New South Wales was once the sole colony of Australia. In the 1850's Australians started demanding forms of self-government which fitted in with British policy of the time. After a battle over what form this new self-government would take, in which William Wentworth tried to establish a titled Legislative Council, a westminster form of responsible government was established. This left the Republicans disappointed, as well as those that wanted innovation such as a Bill of Rights included.

Since then the NSW Constitution has been amended often , in the last ten years being rather innovative for Australian government institutions for establishing a fixed term election period. More recently a Constitutional Amendment has been proposed which would remove all mentions of the Monarchy from the NSW Constitution.

History

In 1851 Victoria separated from NSW and two years later the NSW Constitution was approved . In 1856 the NSW Parliament became a bi-cameral entity with a Legislative Assembly as the lower house, and a Legislative Council as the Upper House. The Legislative Council was appointed by the Governor and had property qualifications to meet. In 1933 this was changed to the Assembly appointing the Legislative Council until 1978 when the Legislative Council became popularly elected through proportional representation.

Jack Lang in 1925 attempted to stack the Legislative Council by adding twenty five new members which were supposed to act as a "suicide squad" and abolish the Legislative Council, similar to what had happened in Queensland. The attempt failed by six votes. In 1929 the Nationalist government entrenched the Legislative Council in the Constitution.

The Legislative Assembly has gone through growth and contractions in numbers. Recently the contractions have been done by sitting governments in order to gain electoral advantage. The shrinking of the number of members by Greiner and Carr, by ten and six members respectively, was to force redistributions. Rodney Smith notes that;

Partisan motives, rather than population size or debates about adequate representation, have driven changes to the size of the Assembly.

The last three decades in the 20thC led to a great deal of electoral reform. But again this was propelled by partisan advantage. The Wran government return to optional preferential voting in 1979 was to reduce informal voting which hurt Labor. The Greiner Government added a single tick or cross innovation in 1990 which disadvantaged Labor in informal voting. In 1995, the Carr Government, acting in their own party political self-interest enacted formal ticks and crosses again.

NSW Government has suffered from the static nature of modern government . Wran (ALP) held power from 1976 until 1986 and Unsworth (ALP) for two years beyond Wran. Greiner (LIB) and Fahey (LIB) held power from 1988 to 1995, and since then the Carr (ALP) Government has held power. Rodney Smith writes on the pattern of office-holding in NSW;

The post-war pattern of party dominance occurred less by default than through government manipulation of electoral systems and use of public policy to shore up support in apparently wavering electoral districts. ...

The fall of post-war NSW governments has had more to do with policy exhaustion, electoral dissatisfaction over government management and the build-up of perceptions of government corruption than the retirement of strong leaders.

This quote may well be the answer to my previous diary .

The Legislature

The NSW Constitution contains sections which explain the different arms of government and their responsibilities. There are several meta-sections which seem to overlap in subject with other sections. For instance Part 2 section 5 limits the Assembly to raising taxes.

Provided that all Bills for appropriating any part of the public revenue, or for imposing any new rate, tax or impost, shall originate in the Legislative Assembly.

The NSW Constitution allows for some parts of the constitution to be amended by the Assembly or Council without referendum. This has come about by successive governments seeking to entrench constitutional aspects of government. The NSW Constitution has been amended quite a bit in its history . Section 7B for instance shows explicit limits on the ability of the Assembly to modify the Constitution;

A Bill that:

(a) expressly or impliedly repeals or amends section 11B, 26, 27, 28 or 29, Part 9, the Seventh Schedule or this section, or

(b) contains any provision to reduce or extend, or to authorise the reduction or extension of, the duration of any Legislative Assembly or to alter the date required to be named for the taking of the poll in the writs for a general election,

shall not be presented to the Governor for Her Majesty's assent until the Bill has been approved by the electors in accordance with this section.

Despite the entrenching of many constitutional provisions, this has not stopped referendums being passed at the electoral level with strong majorities. For example;

• 69% : Four year term for Legislative Assembly (1981)
• 75.5% : Fixed term for Legislative Assembly (1995)
• 65.9% : Judicial independence (1995)

By the same token, in 1961 a referendum to abolish the Legislative Council did not pass as only 42.4% voted yes.

The Constitution limits the amount of time between sittings of parliament to a maximum of twelve months. The Legislative section also contains in section 11B the clause for compulsory voting.

A person who is entitled to vote at a periodic Council election or the election of a Member of the Legislative Assembly shall vote at the election and if he does not do so shall be liable to such penalty as may be provided by law.

A Parliamentary Representative can have their seat vacated for many reasons including parliamentary truancy, treason, crime conviction and remarkably for bankrupcy. Members of one house are ineligible to sit in another house as well.

Governor

The formal Executive consists of the Governor, Lieutenant Governor and the Administrator of the State. The Administrator of the state can be the Chief Justice, unless the Chief Justice is the Lieutenant Governor.

A Governor also has four weeks to get better, otherwise the Lieutenant Governor or Administrator will step in to fulfil the Governor's duties. The Constitution also limits who the Governor can appoint to maintain the Governor tasks. It must be done with the consent of the Premier.

