This is a guest post by Darwin-based legal academic Ken Parish* that was presented at the Northern Territory Archives Centre in Darwin on Thursday 28 June 2018. \.

The Gunner Labor government came to office last August promising to restore the trust of Territorians in government, after it had been shattered by four years of chaos, division and dubious or worse ethical behaviour by various members of the Giles CLP regime. Enacting and boosting safeguards ensuring accountability and transparency were to be at the forefront of the new Government’s program.

After 9 months in office, how are they going? In my assessment the record is none too impressive.

MLAs’ financial interests

A modest but worthwhile initiative to publish MLAs’ registrable interests (financial and property) online has been implemented. However it appears that it will only be published online annually, whereas the Legislative Assembly (Disclosure of Interests) Act requires any alteration of interests to be notified to the Clerk within 28 days. Accordingly the online register is of extremely limited value as a transparency/accountability measure. There is no obvious reason why the online Register should not be updated in real time so we are in a position to know whether a MLA has a conflict of interest in performing his or her duties to Territorians.

Political donations

One of the Gunner government’s election promises was to convene an inquiry to look at reforming political donations laws. There appears to have been some funding for that initiative in the May budget, but as far as I am aware it has not yet been convened or anyone appointed to conduct it.(1)

In the meantime the Gunner government moved in Parliament a couple of weeks ago to enshrine in legislation its seemingly hasty decision late last year to impose a previously unannounced “policy” for a maximum floor area of 400 square metres for takeaway liquor outlets.  The effect of the initial decision was to prevent the national Woolworths-owned Dan Murphy’s chain from establishing a store in Darwin. The effect of including that ban in parliamentary legislation, as opposed to mere subordinate legislation, will almost certainly be to prevent the circumstances surrounding the decision (including any connection with rather large donations to the ALP by interests associated with the Australian Hotels Association, whose members stand to benefit from the exclusion of Dan Murphy’s) from being probed by the Federal Court in proceedings commenced by Woolworths.

Anti-corruption commission

Similarly, the Gunner government promised to implement a local Independent Commission Against Corruption, an important accountability mechanism that exists in every other state and territory (although not yet at federal level). The NT ICAC has been funded to the tune of $3 million in the 2017-18 Budget, but for inadequately explained reasons won’t actually commence until the second half of next year. In the meantime neither the Ombudsman nor Commissioner for Public Interest Disclosures has the power to investigate alleged misdeeds by politicians or their staffers.

Whether the new ICAC once established would be given the power to investigate dubious actions occurring prior to its commencement (e.g. numerous Giles government actions and the ALP’s Dan Murphy’s shenanigans) is yet to be seen, but we can fairly safely predict that the answer will be no.

Essentially that is the sum total of accountability and transparency measures the Gunner (Gunna?) regime has moved to introduce. Otherwise the record is one of unfulfilled promises, inaction and in some cases actions that have actually reduced the Government’s effective accountability to the public.

Resourcing of Independent MLAs

In the latter category is Mr Gunner’s refusal to provide any extra staffing or resources (other than 2 parliamentary library staff shared between all of them) to the 5 Independent MLAs in the Legislative Assembly. The two CLP MLAs were deemed to be the official “Opposition” and given all the resources that accompany Opposition status. Most importantly that includes funding allowing the employment of 11 or so staffers, who always include portfolio experts like economists, lawyers, and health, education and other experts. Their assistance is vital to allow the MLAs to subject the Government to effective scrutiny and oversight, a fundamental purpose of Parliament in a Westminster system.

In the NT Legislative Assembly that scrutiny function can now only be performed in a reasonably effective manner by the two CLP MLAs. Even though the five Independents include very capable and experienced members like Gerry Wood and Terry Mills, their general parliamentary experience cannot compensate for their complete lack of expert staffing resources. There is no proper reason for Mr Gunner to have refused to fund those resources.

The expense is minimal in the context of a $7 billion annual Budget. It is difficult to avoid the conclusion that the new Chief Minister has cynically taken advantage of NT voters’ wholesale rejection of the CLP to achieve almost complete immunity from effective parliamentary scrutiny for his own government.

Reduction in parliamentary scrutiny

That impression is confirmed when we examine the fate in the last Parliamentary Sittings of the recommendations of the somewhat ironically titled Select Committee for Opening Parliament to the People. It made some excellent recommendations in its green paper, but many were watered down in the final report, seemingly under pressure (“expressed a strong preference”) from the Government(2). The remaining recommendations in the final report that the Government disliked were either rejected outright or referred to the Standing Orders Committee where they will no doubt be further neutered before being returned the Assembly for enactment(3).

The most crucial example is that the Select Committee’s (reluctantly watered down) final recommendation on the annual fiscal Estimates process being undertaken by a single Estimates Committee rather than the two initially proposed portfolio-based scrutiny committees have been cynically used by the Government as a flimsy pretext for halving the available time for parliamentary scrutiny of the Government’s Budget by the Estimates Committee from 60 hours to just 30.

