Australasian Parliamentary Review JOURNAL OF THE AUSTRALASIAN STUDY OF PARLIAMENT GROUP Editor: Rodney Smith, Professor of Australian Politics, University of Sydney Federalism in Australia Public Engagement and Budgets in Bangladesh Televising Parliament in New Zealand AUTUMN/WINTER 2019 • VOL 34 NO 1 • RRP $A35 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 1 Australasian Parliamentary Review AUTUMN/WINTER 2019 • VOL 34 NO 1 Table of Contents From the Editor 3 Rodney Smith 3 ARTICLES 5 Federalism and the Constitution – An Update 6 The Hon Robert French AC 6 R v The Prime Minister; Cherry and Others v Advocate General for Scotland 20 The Hon. D. L. Harper AM 20 Does Public Engagement Matter? Parliament, Public Engagement and the Budget Process in Bangladesh* 28 Nizam Ahmed and Sadik Hasan 28 Ministerial Responsibility in Cases of Serious Policy Failure: The Role of Extra- Parliamentary Inquiry in Upholding Political Legitimacy* 48 Anthea Howard 48 Effective or Affectation? Televising Parliamentary Proceedings and Its Influence on MPs’ Behaviour* 70 Greg Cotmore 70 Back to the 1950s: the 2019 NSW Election* 85 David Clune and Rodney Smith 85 BOOK REVIEWS 101 The Law of Politics: Elections, Parties and Money in Australia, by Graeme Orr. Alexandria (NSW): The Federation Press, 2nd edition, 2019. pp. xxxi + 336. Paperback RRP $89.95. 102 Andrew Geddis 102 AUTUMN/WINTER 2019 • VOL 34 NO 1 2 YES, We Can... …Rewrite the Australian Constitution, by Klaas Woldring. Milton Keynes: Lightning Source, 2018. pp. 94. ISBN: 978-1-925457-75-9 Paperback approximately $30.00. 105 Anika Gauja 105 The Hilton Bombing: Evan Pederick and the Ananda Marga, by Imre Salusinszky. Carlton (Vic.): Melbourne University Press, 2019. pp. 277. ISBN 9780522875492 Paperback RRP $34.99. 108 David Clune 108 * Indicates that the article has been double-blind reviewed. AUSTRALASIAN PARLIAMENTARY REVIEW 3 From the Editor Rodney Smith Professor of Australian Politics, University of Sydney I am confident that this issue of the Australasian Parliamentary Review will have something of interest for all readers. It begins with two articles offering insightful legal perspectives on key questions of the day. In the first, former Chief Justice of the High Court of Australia, The Hon Robert French AC, places a series of recent court cases involving aspects of Australian federalism into their broader constitutional context. In the second, The Hon. D. L. Harper AM, a former Judge of the Court of Appeal of the Supreme Court of Victoria, examines the recent judgement of the Supreme Court of the United Kingdom on the attempt by Prime Minister Boris Johnson to prorogue the UK Parliament. The next two articles continue the broad theme of relations between Parliament and the Executive, albeit in quite different contexts and with varied foci. Nizam Ahmed and Sadik Hasan analyse recent developments in strengthening parliamentary scrutiny of government budgets in Bangladesh that draw on the resources of civil society organisations. Anthea Howard focuses on three cases of serious policy failure – two from Australia and one from New Zealand – to tease out current expectations surrounding ministerial responsibility and how these expectations might be made more robust. The next article focuses squarely on New Zealand. Greg Cotmore presents systematic evidence to show that the introduction of Parliamentary TV in the New Zealand House of Representatives has generally been associated with improved behaviour in the Chamber. He concludes that the current restrictions on television coverage could safely be relaxed to allow the House to be presented in a more dynamic way to the public. Finally, David Clune and Rodney Smith discuss the 2019 NSW state election, a contest which showed, among other things, that the long period during which NSW was a ‘Labor state’ is over. Despite Gladys Berejiklian’s victory, the election results for the Legislative Council mean that her Coalition Government will have a difficult time navigating its legislative program through the upper house. This issue is rounded off with three book reviews, covering Australian electoral law, possible reforms to the Australian Constitution, and a new appraisal of the 1978 Hilton Hotel bombing in Sydney. AUTUMN/WINTER 2019 • VOL 34 NO 1 4 As is always the case, producing the Australasian Parliamentary Review has only been possible with the help of a number of article referees, book reviewers and others involved in the production process. I thank them again for their willingness to give their time and labour to support the journal. This issue has been delayed by a number of factors, for which I apologise, but I am also confident that readers will find it has been worth waiting for. AUSTRALASIAN PARLIAMENTARY REVIEW 5 Articles AUTUMN/WINTER 2019 • VOL 34 NO 1 6 Federalism and the Constitution – An Update The Hon Robert French AC1 Former Chief Justice of the High Court of Australia INTRODUCTION This paper concerns federalism in general, our federation in particular, and how our Federal Constitution affects Commonwealth law-making and executive powers, and the rule of law. FEDERALISM IN GENERAL Federalism denotes a class of systems of government in which power is distributed between one national government and several sub-national governments, each responsible for a part of the national territory. The distribution of powers between the centre and the regions is effected by a constitution which cannot be amended unilaterally by the central government or by the regions acting separately or together. That distribution of powers is generally interpreted and policed by a judicial authority.2 Judicial authority is therefore an important feature of federation. A.V. Dicey wrote: ‘Federalism ... means legalism — the predominance of the judiciary in the constitution — the prevalence of a spirit of legality among the people’.3 Dicey described the courts in a federation like the United States as ‘the pivot on which the constitutional arrangements of the country turn’.4 The bench, he said, ‘can and must determine the limits to the authority both of the government and of the legislature; its decision is without appeal; the consequence follows that the Bench of judges is not only the 1 Paper delivered to the Australasian Study of Parliament Group (WA Chapter) on 20 September 2018. 2 Geoffrey Sawer, Modern Federalism. Carlton: Pitman, 2nd edition, 1976, p. 1. 3 A.V. Dicey, Introduction to the Study of the Law of the Constitution. London: Macmillan, 10th edition, 1959, p. 175. 4 Dicey, Study of the Law of the Constitution, p. 175. AUSTRALASIAN PARLIAMENTARY REVIEW 7 guardian but also at a given moment the master of the constitution’.5 Hence the importance of judicial decisions in shaping our federation. Ultimately of course, it is the people who are the masters of the Australian Constitution through their power to amend it pursuant to s 128. Another important factor in the shaping of our federation has nothing to do with the judiciary. That is cooperative federalism. That describes an attribute of a federation in which the component governments routinely engage in cooperative action with a view to achieving common objectives. In Australia that cooperation