The Formidable Fred Nile Prevails: Premier Concedes
Written by ACM   
Friday, 07 January 2011

While conceding that she had  failed to gauge the level of public concern about the government's sale of electricity assets, the NSW  Premier, Kristina Keneally, has refused to consider recalling Parliament.(“ Premier erred but Parliament stays shut”, a report by Ellie Harvey and Brian Robins in The Sydney Morning Herald, 7/1)

 ''I underestimated the level of public interest in these transactions, and I acknowledge that,'' Ms Keneally admitted.

he Premier has decided that she and the Treasurer, Eric Roozendaal, would appear before the inquiry under the formidable Rev Fred Nile.

This is the inquiry she previously damned as “illegal” and then “unconstitutional.”

...power & accountability...

From the Magna Carta in 1215, through the Glorious Revolution of 1688, the evolution of responsible government and the gift of that to the Australian colonies, the essence of our constitutional monarchy is that government is not absolute; that we live under the rule of law and not the rule of men.

Now the constitutional monarchy (or crowned republic) has been demonstrated to be the best system to ensure such accountability together with both stability and flexibility. We have long drawn attention in this column to the results which have been achieved in countries functioning under this system.

[ The Mother of Parliaments ]

Prorogation once brought Parliament to a halt. An exception had to be made for judicial proceedings in the House of Lords; other exceptions were gradually made. 

This can be done today by statute, and some argue as we have, by standing orders.

And with the greatest of respect to the Crown Solicitor, Mr. Knight’s well- crafted opinion, the judges are unlikely to agree with his restrictive view.

They have already have found that the executive is accountable to Parliament and not just to the lower house.  

If the matter were to come before them it is unlikely that faced with the Standing orders they will seek refuge in a narrow reading of the constitution to delegitimize the Nile inquiry.

Just as the American Suprem Court didi when the President actually argued that the doctrine of executive privelege made him a latter day Louis XIV: United States v Richard Nixon (1974)

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 today?  As we observed here, it is certainly not going to stop the formidable Rev. Fred Nile.

...neither  illegal nor unconstitutional...

Even if his inquiry does not enjoy the powers and privileges of  a parliamentary inquiry –and on one interpretation of the Standing Orders it does- to say it is “illegal” or even “unconstitutional is not helpful.

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 federal 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.

But nobody said the Corgill inquiry  was illegal or unconstitutional.  Critics merely said it was inadequate.

...the solution...

[ The Rev. Fred Nile ]

In our modern system of governance, the executive – from whatever party- must be accountable. It is unacceptable that any inquiry not be empowered and witnesses protected.

The solution is in the Premier’s hands. That is to recall Parliament. And its first task should be to pass legislation providing that parliamentary committees are not affected by a prorogation.