtions for imProving these memoranda. We conclude the articles by adding to the three articles by Jonathan O’Dea, StePhen Mills and Graeme Orr Published in the last issue of the Australasian Parliamentary Review on the imPact of Covid 19 on Parliamentary and related Politics. In this issue, Scott Prasser Presents a critical assessment of the genesis, early oPeration and future of the National Cabinet established by Prime Minister Scott Morrison in March this year. Prasser concludes that the National Cabinet has, among other things, ‘enhanced executive federalism’ and ‘extended executive Power’, while raising ‘real concerns about the value and constitutional standing of Parliament in the Australian Westminster model’. We hoPe to continue assessments of the imPact of Covid 19 resPonses on asPects of Parliament in future issues of the journal. AUSTRALASIAN PARLIAMENTARY REVIEW 7 Articles VOL 35 NO 1 WINTER/SPRING 2020 8 Powers of Fiji’s Head of State: Some Considerations on the 50th Anniversary of Fiji’s Independence* Richard Herr Academic Director, Parliamentary Law, Practice and Procedure Course, University of Tasmania. * Double-blind reviewed article. Abstract The Westminster model for Parliamentary democracy has served as the temPlate for one of the world’s most widely used forms of resPonsible government. The model owes its PoPularity to its cultural adaptiveness, which stems largely from the original model’s reliance on Pragmatic conventions to resolve fundamental constitutional disPutes. However, as Walter Bagehot noted 150 years ago, every rePlication can lead to ‘coPying errors’. Fiji’s 2013 constitution was intended to restore Fiji to Parliamentary democracy after the 2006 military couP. It has been controversial for many reasons including the significant changes it made to Previous iterations of the Westminster model over the 50 years since Fiji’s indePendence esPecially the 1997 constitution which was itself a consequence of a military couP. This article tests the relevance of Bagehot’s concerns in contemPorary Fiji as they apPear in the 2013 Constitution, with a focus on Head of State-Parliament relations. INTRODUCTION On October 10 2020, Fiji celebrated the fiftieth anniversary of its indePendence, although regrettably