Australasian Parliamentary Review
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Australasian Parliamentary Review JOURNAL OF THE AUSTRALASIAN STUDY OF PARLIAMENT GROUP Editors Colleen Lewis Isla Macphail Special Issue: Parliament and the Law Dimensions to Parliamentary Privilege The Ethic of Mutual Respect and the Importance of Independence SPRING/SUMMER 2015 • VOL 30 NO 2 • RRP $A35 AUSTRALASIAN STUDY OF PARLIAMENT GROUP (ASPG) AND THE AUSTRALASIAN PARLIAMENTARY REVIEW (APR) 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: Dr Colleen Lewis, [email protected] Editorial Board Dr Peter Aimer, University of Auckland 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 Prof. Brian Costar, Swinburne University of Technology Prof. Cheryl Saunders, University of Melbourne Dr Jennifer Curtin, University of Auckland Emeritus Prof. Marian Sawer, Australian Dr Gareth Griffith, NSW Parliamentary Library National University Prof. John Halligan, University of Canberra Emeritus Prof. Roger Scott, University of Queensland Assoc. Prof. Graham Hassall, Victoria University Prof. Marian Simms, Deakin University of Wellington Dr Robyn Smith, Parliament of the Northern Territory Dr Richard Herr, University of Tasmania Dr Rodney Smith, University of Sydney Dr Michael Hogan, University of Sydney Dr David Solomon, Queensland Prof. Bryan Horrigan, Monash University Integrity Commissioner Prof. Helen Irving, University of Sydney Dr Katrin Steinack, University of Melbourne Dr Rosemary Laing, Australian Senate Dr Elaine Thompson, University of Professor Colleen Lewis, Monash University New South Wales (retired) Dr Clement MacIntyre, University of Adelaide Wayne Tunnecliffe, Parliament of Victoria Prof. Elizabeth McLeay, Victoria University Ken Turner, University of Sydney of Wellington Prof. Anne Twomey, University of Sydney Assoc. Prof. Raymond Miller, University of Auckland Dr June Verrier, former Head Aust. Parlia mentary Dr Harry Phillips, Parliament of Western Australia Information & Research Services Dr Stephen Redenbach, Parliament of Victoria Prof. George Williams, University of New South Wales Acknowledgments The ASPG wishes to express its gratitude to the Department of the House of Representatives and the Department of the Senate for their generous support of the Group, especially the publication of Australasian Parliamentary Review. 1 Australasian Parliamentary Review SPRING/SUMMER 2015, VOL. 30, NO. 2 Table of Contents FROM YOUR EDITOR(S) 3 From Your Editor(s) 3 Colleen Lewis and Isla Macphail ARTICLES 7 Parliament and the Judiciary: Judicial Independence and the Nature of the Relationship Between Parliament and the Judiciary 8 David Harper Parliament and Independent Statutory Officers 20 David Solomon Royal Assent—The Business of Parliament or the Executive? 31 Anne Twomey Journalist Shield Laws and Binding the Parliament 48 Michael Mischin Exclusive Cognisance: Is it a Relevant Concept in the 21st Century? 58 Rosemary Laing Information and Parliamentary Democracy: The Battle of Privileges 73 Antonio Buti Parliament and the Courts: A Contemporary Assessment of the Ethic of Mutual Respect 80 Wayne Martin SPRING/SUMMER 2015 • VOL. 30 NO. 2 2 Parliament and Law Reform—the Role of the Australian Law Reform Commission Over Forty Years 99 Rosalind Croucher Parliamentary Privilege Developments in New Zealand: The Good, the Bad and the Ugly 115 Philip A Joseph Parliament, Executive and the Courts: Laws of Separation, Conventions of Mutual Respect and Outstanding Flashpoints 132 Neil Laurie Pusillanimous Parliamentarians 155 James Allan CHRONICLES 165 From the Tables — January–June 2015 166 Robyn Smith NOTES FOR CONTRIBUTORS 171 © Australasian Study of Parliament Group. Requests for permission to reproduce material from the Australasian Parliamentary Review should be directed to the Editor. ISSN 1447–9125 Edited by Dr Colleen Lewis, Adjunct Professor, National Centre for Australian Studies, Monash University. Designed and typeset by Keep Creative, Canberra. Printed by Instant Colour Press AUSTRALASIAN PARLIAMENTARY REVIEW From Your Editor(s) 3 From Your Editor(s) Colleen Lewis and Isla Macphail Colleen Lewis is editor of the Australasian Parliamentary Review. This special issue is co-edited with Isla Macphail. COMMENT: COLLEEN LEWIS Welcome to the Spring/Summer edition of the Australasian Parliamentary Review. This is a special themed issue that focuses on ‘Parliament and the Law’. The idea for this topic is not mine. It belongs to Isla Macphail from the Western Australia