TERRENCE FARRELL
ON JANUARY 28, Senator Wade Mark introduced a motion in the Senate on "parliamentary autonomy." As Mark reminded us, it was not the first time that this issue had been raised in the Senate and, indeed, he also reminded the Senate that, following unanimous support in that chamber in 2018, promises had been made by the then attorney general in 2019 to make his best efforts to introduce legislation to implement parliamentary autonomy.
Parenthetically, Mark, both in his current capacity and his former capacity as Speaker, has been a consistent champion of the cause of parliamentary autonomy.
Senator Anthony Vieira weighed in on the debate in full support of the motion and roundly castigated the government side for its dilatory approach to what is a fundamental governance issue requiring rectification.
For its part, the government’s attempt to explain its lack of action on the issue, the promises of the former attorney general notwithstanding, lacked coherence and conviction.
Vieira wanted a definite timeframe for enabling legislation within the remaining life of the current Parliament. In fact, on a motion on the adjournment, Vieira raised the related question of "judicial independence" and "judicial autonomy," citing the remarks of the Chief Justice at the opening of the Law Term.
The doctrine of the separation of powers which underlies the demand for parliamentary and judicial "autonomy" is realised differently in different jurisdictions. In no jurisdiction are the three traditional branches of the state – executive, judiciary and legislature – completely separate from each other, because they simply cannot be.
One unbreakable link is simply money! All branches need money from the national Treasury to carry out their functions and while the Parliament may authorise appropriations through taxation and borrowing, expenditure under the national budget is largely under the control of the executive. The worry is that the executive uses its control over the public purse to bend either the Parliament or the judiciary to do its bidding.
Mark asked rhetorically: why should the executive be able to control the travel of parliamentarians on Parliament business, a point raised similarly by former chief justice de la Bastide in his conflict with the then attorney general.
A second nexus is membership. While members of the executive and the Parliament cannot be members of the judicial branch, in our system of government, there is considerable overlap between the memberships of the executive and the Parliament.
This overlap is so extensive that there is effectively no backbench in the House of Representatives, with most members on the government side in that chamber and some in the Senate having full-time jobs as government ministers. This is dysfunctional in that it severely compromises the ability of the Parliament to hold the government to account.
The National Advisory Committee on Constitutional Reform (NACCR) was fully in support of both judicial independence and greater administrative