The Constitution also limits the Governor to earning a salary of $80,000 a year.

Legislative Council

The Legislative Council has contracted in recent years to forty-two. Its height was one hundred and forty five members. At each state election half of the Legislative Council is up for election. This means that each Legislative Council members sits for eight years before either retiring or being up for re-election. The Legislative Council does not represent an electorate but rather, the whole state.

Proportional representation, like in the Federal Senate has helped to diversify the parties that are represented. No party has had a majority in the Legislative Council since 1988. The current members are;

• 18 Australian Labor Party
• 9 Liberal Party of NSW
• 4 The Nationals (NSW)
• 3 The Greens
• 2 Christian Democratic Group
• 1 Australian Democrats
• 1 One Nation NSW
• 1 Outdoor Recreation Party
• 1 Reform The Legal System
• 1 Shooters Party
• 1 Unity

The Legislative Council also operates the Committees which serve to review the legislation and operations of the Legislative Assembly. The public is able to make submissions among other things to the Committees.

The Legislative Council also contains a President, who presides over the meetings of the Council. The President also notifies the Governor of any vacancies that occur in the Council. The President also has the casting vote in any tie that occurs in the Council. When the President is unable to maintain their duties, the Chairman of Committees takes the Presidents place.

Legislative Assembly

The Constitution limits the Legislative Assembly to 93 members. Currently there are fifty five ALP members, thirty-two coalition members and six independents. The amendment in 1995 put fixed term elections into the NSW Constitution. The referendum contained the language;

A Bill for an Act to require the Parliament of New South Wales to serve full 4 year terms and to prevent politicians calling early elections or changing these new constitutional rules without a further referendum.

There is however Constitutional language to enable a government to have an early election, if certain circumstances in Section 24B are met.

The Legislative Assembly may be dissolved if:

(a) a motion of no confidence in the Government is passed by the Legislative Assembly (being a motion of which not less than 3 clear days' notice has been given in the Legislative Assembly), and

(b) during the period commencing on the passage of the motion of no confidence and ending 8 clear days thereafter, the Legislative Assembly has not passed a motion of confidence in the then Government.

After the motion of no confidence is passed, the Legislative Assembly may not be prorogued before the end of that 8-day period and may not be adjourned for a period extending beyond that 8-day period, unless the motion of confidence has been passed.

(3) The Legislative Assembly may be dissolved if it:

(a) rejects a Bill which appropriates revenue or moneys for the ordinary annual services of the Government, or

(b) fails to pass such a Bill before the time that the Governor considers that the appropriation is required.

This subsection does not apply to a Bill which appropriates revenue or moneys for the Legislature only.

This same section also lays out some of the Reserve Powers that the Governor has. Subsection five allows for the Governor to dissolve the Legislative Assembly in circumstances other than in subsections 2-4, against the Premiers advice as well. It also allows for the Governor to choose a viable alternate government and Premier if the Governor dissolves the previous government.

These do not specify explicit circumstances which allow the Governor to dissolve the government. This is fitting within the basis of responsible government where there is an implied nature to action. A government has been dismissed in NSW once previously. The government of Jack Lang was dismissed by Sir Phillip Game in the 1930's. During this period NSW and the Federal Government were on the brink of Civil War. Since the Governor's powers are implied, it is still debated whether Game was acting constitutionally.

The presiding position over the Legislative Assembly is the Speaker. In the Speaker's absence the Deputy Speaker takes over the Speaker's duties. The Speaker is chosen by secret ballot with a run off form of voting until the winner is found. If there is a tie in the runoff between the final two candidates, then the Clerk of the Assembly or another presiding over the runoff shall determine the winner.

The Assembly also accepts petitions from the people. This is the means to air grievances with the government.

Executive Council

The NSW Constitution contains explicit recognition of the Executive Council as the legislative advisory to the Governor. The Executive Council is appointed by the Governor, with the Governor also appointing one of the members of the council as the Vice-President of the Executive Council.

The Governor heads this Council. By reading the Constitution it would appear that the Governor is the formal authority in the Council. The truth is, a reading of the Constitution does not bear any similarity to the operational process. The Premier is the leading member of the Assembly for the party that can form a government. The Premier then builds a ministry or cabinet. The Governor appoints these positions on the advice of the Premier.

The Constitution also mentions Minsters of the Crown and Parliamentary Secretaries explicitly as well. The Governor appoints the Ministers, while the Premier appoints the Parliamentary Secretaries. Again it is the Premier which chooses the ministers and advises the Governor. A Secretary's office remains until, amongst other things, the Premier who appointed them ceases to be Premier. This is contained in 38D;

(a) if he dies,

(b) if the person by whom he was appointed as such ceases to be Premier,

(c) if he resigns his office as such by writing under his hand addressed to the Premier,

(d) if he is removed from office as such by the Premier,

(e) if his seat as a Member of either House of Parliament becomes vacant, otherwise than by reason of the fact that the Legislative Assembly has been dissolved or has expired by the effluxion of time, or

(f) upon the day appointed for the taking of the poll for the general election of Members of the Legislative Assembly next following his appointment to hold that office.

