I have attached some information about the Australian experience related to the matters the Committee is investigating. I have not gone into great detail, anticipating that you will let me know if I can help you further on any of the matters raised.

  In summary, there are few procedural constraints on the various Parliaments in Australia debating matters pertinent to other jurisdictions and cross-border intervention sometimes ventures as far as our constitutional constraints will allow. That said, it is generally not in anyone's interest to spend time on matters outside their own jurisdiction. In regard to the Territories, over which the Commonwealth of Australia has complete, concurrent jurisdiction, I think Federal Governments have been pleased to not have responsibility for their administration and have recognised that relative freedom from intervention is necessary for effective self government. Of course, this has occurred in a federation where the central government has always been responsible for national issues; local territorial matters sitting awkwardly in the Federal Government's administrative framework.

  In regards to consultation and co-operation between jurisdictions, this mainly occurs at the Ministerial and bureaucratic level. This includes matters for national legislative co-ordination, for which most of the negotiation and agenda setting occurs between heads of governments rather than Parliaments. Of course, members and parliamentary staff frequently consult with each other on various matters but such mechanisms are outside the procedures of the Houses.

7 October 1998

BACKGROUND

  Generally, in State, Commonwealth and Territory Parliaments in Australia the only procedural restriction on debating matters from other jurisdictions is relevance to the local jurisdiction. In practice, the Parliaments are limited by politics rather than any rule of procedure. It is generally not looked on favourably for Parliaments to spend much time dwelling on another jurisdiction's business, although such restraint is often weakened when an election is occurring in that jurisdiction. Of course, the delineation of what is a Parliament's business is sometimes a contentious issue. The interrelationship of interests between jurisdictions makes it possible to characterise most issues as relevant to the local jurisdiction.

CONSTITUTIONAL BACKGROUND AND EXPERIENCE

  The Australian Federation comprises six States and two Territories. The State (or colonial) Parliaments predated the Federal Parliament so the relationship between the State and Commonwealth Parliaments developed in the context of the State Parliaments having an established role. State Parliaments also have significant areas of exclusive jurisdiction. For most of this century, the Territories were administered by the Federal Government until the granting of self-government in 1978 and 1989.

  The relationships between the Australian Federal Government and the Northern Territory and the Australian Capital Territory would be more closely analogous to that of the devolved Parliaments in the United Kingdom as the constitutions of the Territories are Acts of the Federal Parliament. The Federal Parliament has an ultimate jurisdiction over all Territorial matters and any Territorial legislation may be subject to Federal legislation. This is in contrast to the Australian States in which the State Parliaments are sovereign, subject to the Australian Constitution, which can only be changed by a referendum of the people. The Australian Constitution gives the Federal Parliament jurisdiction over certain areas and any Federal Act overrides any conflicting State Act to the extent of any inconsistency. However, the Federal Parliament has no jurisdiction over any State matter outside the matters enumerated in the Australian Constitution.

  The Australian experience in devolving power to the Northern Territory in 1978 and to the Australian Capital Territory in 1989 has been generally successful in establishing autonomous governments, notwithstanding the Federal Parliament's underlying sovereignty, with the Commonwealth generally choosing not to undermine the Territorial Parliaments by direct legislative action but expressing its power in a similar fashion to that used when dealing with the States, most notably through the control of funding, the use of grants tied to specific purposes, and the administration of its national jurisdiction.

  A notable exception to such Commonwealth restraint occurred after the Northern Territory Parliament enacted a law in 1995 to legalise voluntary euthanasia. With much controversy, the Commonwealth Parliament passed a private member's bill in 1997 amending the Northern Territory (Self Government) Act 1978 to remove the Territories capacity to legislate on such matters and thereby repealing the Northern Territory Rights of the Terminally Ill Act 1995.

CONSULTATION BETWEEN PARLIAMENTS

Casual Senate Vacancies

  There is little formal communication between the Houses of Parliament in Australia, except in relation to filling casual vacancies in the Federal Senate. Under the Australian Constitution casual vacancies in the Senate are to be filled by election at a joint sitting of the Parliament of the State which the seat in the Senate represents. Communication on such occasions is by messages to and from the Governor.

Remonstrance from the Northern Territory Parliament

  In response to the Federal Parliament's consideration of repealing the Northern Territory's euthanasia legislation, the Speaker of the Northern Territory Parliament presented a remonstrance signed by members of the House protesting against the reduction of the Territory's self governing powers to the Presiding Officers of the Federal Parliament. The remonstrance procedure reflects a lack of consultation processes between the Parliaments.

