Australian Republic Constitution
Australian Flag News Get Involved! Events Resources
Main Menu
ACM Home
About ACM
ACM News
Anthems
Afghan Court Martial
Book Reviews
The Commonwealth
Contact ACM
Convenor's Column
Constitutional Monarchies and Republics Compared
Constitutional Monarchy in the Muslim World
Cost of Republicanism to the Taxpayer
Crowned Republic
Diamond Jubilee 2012
Event News
Federalism and the Mining Tax
Fiji
Flag: Keep The Flag
Governor of New South Wales
Head of State
Keating-Turnbull Republic: The Nineties
Knights & Dames
Latest News and Opinions
Links
Mate for a Head of State
Media and monarchy
Nile Inquiry
Opinion Polling
Orthodoxy and Monarchy
People's Republic?
Plebiscites
Prince Andrew
Prince Charles
Prince Harry
Prince Philip
Prince William & Catherine
Prince William In Australia
Prince William: The Early Years
Racist Republic?
Reserve Powers of the Crown
Resources
Return the Governor
Royal Commissions
Royal Finances
Self Funded Monarchy
Royal Yacht Britannia
The Succession
2020 Summit
Join our Mailing List
See our selection of videos from across the world:-
ACM Videos
AussieCrownTV - ACM's own TV channel:
Aussie Crown TV
Follow ACM on Facebook:
Facebook
Self Funded Monarchy
Self Funded Monarchy
Royal Finances
Royal Finances
Diamond Jubilee 2012
Diamond Jubilee 2012
Head of State
Prince Philip
Prince Philip
Special Caribbean Report: Crown & Commonwealth

      Crown

The Commonwealth
The Commonwealth
Prince Harry
Prince Harry
Prince Andrew
Prince Andrew
Knights & Dames
Knights & Dames
The King's Speech: read the book, see the film.

The King's Speech

Watch the 2010 Neville Bonner Oration: Tony Abbott.
Tony Abbott
Nile Inquiry
Royal Commissions
Royal Commissions
Opinion Polls

 

Plebiscites
Plebiscites
2020 Summit
2020 Summit
Orthodoxy & Monarchy
Orthodoxy & Monarchy
Afghan Court Martial
Constitutional Monarchy in the Muslim World
Constitutional Monarchy in the Muslim World
Mate for a Head of State
Mate for a Head of State
Racist Republic?
Racist Republic
A People's Republic?
A People's republic?
Keating Turnbull Republic: The Nineties
The Keating Turnbull Republic
Crowned Republic
Crowned Republic
Polls
Republicans' Best Asset?
Is David Flint ( National Convenor since 1998) the republicans best asset, as some claim?
ACM Home arrow Convenor's Column arrow Prorogation: it won't stop the Rev Fred Nile

Prorogation: it won't stop the Rev Fred Nile Print E-mail
Written by Professor David Flint AM   
Tuesday, 04 January 2011

The Westminster system came to Australia with self government which the British granted to most states over 150 years ago. Under this,  government is accountable to Parliament and thus to the people, as it should be.

One of the ways in which accountability is ensured is through inquiries.

Image
[ Rev Fred Nile MP ]



It is desirable that any inquiry have the power to compel the production of documents and the attendance of witnesses to give evidence. Equally the proceedings should be protected -or “privileged”.

This means, for example, that actions for defamation should not be available or readily available against what is said there or contained in a report. In addition actions for breach of confidence in relation to documents produced should not be available. 

Royal Commissions and parliamentary inquiries will normally enjoy these powers and are protected, that is privileged.



...and in New South Wales...

 

A major current issue in New South Wales is about the inquiry into the government’s $5.3 billion power station sale by a Legislative Council Committee chaired by the Rev. Fred Nile. (In an ACM  conversazione  on hung parliaments in September 2010, and in answer to a question on the difficulties independent MP's experience with the parliamentary agenda, Dr. Anne Twomey observed that Mr.Nile has an extraordinary ability in being able to cover an unusually wide range of issues.) 

The question is whether this inquiry can proceed now that Parliament has been has been prorogued, and if it can, whether it is empowered to compel the attendance of witnesses and the production of documents, and is privileged: (see this column  “Prorogue, then intimidate,”  30 December 2010 )

Prorogation once brought Parliament to a halt. An exception had to be made for judicial proceedings in the House of Lords. and other exceptions were gradually made.  This can be done by statute, and some argue, as we have, by standing orders. 

There was a time once when Parliament  was dissolved on the death of a monarch. This today would serve no good purpose.

Should prorogation stop inquiries? 

Image



...Corgill inquiry...
 




[Continued below ]


When there were allegations that around $5 billion dollars had been lost in the management of the federal government’s Building the Education Revolution ( “BER”) , the government appointed an inquiry under Brad Corgill.

