Day 2 session 3(a)

Friday 24 February 2017

(scribe/author: Robyn Smith

Session 3:  Broader Governance Reforms #1

Panel:  Ken Coghill, Ian Fraser, Duncan McConnell, Graham Nicholson, Ken Parish

Ken Coghill:

  • There are three areas of systemic failure: (1) the nature of democracy; (2) closed government; and (3) public office-public trust issues.
  • (1) Democracy between elections and representative democracy generally is under challenge in many jurisdictions. It has become restricted to casting a vote every three or four years with only powerlessness in the interim.  The solution is empowerment and involvement in decision making.  For example, the City of Melbourne wanted a 5-10 year Strategic Plan and involved a People’s Panel to advise on strategic development and rating issues.  That is, it was a Citizens Jury.
  • (2) There is an Open Government Partnership in which some 70 countries worldwide are committed to open government over a two year period. It’s a multilateral initiative and commitments entered into were determined on a 50-50 basis by citizens and government.  It involves matters such as increased information about government activities, integrity, openness and accountability via technology, etc.  It is structured in such a way that citizens have input.
  • (3) There is a belief in the community that MPs should put the public interest ahead of their own or other private interests. It’s a non-judicial principle but is becoming less so.  Cited examples in Iceland, the Netherlands and the USA where there has been atmospheric trust litigation in respect of the environment.  The Commonwealth Parliamentary Association (CPA) has guidelines for MP Codes of Conduct.  The NT has a good Code of Conduct for MLAs but no independent investigatory facility because the Privileges Committee (of the Assembly) is judge and Members go easy on other Members.

Ian Fraser:

  • I am a bomb-thrower. Structural reform is the wrong response to the CLP government of the past four years.  Western democracy is in a ditch, operating on a bad theory of democracy.  The aim or ideal is wrong.  It’s a question of what is v what ought to be.  Decision making based on reason is good and decision making based on emotion is bad.  Therefore, facts plus reason plus good faith equal agreement.  Wrong!  But that’s the basic premise of democracy today.  Because of that, we see those who disagree as illegitimate.  Dialogue of the death.  Then democracy becomes electoral democracy, which equals keeping the crazies out.  Democracy works best when it involves persuading people to agree on one issue, then another.  That’s persuasive democracy.  The NT has electoral democracy.

Duncan McConnell:

  • Should the NT have a Charter of Rights? By doing so, state governments have entered into a hitherto federal sphere.  Victoria and the ACT have them.  Victoria’s is more comprehensive.  Most state human rights legislation is by way of anti-discrimination.  The Victorian legislation deals with much broader rights and identifies 20 human rights, but that is not a complete recognition of those in the UN Charter.  The Victorian Charter provides remedy for those affected by a government or public authority in conjunction with an existing right.  It requires courts to interpret statutes with the least intrusion on human rights.
  • It has a third function: legislation that is incompatible with human rights goes back to the Victorian Parliament for reconsideration. The legislation is not invalidated at that point and there is no onus on the Parliament to change it.
  • The Commission has powers of intervention.
  • There are issues with it such as vague definitions, application of the charter to public authorities including private companies undertaking ‘public functions’. This is not defined, but could include a private prison operator and St John Ambulance.  It would include public but not private schools (eg Kormilda College).  The NT Land Corporation would probably be excluded.  The Victorian Legal Aid Commission was ruled a public entity.
  • Questions for the NT are cost of implementation, cost of education, cost of adjudication, etc.
  • Victorian example: transportation of prisoners between prison and court for short mentions and adjournments was deemed too costly, but prisoners have a right to be present when they are on their trial or their matter is being dealt with.  The solution was to install video conferencing facilities in prisons so the prisoners could be present via a link.
  • Under the Victorian model, failure of the NT Government to provide a bus service to the new prison could be a breach where prisoner families are concerned.

Graham Nicholson:

  • Prior to self-government, decisions were often made by an unelected public official from a Commonwealth Government department.
  • Self-government has been a tremendous success. There are good financial arrangements.  The NT has control over its own courts.  S122 of the Constitution remains problematic as long as we remain a territory.  Only statehood will change that.  Entrenchment is only guaranteed by statehood.
  • Good governance is more than legislation. It includes trust, integrity and commitment to the highest standards.
  • The Doctrine of Public Trust is critical. We saw how that failed in the Kenbi Land Claim.  Holding people liable via courts is a good remedy and there will be further development on that.
  • The Westminster system is far better than the Executive system of the USA. Under the Westminster system, there is ministerial responsibility and it comes with the duality of being a private Member.  It contributes to stable government in Australia.

Ken Parish:

  • Liberal democratic constitutionalism means there are checks and balances, but you can’t take it too far because it would choke government.
  • There is support for an ICAC and a Charter of Human Rights, etc, because they are good checks and balances.
  • There are various theories of democratic deliberation, including Agonism. Reasonable minds might and can differ, and they will.  Creating systems to facilitate discussion and understanding is the key.
  • There is a powerful case for legislative cost-benefit analyses for any major development. This would be government imposing a constraint upon itself.  Citizens can then see whether dollars are being spent wisely.
  • There is also a case for a Citizen’s Jury on any proposal to sell public assets. Cited cases of TIO and Darwin Port sales.  These would not be binding on government.
  • Ministerial Codes of Conduct are deficient because there is no sanction. For example, in the cases of Bess Price and Adam Giles in their post-Member employment, no penalty is applicable.  Victoria and NSW have codes with some teeth, requiring that former Members consult a Parliamentary Ethics Commissioner when considering any employment that may conflict with their former Ministerial responsibilities.

Panel Discussion:

  • Question from the floor: how was the wharf precinct development allowed to proceed when it is in a primary surge zone?  The government spent thousands on infrastructure and there was nothing like a Citizens Jury or anything else.  Response from Moderator:  the structural separation of the Power and Water Authority is a case in point.  There was no analysis, there have been major cost blow-outs and it has never been explained.  Ken Parish: the Auditor-General has own-motion powers to undertake investigations.
  • Question from John Bailey: what about extending Citizens Juries to all major decisions?  Could artificial intelligence (AI) do better than human consideration?  Response from Ian Fraser – this would be dangerous because it assumes there’s a ‘right’ answer.  You can do the analysis but it won’t give you a universal truth.  Ken Coghill – experts or AI contribute to human decision making; they don’t make the decisions for you, but they do feed into the process.  Marshall Perron – it’s the government’s job to make those decisions at Cabinet level and Cabinet is very well informed by expert advice.  Too much consultation will bury you in bureaucracy.  Euthanasia is a case in point where the wishes of the electorate are not reflected by parliaments in any state.
  • Moderator to Duncan McConnell about a Charter. Response:  NTCAT is an important first step because it takes workload away from the courts.  Before we get a Charter for Human Rights, check the Victorian experience with big wins on social housing and mental health issues, but some cases have taken six years to resolve.
  • Ken Coghill: no one is proposing endless consultation.  Better decisions come from external input from community and citizens.  Brazil has a policy of participatory budgeting (ie involving citizens) for city councils.
  • Question from the floor to Duncan McConnell: Could Aboriginal people adopt the model as a Charter of Aboriginal Human Rights prior to statehood?  Response:  There is no Aboriginal self-determination recognition in the Victorian Charter.  It is important to map the Northern Territory’s specific requirements prior to adopting anything.
  • Comment from Steve Hatton: the concept of Citizen Recall (of Parliament) was canvassed at the statehood convention.  Ken Coghill – it doesn’t work particularly well.  Recall is clumsy and disruptive.  Engagement is much better.  Steve Hatton – yes, but it should be an option for the people.  I agree with Ken.