Treaties

  One area of increasing concern and calls for consultation between jurisdictions is the signing and ratifying of international treaties. Treaties, while the responsibility of the Federal Executive, often give rise to obligations for State Parliaments. Treaty making is also a contentious issue because an international treaty on any matter may bring the matter within the "external affairs" power under the Australian Constitution and therefore into the jurisdiction of the Federal Parliament. This had led to occasions where the Federal Parliament has passed legislation outside its traditional jurisdiction which has controlled state action, such as the use of World Heritage listing in 1983 to obtain jurisdiction to prevent the construction of a dam in Tasmania and the use of being a signatory of the International Covenant on Civil and Political Rights to obtain jurisdiction to pass "privacy" legislation in 1994 to override Tasmania's laws criminalising homosexuality (see "Parliament, Sex and Conscience" The Parliamentarian LXXVI No. 3, July 1995).

  The making of treaties raises the dual concerns of the Commonwealth binding the States in areas of State jurisdiction and the executive creating moral, political and economic obligations for the Parliament without reference to the Parliament. Similar issues have also arisen regarding national co-operative programmes requiring uniform legislation which are agreed to by Ministers and result in template legislation being introduced into Parliaments, leaving the Parliaments little practical capacity to amend the legislation. One such example is in the Competition Policy Reform (NSW) Act 1995, which enacts various provisions of the Commonwealth Trade Practices Act 1974. State Parliaments were threatened with significant losses of Commonwealth funding if they did not pass this legislation "as is".

  A Treaties Council was established in 1997 following agreement in 1996 by the Council of Australian Governments, a meeting of the Prime Minister, Premier and Chief Ministers. As is usual for such fora, this consultation mechanism is at the Ministerial level and any active involvement by Parliaments is subject to executive policy in the individual jurisdictions. A number of jurisdictions have referred the matter of international treaties to parliamentary committees for a one off or ongoing inquiry and report.

CO -OPERATION BETWEEN COMMITTEES

  In 1997, the Public Accounts Committees of the Federal and the Queensland Parliaments held a joint inquiry into Aboriginal Councils and Torres Strait island Councils: Review of financial accountability requirements. To my knowledge this is the first and only such joint inquiry. Committees from different Parliaments meet informally from time to time and occasionally hold formal meetings.

COMMITTEE INQUIRIES

  Parliamentary committees sometimes have occasion to seek information from other jurisdictions. Information is usually sought from the executive branch of government, most particularly the experience of expert bureaucrats. Such inquiries are normally seeking additional or comparative information on a matter clearly within the jurisdiction of the committee and witnesses are usually called by way of invitation (through the appropriate minister) rather than by summons. Constitutional or jurisdictional conflicts with any such inquiries which might arise are normally resolved by refusal to co-operate and are not pressed further.

Summoning MPs from other jurisdictions

  In 1993, the Senate of the Federal Parliament passed a resolution requesting that the New South Wales Legislative Assembly require the attendance of the Premier before one its Select Committee on the Functions, Powers and Operation of the Australian Loan Council. The House did not respond to the request, the Speaker advising the House (and the Senate) that the Assembly had no power to pass the requested resolution as it only had power to direct its members in regard to its own functions and authorities.

Committee inquiries into matters relevant to other jurisdictions

  Parliaments have held inquiries into matters that primarily were the responsibility of another jurisdiction. Within the Australia's federal structure, questions of relevance to the home jurisdiction can usually be overcome although jurisdictional issues preventing a full inquiry may arise. For example, in 1996 the Federal Senate formed a Select Committee on the Victoria Casino Inquiry after controversy over the Victorian Government's licensing of a certain casino operator. Although the terms of reference for the inquiry focused on Commonwealth legislation in relation to casino licensing, in substance the inquiry was into an administrative process of the Victorian Government. The Victorian Government refused to co-operate with the inquiry.

  In 1998, the Victorian Parliament commenced an inquiry into the Effects of Government-Funded National Broadcasting on Victoria. The Committee is examining the funding and administration of Commonwealth Government corporations under Commonwealth legislation to assess its affect on the economic and cultural life of the State.

