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Australasian Parliamentary Review Autumn 2013, Vol. 28, No. 1

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Australasian Parliamentary Review Autumn 2013, Vol. 28, No. 1 Australasian Parliamentary Review Autumn 2013, Vol. 28, No. 1 FROM YOUR EDITOR Jennifer Aldred 1 ARTICLES 3 Race and the Australian Constitution George Williams 4 The dilemmas of drafting a Constitution for a new state Anne Twomey 17 Arm’s length bodies in the Australian Capital Territory — time for review? Roger Wettenhall 25 # Understanding conscience vote decisions: the case of the ACT Peter Balint and Cheryl Moir 43 # Committees in a unicameral parliament: impact of a majority government on the ACT Legislative Assembly committee system Grace Concannon 57 Guarding MPs’ integrity in the UK and Australia David Solomon 71 Unproclaimed legislation — the delegation of legislative power to the executive Alex Stedman 83 # Through the lens of accountability: referral of inquiries by ministers to upper house committees Merrin Thompson 97 # Strengthening parliaments in nascent democracies: the need to prioritize legislative reforms Abel Kinyondo 109 _________________________ # These papers have been double blind reviewed to academic standards. PARLIAMENTARY CHRONICLES 125 Electoral law and the campaign trail Harry Phillips 126 ‘From the Tables’ A round-up of administrative and procedural developments in the Australasian Parliaments — Robyn Smith 130 BOOK REVIEWS 139 Anne Twomey: Reluctant Democrat — Sir William Denison in Australia 1847–1861 140 Mary Crawford: Tales from the Political Trenches 143 David Clune: • Politics, Society, Self & • What is to be Done?: The struggle for the soul of the labour movement 146 Kevin Rozzoli: The Australian Policy Handbook: Fifth Edition 149 © 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 This issue carries three articles on various topics dealing with governance in the Australian Capital Territory (ACT). 2013 marks 100 years since Canberra was founded as the nation’s capital. The site was chosen for the federal capital after a long search process and entrenched by the Seat of Government (Acceptance) Act 1909, matching NSW surrender legislation. For several decades after, it was administered by sections of Melbourne-based departments, with gradual movement towards an elected representative institution for the ACT and a distinctive set of administrative arrangements. The Commonwealth parliament moved to Canberra in 1927, and the city’s population grew rapidly after World War II as the government moved many of its departments from Melbourne to Canberra: this increased pressure for a more conventional governance system. Self-government for the ACT came with the passing of the Australian Capital Territory (Self-Government) Act in 1988. The new territorial governance system settled in with a small (17 member) unicameral legislature, a ministerial executive (or cabinet), a fully fledged judiciary, a separate public service comprising a number of ministerial departments and a population of non-departmental bodies similar to those operating in the states. Some differences remained. Notably, as with the Northern Territory, the ACT did not have its own constitution or the constitutional protections that go with it, so that it was consequently possible for the Commonwealth to intervene directly in its legislative process by annulling ACT legislation. Another notable difference was that the ACT did not have a local government system of its own, so that its legislature and administrative apparatus had a responsibility for a wide range of services which was, in the states, divided between central and local governments. There is strong argument in Canberra’s centenary year that the Legislative Assembly needs enlarging for two main reasons. First is that the central-plus-local range of responsibilities places a very heavy load on the small band of Assembly members. Secondly, that — irrespective — more are needed to allow for the effective working of government and opposition front and back benches and a committee system, all seen as vital ingredients of a Westminster-style legislature. We will wait and see. I am grateful to Roger Wettenhall for his article on arm’s Australasian Parliamentary Review, Autumn 2013, Vol. 28(1), 1–2. 