Day 2 session 4(a)

Friday 24 February 2017

(scribe/author: Robyn Smith)

Session 4:  Broader Governance Reforms #2

Panel:  Graeme Orr, Nicholas Gruen, Peter Timmins (online), Jeff Collins, David Morris, Eric Withnall

Graeme Orr:

Direct Democracy (ie citizen-initiated referenda or CIR).  The Swiss model balances the people against political elites.  Nothing has got off the ground in Australia.  Norfolk Island had them in 1964.  Why haven’t we embraced them?

CIRs could be used for issues like marriage equality, euthanasia and even capital punishment.  Lack of government action on these issues is timid governance.  Citizens’ referenda are very good on these issues because they are value laden.

CIRs work well in homogeneous communities, so is the NT capable of adopting them?

You do need safeguards.  For example, perhaps a CIR has a higher bar than other things and might need 55% of the vote to pass or a majority of people in a majority of electorates.  New Zealand has it and it’s hardly been used at all.

CIRs have to set the values rather than the technicalities of the law.

CIRs nearly bankrupted the state of California and resulted in a fragmentary government.

Nicholas Gruen:

  • CIR over my dead body!
  • The mission is to save democracy. I am shocked by the notion that democracy equals elections.
  • The legitimacy of government is shaky. There’s an absence of deliberation in what is 24/7 campaigning.
  • Citizens’ juries are good. It’s remarkable how people rise to the occasion.  There’s educative power in engaging people, as there has been for some years with court juries.
  • Australia has a good record in Citizens’ Juries (referenda).
  • I propose an additional House of parliament to be a Citizens Jury. It could be 200 people chosen by lots.  Give them the matter of climate change.  A simple majority delays legislation.  A super majority halts it.  In the alternative, you could impose a secret ballot in both Chambers to determine a decision.  Section 57 mechanisms provide for joint sittings.
  • We could establish a Citizens Chamber 100 days before an election and could crowd fund it.

Peter Timmins (online):

  • Deliberative democracy and all democracy requires that the public has a right to know.
  • The NT should have information law and practises fit for the 21st Legislation was enacted in the NT in 2003.
  • Tony Blair wrote that he was profoundly stupid to have introduced it in the UK.
  • FOI kicked off in the 1960s. Many countries have it now and it is essential to democracy.
  • S160 of the NT Information Act needs to be dusted off. A review was required after five years yet nothing has eventuated.
  • In the NT, you need to look at governmental culture (that is, information held by the government is owned by the government, not the people). Sir Humphrey Appleby once asked his Minister whether he wanted openness or government because he couldn’t have both.
  • In the NT, the size of demand for access to information has to be weighed against resources devoted to providing it.
  • The NT needs to consider the digital world. Public expectations are shaped by Dr Google, FOI requires that someone completes and lodges a hard copy form, then waits for 30 days, pay for it and be told ‘no’.
  • Publicly accessible information should and must include travel undertaken by MLAs. It should and must include contract management and procurement including unsuccessful tender bids and milestones of the project as they’re achieved.
  • Government should be required to publish reasons for decisions.

Jeff Collins:

  • We need to look at a better form of FOI legislation.
  • The Select Committee on the Opening of Parliament to the People is looking at the Queensland system of portfolio Committees.
  • The NT Committee’s Terms of Reference are:
  1. A Select Committee on the subject of Opening Parliament to the People be appointed comprising the Members for Fong Lim, Stuart, Sanderson, Karama, Daly, Nelson and Araluen.
  2. The Committee is to inquire into options for parliamentary reform, particularly increased participation in the legislative process and policy debates and improving the effectiveness of Question Time, having regard to, among other things, the Parliamentary Reform – Opening Parliament to the People (Labor Policy Discussion Paper) and Restoring Integrity to Government – Trust and Integrity Reform Discussion Papers published by the then Opposition ahead of the Northern Territory Election and the Discussion Paper on Assembly Committee Reform tabled by the Speaker on 25 August 2015 and other proposals which the 12th Assembly Standing Orders Committee deferred for consideration of the 13th Assembly.
  3. The Committee is to report to the Assembly by 31 March 2017.
  • Unicameralism can give rise to arrogance in governments with a large or small majority.
  • A Green Paper was tabled during the second week of the 13th Assembly and recommended the adoption of the Queensland portfolio model.
  • A White Paper is being finalised subject to agreement on petitions and whether parliament should debate certain petitions. The White Paper includes these recommendations:
  • The Assembly will have two Portfolio Committees of seven Members.
  • All legislation will be referred for consideration.
  • Procedural bills will be referred, but will be returned to the Assembly quickly.
  • Committees will call for submissions and having public hearings in respect of Bills.
  • Committees will report back to the Assembly prior to the second reading.
  • Government can accept or reject Committee Amendments.
  • This opens up the process to public scrutiny. The most difficult part is engaging the community.

David Morris (online):

  • Reasons for Planning decisions should be made public at no cost. It’s a shift in thinking to disclosure in the public interest.
  • Use the Right to Know web site (https://www.righttoknow.org.au/)
  • In Planning, I’ve seen perceived corruption and perceived bias. There are easy remedies.  We need to take the politics out of Planning.  People need more confidence in the system.
  • Introduction of Third Party Merits Review by the NTCAT would serve to enhance the quality of reasons in the first instance.
  • Enforcement of the Planning Act is critical. It is not there for the government; people should be able to enforce the Act, but that’s not possible in the Northern Territory.
  • There needs to be adequacy in the reasons for all decisions by government departments and authorities. Ability for the Supreme Court to invalidate decisions on the basis of inadequacy of reasons would improve decision making across the board in the Northern Territory.

Eric Withnall:

  • ICAC can coerce testimony and is a big step away from the notion of protection against self-incrimination.
  • It undermines the purpose of the judicial system and is a permanent royal commission.
  • There are various models around Australia. The NSW model is inherently populist and is a monster creation.
  • O’Farrell and the wine in NSW was actually about prohibited donors and gifts, not about the wine itself of the fact that O’Farrell ‘forgot’.
  • An ICAC is not a cure-all. It has to work within existing laws so if property developer donations are legal, there is nothing for ICAC to investigate.  Likewise with tenders.
  • We have many independent officers in the NT including the Ombudsman, Auditor-General, Information Commissioner, etc, all with investigative powers. Amend their legislation instead of introducing an ICAC.

Panel Discussion:

  • Comment from Rosemary Jacob: revision of environmental law in the NT is critical.
  • Question from Trevor Jenkins: would a Land and Environment Court be possible in the NT?  Response:  That’s what David was suggesting by a specialist division of NTCAT.  On Rosemary’s point, David is a strong advocate of a Climate Change Act against which all bills and decisions are assessed.
  • Jeff Collins: A review of the Information Act is under way, but I’m unsure of the timeframe.
  • Comment from Clare Martin: I have no regrets about introducing FOI legislation.  Yes, it should be reviewed as soon as possible.  It made one think through decisions carefully.  Yes, it is time to update publicly accessibly information.