The embedding of the formal Executive powers into the Legislative arm of government is the weakest part of the Westminster system. The NSW Constitution at least mentions the Executive Council explicitly. Something the Federal Constitution does not do.

Judicial

The highest courts in NSW are the Supreme Court, the Industrial Court and the Land and Environment Court.

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Since the Commonwealth enacted Freedom of Information [FOI] legislation in 1982, the States and Territories have followed suit with their own Freedom of Information legislation in that odd homogeneous manner in which government is conducted in Australia. In NSW the Freedom of Information Act was introduced by the Greiner Government in 1989 and it has since been amended a few times to incorporate local government and to reduce wait times.

In NSW the Ombudsman deals with FOI inquiries about other departments not responding to FOI requests. This function of the NSW Ombudsman was placed under Schedule 2 of the NSW FOI act effectively removing it from the public eyes. From the NSW Ombudsman site;

Why you can't get access to some documents held by the Ombudsman

In January 1991 the Ombudsman's office was included in Schedule 2 of the FOI Act. This means that we are no longer required to determine FOI applications for information about our investigative, complaint handling and reporting functions.

Some of our documents do not fall into the categories of investigative, complaint handling and reporting functions and are therefore still subject to the FOI Act.

Which seems a pretty cynical move by the government. In the mid-90s the NSW Ombudsman's office was fairly critical of the FOI and released several reports on the FOI including; Freedom of Information - the way ahead. Which is sadly not on the internet.

There is surprisingly little information around on the NSW FOI and how it is going or being conducted. It was enacted prior to the internet kicking as an informational archive and even recent discussion of it in the NSW Hansard is pretty sparse. Though Ian Armstrong in 2003 made a speech of public importance and the following debate which describes the purpose of the FOI well;

I raise a matter of extreme importance to the people of New South Wales and point out the responsibilities of government and the Parliament. Many things are incumbent upon members of Parliament, the Parliament itself and particularly the Government of the day, irrespective of its persuasion. A primary responsibility is communication between people and those elected to power: the Government. That communication must be open, honest and in a form that is understood by the average person. Proper communication is necessary for the good conduct of business, commerce, culture and recreation. It will help to improve the quality of life, to ensure that New South Wales prospers and that people receive what they are reasonably entitled to expect.

Business cannot operate properly without co-operation between the customer and business. The art of communication is extremely important; that is, communication between a service station attendant, a butcher, a doctor, factory operators or officers of the local shire to ensure that the shire and ratepayers have a good relationship and that the system works. The former conservative Government introduced the Freedom of Information Act. Under that legislation any citizen may apply to have information made available about a particular event, legislation or responsibilities under the management of the Government of the day. The Act is voluminous and contains certain exclusions.

These exemptions are primarily matters of significance in that they may compromise the Government in the exercise of its responsibilities, such as a matter of national or local security. Also, the legislation seeks to respect the privacy of individuals who deal with government matters on a daily basis. Those matters, quite rightly, are protected through the freedom of information legislation. However, since the introduction of the Act, from time to time successive governments have refused certain applications, but only very few.

Sinclair complains about a refusal which he believes expands the meaning of confidence and internal debate on decision making. The next day there was a debate, or more accurately a 'politics as sport' spat. Ian Armstrong summates with;

I simply reinforce that the matter of public importance is clear: It is accessing government information. That allows for the canvassing of any information for which the Government might be responsible and over which it has jurisdiction. Effectively, that is all matters which affect government, commerce and industry in this State.

A research paper from 2000 states that the aim of FOI legislation is;

The fundamental aim of FOI legislation is to promote and enhance the processes of democracy and representative government by increasing access to government information. FOI legislation aims to: provide open and accountable government; increase public participation in government decision-making; ensure that personal information held by the government is relevant, accurate, up to date and complete; and enable individuals to be kept informed of government decision-making processes that affect them.

It has also been recognised that government information is a valuable public resource that is collected and created with public money for public purposes. In this sense, government information belongs to the public, and governments are "trustees" of that information on behalf of the public. It follows from this that government information should generally be accessible to the public.

Further, it has been recognised that inappropriate government secrecy can allow corrupt practices to flourish, and that FOI and other accountability mechanisms help to protect against corruption.

One of the questions is whether it has achieved those objectives, Abigail Rath's research paper;

There appears to be consensus that the FOI Act has worked well in relation to providing access to personal information. More controversial is the question of whether the Act has achieved the objectives of open and accountable government and public participation in government decision-making. Many commentators, including the Ombudsman, Auditor-General, politicians, journalists and academics have expressed the view that too much government secrecy still exists.

Lee Rhiannon of the NSW Greens recently released a statement which stated that over the last ten years the percentage of documents that have been released in full has dropped from 84% to 63%.

So it looks like on the open and transparent government side of things there could be improvement.

More Information

• NSW Council for Civil Liberties - Freedom of Information
• NSW Research Paper: Freedom of Information and Open Government

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