The pretext for this seemingly outrageous reduction in parliamentary scrutiny of the  Government’s fiscal record and intentions is that the Estimates Committee would get to use the other 30 hours for scrutinising the Annual Reports of government departments and agencies in November each year. But there are at least three fundamental problems with that excuse:

  • As noted earlier, the Independent Members of the Estimates Committee have no expert staff resources that would allow them effectively to scrutinise Annual Reports and ask meaningful questions with any real chance of uncovering problems;
  • The Government rejected a recommendation by the Select Committee that it consider giving the Auditor-General the power to conduct performance audits of any department or agency. This is a power that every other auditor-general in Australia possesses but the NT’s Auditor-General does not. As the Select Committee noted:

The Committee considers that the Auditor-General can play an important role in assisting the committees understanding performance information and developing a systematic approach to analysing it. However, the Committee notes that the Auditor-General’s ability to assist the committees in this regard is somewhat constrained compared to other Auditors-General throughout Australia due to the lack of a function to audit the actual effectiveness, efficiency and economy of Agencies in meeting their objectives. Enabling the Auditor-General to bring their professional expertise to assist the committees in the examination of performance information would facilitate a more focussed scrutiny of Annual Reports.

  • Departments and agencies themselves are not legally required to report on their own effectiveness or efficiency and so most do not do so.

The end result is that the Northern Territory, alone of all Australian states and territories, has no proper system at all for independent scrutiny of government departments’ efficiency or effectiveness in spending taxpayers’ money. Given that more than 80% of the Territory’s revenue comes from the Commonwealth, it is reasonable to wonder why the federal government has not intervened to impose basic standards of fiscal scrutiny and accountability that are taken for granted everywhere else.

Ministers’ post-politics employment

I have written on this subject previously here at The Summit. As I observed then, some other states (most notably New South Wales and Victoria) have significantly stronger restrictions on Ministers’ post-politics employment. The need for stronger protections is obvious from various revelations about the behaviour of former Chief Minister Adam Giles in relation to Hancock Prospecting and the Halikos group, and former Housing Minister Bess Price in relation to Zodiac Business Services. As recently as today, a story by the NT News’ Christopher Walsh gave more details of seemingly dubious circumstances surrounding the awarding of multi-million dollar contracts to Ms Price’s new employer Zodiac. Despite that, the story notes that little has been done by the Gunner government.  Seemingly no bureaucrat has been subjected to any form of disciplinary action, although:

A spokesman for Chief Minister Michael Gunner said new procurement processes were put in place and that the Government is “considering … further action”, but did not elaborate.

The Report Card?

The Gunner government’s end of semester Report Card gives it a fairly miserable failing D grade in the subject Accountability and Transparency.

Teacher’s comment: “Occasional glimpses of promise and a marginal improvement on last year’s class (the worst the school has ever had) but much more effort is needed”.

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Footnotes

1. Moreover, the defects in the current system are manifest and don’t need a prolonged inquiry before fixing them. It is hard to avoid the conclusion that the “inquiry” is just a pretext to delay taking effective action. At present donations to political parties don’t have to be disclosed until 20 weeks after the financial year in which they are made – Part 10 Division 3 of the Electoral Act – section 194. The practical effect is that big donations aren’t declared until at the very least many months after the Territory election at which all Territory voters should be entitled to know whether and to what extent the parties for which they are voting may be unduly influenced and acting at the behest of vested private interests who have made large donations. Even worse, in the case of donations made after 30 June in an election year, the public won’t know about those until 18 months after the donation was made, a time long after the election that the donation was intended to influence. This situation could be readily remedied by legislating for real time (within 28 days) online disclosure of all donations to parties of more than $1500. There would no doubt be a modest expense involved in establishing and maintaining such a system, but it is a critical component of any credible democratic system to restore integrity to our electoral system, and there is no need whatever for a formal inquiry before establishing it.

2. For example, the green paper recommended that the fiscal Estimates process also be undertaken by the two new portfolio-based scrutiny committees it also recommended, along with the functions previously performed by the Public Accounts Committee and Subordinate Legislation Committee. The effect of that would have been that each of those committees would have had one week (30 hours) to examine the Budget and 30 hours to examine departmental annual reports. That would have meant no net reduction in committee scrutiny of the Budget below the current 60 hours. Instead the Select Committee appears to have been pressured into agreeing that the entire Estimates function would be undertaken by a separate Estimates Committee. It was that coerced capitulation which led to the halving of Parliamentary scrutiny of the Budget discussed below.

3. For example, the crucial recommendation for enhanced powers for the Auditor-General – recommendation 16 – was rejected outright, as was a recommendation that Territorians have the ability to require a complaint by an aggrieved person about the operation of subordinate legislation to be heard by the relevant portfolio scrutiny committee – recommendation 14, while a recommendation requiring tabled petitions containing not less than 1000 signatures to be debated by the Legislative Assembly (not just tabled and ignored as occurs at present) was referred to the Standing Orders Committee where it will no doubt be neutered before implementation – Recommendation 23. Finally, the Committee’s eminently sensible recommendation that the responsibilities of the two new scrutiny committees be organised on the basis of portfolio responsibility – Recommendations 1-4 inclusive – was rejected in favour of the Government’s preference for policies organised around vague descriptions of social and economic policy. As the Select Committee pointed out, the Government’s preferred/unilaterally imposed organisational division of responsibility between the two scrutiny committees is inherently confusing and problematic, in that many Bills before the Parliament have both social and economic dimensions.

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* About Ken Parish: Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.

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