This was criticised at the time because the inquiry could not compel the attendance of witnesses or the production of documents, and it could give no protection to witnesses.

The opposition has foreshadowed the appointment of a Royal Commission if they are called to form a government.





... $5.3 billion power sale inquiry...




On 22 December 2010 the Governor of New South Wales, acting on advice, prorogued the Legislative Assembly until 4 March 2011 and the Legislative Council. In my view the Governor acted correctly; an exercise of her reserve powers would not have been constitutionally justified asthey were recently in Canada.

On the next day, following earlier discussions and negotiations, a standing committee of the Legislative Council indicated that it was inquiring into and reporting on certain aspects of the Government Energy Reform Strategy involving the s $5.3 billion power sale ( the "Gentrader Transactions lnquiry").

This is to include details of the energy reform transactions completed on 14 December 2010 and announced the following day, the circumstances leading to the resignation of the directors of Eraring Energy and Delta Electricity, and the impact of the transaction on electricity prices, competition in electricity market and the value obtained for NSW tax payers.  

The committee has invited written submissions by 14 January 2011 and indicated it will conduct public hearings on 17 and 18 January 2011.




..illegal or unconstitutional?...



 

The Premier initially said any meetings of the committee would be illegal. She referred to an opinion from the Crown Solicitor given in 1994 which the Clerk to the Legislative Council said was “too restrictive”.

In a legal opinion to the Leader of the Opposition, Barry O’ Farrell, Arthur Moses SC and Professor Patrick Keyser agree with the Clerk. They also warn that the the Premier’s reported comments have an inherent tendency to deter witnesses from participating in the Inquiry and may result in a contempt of Parliament.

On 3 December the Premier, Kristina Keneally released an opinion form the Crown Solicitor, Mr. Ian Knight. He confirms his earlier opinion.  

In brief this is that the extent to which  Standing Order 206 purports to authorise a standing committee to sit while the House is prorogued, it is invalid.

This, he says, is because it is not a standing order for the "orderly conduct" of the Legislative Council authorised by s. 15(1)(a) of the Constitution Act, 1902.

Although Mr. Knight's opinion is detailed and well argued, it is in myview this is too restrictive an interpretation of the constitution. This is  especially so in the light of court decisions which increasingly acknowledge the accountability of government to the Parliament as a whole and thus to the people.

These cases include the unanimous decision of the High Court in Lange v ABC (1997) and two decisions relating to the NSW Legislative Council, the decision of the High Court in Egan v. Willis (1998) and the decision of the New South Wales Court of Appeal in Egan v. Chadwick (1999).

Without going into detail, the clear trend of these is to endorse accountability.





..and in the US?...




In our system, governments are accountable. Although the principle was still evolving, the US adopted the same principle at its foundation.  In the United States v Richard Nixon (1974) , the President’s lawyer famously but unsuccessfully argued

“The President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.”   

The President had claimed executive privilege in relation to tapes of White House conversations relevant to the Watergate affair.  The Supreme Court rejected that proposition, unanimously. 



....and the Supreme Court?...  




In their opinion, Mr. Moses SC and Professor Keyser say that the appropriate and responsible course is for the Government to seek a declaration from the Supreme Court of NSW to state the law on the issue and to determine unequivocally whether the proroguing of the Parliament has had the legal effect which the Premier has asserted.

They say that:

“A binding determination by the Supreme Court of NSW is preferable to the uncertainty of competing legal advices being  debated in the public arena.”

Mr. Nile indicates that he will not be seeking declaration, and that he will proceed.  As did Mr. Corgill. 

The Parliament and the people are entitled under the Westminster system to hold the government accountable. This is a universal principle applicable to governments of all persuasions.  If a declaration is not her made, or if it is unfavourable, the next Parliament should decide clarify the issue.

  

 
< Prev   Next >
ROYAL VISIT 2014

Image

The Book Depository
Image
Image
Prince William: The Early Years
Prince Charles

Prince Charles

Constitutional Monarchies & Republics Compared

Image


Defend the Constitution and Flag
Australian Election Watch

10th Anniversary Neville Bonner Oration

11th Anniversary and Appeal

Crowned Republic 

   Keep The Australian Flag
Return the Governor to Government House
The Succession
The Succession
The Governor of New South Wales
Governor of New South Wales
Fiji
Fijian soldier
Media and Monarchy
Media and Monarchy
Royal Yacht Britannia
Royal Yacht Britannia
Republic Audit: Costs of Republic
Republic Audit: Costs of Republic
Reserve Powers of the Crown
Events
October 2017 November 2017 December 2017
Su Mo Tu We Th Fr Sa
Week 44 1 2 3 4
Week 45 5 6 7 8 9 10 11
Week 46 12 13 14 15 16 17 18
Week 47 19 20 21 22 23 24 25
Week 48 26 27 28 29 30
Latest ACM News: -