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In NSW, as in every other jurisdiction in the country, parliamentary committees play an important role in accountability and transparency of government. They allow MPs from all political affiliations to investigate issues, review laws and scrutinise government decisions.
When it was in opposition, Labor made good use of the parliamentary committee process to hold the Coalition to account. One inquiry investigated the shredding of documents by staff in then-premier Gladys Berejiklian’s office, another examined scandal-plagued Hills Shire Council, which is now the focus of an ICAC investigation, and it was a parliamentary committee that probed the controversial appointment of former Nationals leader John Barilaro as New York trade commissioner.
A key element of these committees has long been their ability to compel people to provide evidence. In NSW, witnesses have long understood they might be subject to an arrest warrant from a judge if they failed to show up. Some have gone to great lengths to avoid being asked, to escape the consequences of refusal; four Liberal party members, including then-premier Dominic Perrottet’s own brother, went missing when the committee investigating the Hills Shire Council tried to serve them with summonses.
Committees in NSW can no longer threaten legal consequences for those who fail to turn up, thanks to a court challenge by James Cullen, chief of staff to NSW Premier Chris Minns.
In October, Cullen sued the NSW parliament to avoid attending a hearing examining the leaking of confidential minutes from a report into the now-abandoned proposal to redevelop Rosehill Racecourse for housing. His point was that it’s ministers rather than staff who should be accountable in a parliamentary democracy.
But his legal argument was about the wording of the legislation, and he won. The court found the terminology in the relevant act – that a judge “shall” issue a warrant for the person’s arrest – did not provide sufficient impartiality for the court. So, as a result, NSW parliamentary committees have no powers of compulsion.
As Michael McGowan reported on Saturday, the decision has led to witnesses refusing to attend a series of high-profile committee matters, including an inquiry into mould and maggot issues at the Calvary Mater Hospital in Newcastle, and another into allegations the DPP gave information to 2GB that sparked a negative story about a judge.
The Legislative Council is appealing the decision in Cullen’s case to the High Court. Taxpayers are footing the bill in a case likely to cost in excess of $1 million and last several months.
There’s an even greater cost to the people of NSW, however: the hobbling of the democratic process. Committees are vital to accountability in this state. They probe, expose and hold the government to account. This unseemly battle has left them de-fanged, and the voters of this state less informed.
Premier Chris Minns could fix the problem by introducing an amendment to the legislation to close the loophole. Opposition and crossbench MPs could demonstrate their good faith by supporting it. As it stands now, however, the animosity on both sides of the argument is preventing a solution, and in the meantime the public is carrying the cost.
The Legislative Council has already passed a bill restoring the committees’ power, but the government says it is unworkable and won’t move it in the lower house. Nor will they move their own bill, saying they want to let the court case play out first.
For the moment, both sides of this argument seem happier to have a political fight than to find a solution. At a time when trust in established political parties is at a low ebb, they should reflect on what that says to the voters funding their litigation.
Jordan Baker sends a newsletter to subscribers each week. Sign up to receive her Note from the Editor.