Chapter of the Australasian Study of Parliament Group (ASPG). Isla is the Sergeant-at-Arms and the Principal Research Officer to the Legislative Assembly’s Procedure and Privileges Committee at the Parliament of Western Australia. Isla also makes a considerable contribution to the running of the WA Chapter of the ASPG and to the Group more generally. Isla suggested the topic of ‘Parliament and the Law’ to me at the 2014 ASPG Conference and mentioned several people who could be invited to contribute articles. As the idea was Isla’s, I invited her to be co-editor of this special issue and was delighted when she responded positively to the invitation. Isla is the consummate professional and working with her in putting together Parliament and the Law has been an absolute pleasure. I thank her most sincerely for the idea and the hard work she has put into bringing this issue to its conclusion. I also thank Robyn Smith for her regular From the Tables contribution. Sadly, this is Robyn’s last From the Tables and on behalf of all APR subscribers and other readers of the journal, I would like to express gratitude to Robyn for her excellent overview of Australian parliaments over many years. Thank you Robyn, you have been highly professional at all times and we appreciate the enormous amount of time you have put into ensuring that APR readers are kept up-to-date with important happenings in all parliamentary jurisdictions. COMMENT: COLLEEN LEWIS AND ISLA MACPHAIL The distinguished contributors to this special issue have given generously of their very scarce ‘free time’ to write authoritative articles on various aspects of the intersection of Parliament and the law. We thank them most sincerely for their generosity and for their expert intellectual input into what is a critical issue in democratic political SPRING/SUMMER 2015 • VOL. 30 NO. 2 4 Colleen Lewis and Isla MacpHail systems. Their contributions have created what we, as editors, believe is a particularly worthwhile issue—creating a dialogue across papers that adds greater understanding to a fascinating and important area. The Hon David Harper AM QC, former Judge of the Supreme Court of Victoria and former Member of the Appeal Division of that Court has written on ‘Parliament and the Judiciary: Judicial Independence and the Nature of the Relationship Between Parliament and the Judiciary’. Harper points to ‘a fault line’ that exists in the rule of law concept. While it is recognised by legal academics and other interested parties, it sometimes encroaches upon a wider stage. When this occurs, the results can be serious, as they can impact on the relationship between Parliament and the judiciary. As Harper explains, ‘If Parliament acts in a way adjudged by the courts to be unlawful and contrary to the rule of law, and if Parliament does not accept that judgment, the result is a constitutional crisis’. Former Queensland Integrity Commissioner and former Chair of Queensland’s Electoral and Administrative Review Commission, Dr David Solomon, uses evidence from the Australian State of Queensland in his article, ‘Parliament and Independent Statutory Officers’, to argue that ‘Parliament will rarely be able to protect the independence of statutory officers if the government wants to act against them. Even so, those officers cannot afford to lose the respect and confidence of the Parliament (or its relevant committee) if they are to maintain their independence’. In her article, ‘Royal Assent—The Business of Parliament or the Executive?’, Professor Anne Twomey, Professor of Constitutional Law at the University of Sydney, explores whether in Westminster systems of responsible government ‘there is any discretion, after a bill has been passed by the Houses, for assent to be refused or delayed’. As she explains, ‘Too often … commentators reflexively rely on one particular principle, such as the principle of responsible government that a vice-regal officer acts upon the advice of Ministers, without paying sufficient attention to other constitutional principles, such as representative government, and how any conflict between them ought to be resolved’. Twomey argues ‘that rather than applying a simplistic binary choice between one rule or another, greater effort should be made to reconcile conflicts between constitutional principles in accordance with their underlying purposes to achieve the most appropriate constitutional outcome’. The Hon Michael Mischin MLC, Attorney General of Western Australia, examines the effect of the Evidence and