MOTIONS PERTAINING TO OTHER JURISDICTIONS

  The New South Wales Legislative Assembly often passes motions commenting on the administration of the Federal Government. To date in the 51st NSW Parliament, around 30 motions condemning the Federal Government have been passed in the Legislative Assembly. Examples from the lead up to the recent election include:

"That this House condemns the Federal Governments' proposed GST for its devastating effects on families educating their children in Government and non-Government schools."

"That this House:

(1)  supports the Federal Health Minister, Dr Michael Wooldridge in his opposition to a GST being imposed on health services; and

(2)  "notes" the commitment of the New South Wales Government to providing comprehensive public health care in light of the Commonwealth Government's cuts in excess of $200 million."

NEW SOUTH WALES RULINGS REGARDING FEDERAL MATTERS

  I have attached rulings from Speakers of the Legislative Assembly pertaining to the discussion of Federal issues. It is notable that while the rulings presume some limitation, most particularly brevity, on the discussion of federal issues, nearly every ruling allowed discussion to continue.

NEW SOUTH WALES SPEAKERS' RULINGS ON DEBATING FEDERAL ISSUES

  A question on a Commonwealth Government referendum was allowed because it affected local government rates.

Ellis 1973 page 2247

  A question on a Commonwealth bill was allowed because it had not yet been enacted.

Cameron 1973-74 page 253

  Mr Speaker allowed a question (concerning the dismissal of the Prime Minister by the Governor-General and the likelihood of an election) on the grounds that "the affairs of the State and the Commonwealth are so inextricably interwoven at this time".

Cameron 1975-76 page 2446

  Speaker is under no obligation to preserve secrecy of Commonwealth Cabinet.

Ellis 1973 page 604

  Question asking Minister if he is aware of Federal Finance Minister's demands on Commonwealth Government business is in order.

Rozzoli 1993 22 April 1993 page 1494

  A question on the effect of statements by federal politicians allowed.

Ellis 1972-73 page 3282

  Question reflecting on the Federal Government allowed.

Ellis 1972-73 page 3410

  A question on a federal matter was allowed because the last part was in order.

Ellis 1973 page 1308

  A question inviting a political speech on Federal-State relations allowed.

Cameron 1975-76 page 2748

  A member could make brief references to any inadequacies in the Federal Government's policy but could not conduct a full-scale attack on federal matters.

Ellis 1967-68 page 1516

Quoting a Federal Act is allowable.

Ellis 1971-72 page 1443

  Chair ruled that as the Governor's speech referred to the current Federal election campaign and the effect of the balance of payments on the State, the Member's discussion of the Federal economy was in order.

Rozzoli 1993 25 February 1993 page 62-63

  Question seeking an opinion on a federal bill disallowed.

Cameron 1974-75 page 2798

  Question disallowed on the grounds that information in federal reports is readily available.

Cameron 1875-76 page 3340

  A cause-and-effect question ("Will removal of the federal subsidy add considerably to the cost of primary products") is normally allowed.

Cameron 1975-76 page 2680

  Question to Minister for Police regarding alleged crime by candidate in federal election held to be in order.

Murray 1996 24 April 1996 page 471

  Select committees of the Federal Parliament do not exercise judicial powers and the objects of their inquiries are not subject to the sub judice rule.

Ellis 1971 20 April 1971 page 49

  Speaker advised that (in relation to questions or urgency motions directed at Ministers responsible for agencies relating to the contamination of Wallis Lane oysters) he had a letter from the Attorney General advising of legal proceedings in the Federal Court and so far as debate might canvass the actions of any of the parties involved in the proceeding, it would breach the subjudice rule.

Murray 1995 16 April 1997 page 7630-7631

  Policies of the federal Liberal party, or any other party, are of no consequence when this House is dealing with private members' statements.

Rozzoli 1988-90 24 August 1988 page 508

  To a question whether he would issue a writ for a by-election: Mr Speaker saw difficulties in a by-election during a federal election campaign.

Ellis 1972-73 pages 1709, 2198

  Question asking Minister if he is aware of Federal Finance Minister's demands on Commonwealth Government business is in order.

Rozzoli 1993 22 April 1993 page 1494

  Ministers decide the way they reply to federal questions.

Ellis 1973 page 463

  It is in order for a member to respond to matters raised in the Minister's second reading speech. Member, however, cannot discourse at great length on federal policy matters, but as they bear upon State funds, passing reference is in order.

Rozzoli 1988-90 9 May 1989 page 7742

  House may express views on matters of federal concern and press for action.

Ellis 1971 4 May 1971 page 542