Dominic Perrottet is known as a man of principle. His first test will be to see if he believes in our democracy.
The Parliament of New South Wales is one of the longest living houses of representative democracy in the world, but it was recently shut down, and by its own government.
Members of the NSW upper house turned up for work as scheduled on September 14. Those from every party except the NSW Liberal Party anyway. Then the President announced that they would need to leave. Appalled, they petitioned the Governor and Attorney General to intervene and reopen our parliament.
Australia’s first democratic institution had broken down, without so much as a military coup. So how did it happen?
Covid can’t be the whole reason, because no doctor advised a shutdown.
The Chief Health Officer, Dr Kerry Chant, had reviewed the Parliament’s COVID-safe procedures and given tacit approval for the upper house to meet. Her original advice that the parliament defer meeting was issued on 27 July for a month. She did not renew her advice on 27 August 2021. The President of the Legislative Council, Matthew Mason-Cox, of the Liberal Party, considered it safe.
Indeed, if there were reservations about meeting in person, most of our state representatives were ready to meet via video link.
But not one of NSW’s eleven Ministers or Parliamentary Secretaries in the Legislative Council, each paid hundreds of thousands of dollars to represent us, turned up.
Their absence, the President said, meant the Parliament was unable to sit.
Is that true?
Standing Order 34 says a Minister is to be present when the Legislative Council is sitting (Standing Order 25 allows a Parliamentary Secretary to step in for a Minister).
It is extremely odd. This standing order does not exist in any other Australian Parliament.
The standing order says the Legislative Council ‘will not meet unless a Minister is present in the House’. This standing order was meant to codify an old custom for the government to be present when the upper house met. This appears to be a courtesy, so the House does not meet behind the government’s back. Fair enough.
However, using Standing Order 34 to shut down parliament goes against the spirit of the custom that urges all Members to be present.
It was open to the President to rule that the politicians should meet, as Standing Order 4 states ‘Nothing in these standing orders affects the rights, privileges and powers of the House’.
Parliamentary ‘privilege’ is a fundamental right of parliamentarians to speak freely in the House—an obvious precondition is that the House meets.
By unilaterally closing down the House, when it should legally be open, a Member’s right to parliamentary privilege has been taken away. In making this poor decision the President chose not to uphold his traditional role as ‘Defender of the House’ (If we read Standing Order 34 the way the President did, it would mean the Government could simply decide never to turn up and close parliament indefinitely).
Democracy didn’t fail thanks to a clumsy accident. It was premeditated. The NSW government had announced it would not send a Minister or Parliamentary Secretary.
We can all see that our State’s Ministers are under tremendous pressure. These are extraordinary times. Confusing times.
Which is why we have our laws, conventions, standing orders and — importantly — the customs behind them. Our traditions have helped us navigate trying times before, including world wars, and, yes, even a pandemic in 1918.
The NSW Coalition government has used the rules to go against these traditions, and, painfully, against its own citizens.
It is, perhaps, because our government is confused about who we all are. It seems we need to remind them we are first of all citizens, not just potential COVID-19 patients.
Citizens elect politicians to parliament, and then parliament decides who can form the government. In the words of the High Court, the government owes its ‘primary responsibility … to Parliament’, and the Parliament is ultimately responsible to us – the state’s citizens.
In the field of constitutional law, this is known as ‘responsible government’. Prime Minister Robert Menzies said responsible government is “the ultimate guarantee of justice and individual rights”. We simply do not have a responsible government right now. How can it be responsible when our politicians do not even have the opportunity to meet and speak in the House?
The upper house is the ‘House of Review’. This has become very relevant. In August, documents were produced to the upper house, by the request of MLC David Shoebridge under his parliamentary powers to compel the production of certain documents. These documents, were reported by the ABC to show that Berejiklian personally intervened to help Daryl Maguire get his $5.5m grant. So when, ICAC has announced new public hearings into Gladys Berejiklian’s undeclared conflicts of interest into this (and another) Wagga Wagga grant, it appears these two events may have been linked.
Whatever one thinks of ICAC, what is clear is we need a functioning democracy. It appears it wasn’t really ICAC in the end that pulled the curtain down on Berejiklian’s Premiership, nor was it the ABC. Was it perhaps the upper house, doing its job, on our behalf as our elected representatives, operating as a house of review?
We, the people of NSW, want our parliament elected representatives back centre stage being the ones asking the questions on our behalf. Not the Media. Especially as John Barilaro tells us it was the media’s pressure that led to curfews, even though curfews did little to control COVID-19.
It is also important that the Liberal Party doesn’t lose its label as the group serving ‘The Quiet Australians’. At present, it could be seen as the Party trying to turn us into ‘Quietened Australians’.
In his first remarks as NSW Premier-in-waiting Perrottet said “we want … to get back to the life we love and the freedoms we hold dear”. The first step for him to take now is to immediately re-open both houses of parliament. This would essentially add parliament to the roadmap to reopening, from which it is at present strangely absent.
The parliament has now basically not sat since our new Premier last spoke to parliament on Budget Night over 100 days ago: it’s time for another big day. One that won’t just be ‘Haircut Day’ but also a true ‘Freedom Day’, by re-opening our parliament immediately—the font of our freedoms. NSW citizens were born free.
David Corbett is a Visiting Fellow at the PM Glynn Institute.
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