2 Jennifer Aldred APR 28(1) length bodies in the ACT and for his contribution to this potted history of the jurisdiction. Also in this issue George Williams and Anne Twomey write on separate issues dealing with constitutional matters. George examines the place of race in Australia’s Constitution and what it means for recognising Aboriginal peoples. Anne considers the various dilemmas involved in drafting a new state Constitution for the Northern Territory. Of particular interest is the balance between entrenchment and flexibility. Queensland’s Integrity Commissioner, David Solomon, examines the range of developments in the enforcement of ethical standards for MPs in both Australia and the UK. He considers their impact on ministers and backbenchers and the relationship they have with the parliament and the government. Alex Stedman raises questions, through the NSW experience, of whether the proclamation device can be abused by an executive to undermine parliament. Change is supported. Executive accountability — again in the NSW context — is discussed by Merrin Thompson. She considers the impact on the independence of the house of review of ministerial references to upper house committees. The articles conclude with Abel Kinyondo’s paper examining the effectiveness of strategies to strengthen parliaments in the Pacific. Using the case study of Tonga, he argues that strategies in place, such as parliamentary training and various democratic reforms, will be of limited success without deeper and more specific constitutional reforms. In Tonga’s case, reforms should necessarily seek to significantly and positively transform the make-up, leadership structure and the role of the parliament in discharging its functions independently of the monarchy. Some of the recommendations drawn in this piece have wider relevance to jurisdictions facing similar challenges elsewhere around the world. Robyn Smith and Harry Phillips chronicle various happenings around the parliaments for the past six months and the issue finishes with reviews of an interesting mix of recently released books. My thanks go to all who have given their time to contribute to APR in this way. The 2013 annual conference of the Australasian Study of Parliament Group is to be held in Perth on 2–4 October. The topic is: ‘Oversight: Parliamentary Committees, Corruption Commissions and Parliamentary Statutory Officers’. Further information is available on the ASPG website www.aspg.org.au. Remember readers, views and comments on the content of the journal are always most welcome. Email me at [email protected]. April 2013 ARTICLES George Williams is the Anthony Mason Professor, Scientia Professor and the Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of NSW Race and the Australian Constitution* George Williams Introduction The idea of a referendum on recognising Aboriginal and Torres Strait Islander peoples in the Australian Constitution was put on the national political agenda in the aftermath of the August 2010 federal election. This occurred without any announcement of what form the change would take. In effect, it was a commitment by the minority Gillard government to a referendum at or before the next federal election without a specific proposal for change. This poses a major challenge. Although Indigenous peoples have long sought recognition in Australia’s national and state Constitutions, common ground has not yet emerged on how this should be achieved. Hence, the task is not simply one of convincing Australians to vote Yes, but of determining what the amendment should be in the first place. The fact that the federal government has not stated what Australians will vote on has opened up debate about the nature of Australia’s Constitution and the form that the change should take. In 2011 this discussion was led by a government appointed expert panel chaired by Professor Patrick Dodson, former Chairman of the Council for Aboriginal Reconciliation, and former Reconciliation Australia co-chair Mark Leibler. The panel’s report and its recommendations for constitutional change were released publicly in early 2012. Its recommendations, which mirror those explored in this paper, have helped to frame the discussion, yet significant disagreement remains. The panel’s report has not galvanised community and political support around an agreed set of changes. * This article has been developed from Williams, George. 2012. ‘Removing Racism from Australia’s Constitutional DNA’ (2012) Alternative Law Journal 37, pp. 151–55 and Williams, George. 2011. ‘Recognising Indigenous Peoples in the Australian Constitution: What the Constitution Should Say and How the Referendum Can Be Won’, Land, Rights, Laws: Issues of Native Title 5(1). Australasian Parliamentary Review, Autumn 2013, Vol. 28(1), 4–16. Autumn 2013 Race and the Australian Constitution 5 This lack of support led the Gillard government to postpone the referendum planned for 2013, for at least two to three years. The Minister for Indigenous Affairs, Jenny Macklin, said the government ‘recognise[d] that there is not yet enough community awareness or support for change to hold a successful referendum at or before the next federal election.’1 In the meantime, the government has introduced an ‘Act of
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