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Joint Standing Committee on the National Capital and External Territories - 14/09/2011 - Administration of the National Memorials Ordinance 1928

STEPHENS, Dr David Hector, Media and Political Liaison Officer, Lake War Memorials Forum

[13:20]

CHAIR: I now welcome the representative of the Lake War Memorials Forum. While the committee does not require you to give evidence under oath, I advise you these hearings are formal proceedings of parliament and warrant the same respect as proceedings of the respective Houses. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege. Dr Stephens, I would now like to invite you to make an opening statement to the committee. I might just check in with people what time they will need to leave. If you can contain your remarks to 10 minutes, then we should be able to have some questions.

Dr Stephens : Madam Chair, I had not intended to give an opening statement. If that is the case I will not, except for two opening corrections. In paragraph 48, the last line, if you would not mind deleting the final 'not' in the last line so that it reads 'may not have been legally made'. There are too many nots.

On page 59, in the middle of the attachments, the first line of the third paragraph should be 'Although the 1953 amendments', not the '1989 amendments'. That is all I have to say.

CHAIR: Can I ask members of the committee who have questions?

Senator CROSSIN: I want to ask you the same question I asked the previous witnesses; that is, whether you think the ordinance still needs to stand or whether it is time to totally revise and review the structure.

Dr Stephens : It is a question I had not thought of, but I think the thrust of our submission is that the ordinance is faulty. Some of the problems have arisen because of the faults in the ordinance and the fact that organisations and individuals essentially have been able to drive a truck through it in terms of the existing ordinance. Therefore, I would say you should continue with it, make sure it is done properly. For example, make sure that it is protected by a form of the Acts Interpretation Act. The Attorney-General's Department seems to think it has not been protected by that in the past, to the extent that it is arguable that all its decisions since 1953 have not been properly made. Yes, certainly continue with it, get it right and make it work.

Senator CROSSIN: Can you take me through that a bit more? Do you think at this moment it is inconsistent with the Acts Interpretation Act?

Dr Stephens : Yes. We, ourselves, did not pick up this particularly until last week, when we looked at the paper that was done in A-G's. As I understand it, there is a need to protect the operations of bodies so that the operations do not become invalid simply because of a vacancy in the membership. There is a provision in the Acts Interpretation Act which says acts of bodies are not voided because there are vacancies in their membership. That would have protected the Canberra National Memorials Committee against the fact that it did not have ACT members on it, if the Acts Interpretation Act had applied. But it turns out, if you look at the A-G's submission, by two obscure ordinances—one called the ACT Reserved Laws (Interpretation) Ordinance 1989 ACT and the other one called the Interpretation Ordinance 1967, that is the equivalent of the Acts Interpretation Act—that actually applies to the National Memorials Ordinance, but it does not contain that protective provision that is in the Acts Interpretation Act. Therefore, it is arguable, and A-G's clearly think it is an issue, that the fact that there have not been ACT reps on this committee since 1953 means that its decisions since then have been invalid. Then the question arises: what do you do about it?

Senator CROSSIN: Correct. I also want to ask you another question. On page 76 you have given us an outline of their last couple of meetings. Let us be really honest about this: at best it meets twice a year; in 2009 it did not meet at all.

Dr Stephens : Yes.

Senator CROSSIN: I did ask the previous witnesses, and they made a comment that they thought it was important that the Prime Minister, the Leader of the Opposition, the leaders in the Senate be on this committee. Do not we need to be brutally honest with ourselves and say those people are never going to have the time, the priority, to sit on this committee? Is it not in its very nature, a 17-minute meeting, for example, signalling to everybody that even the structure of the committee needs serious reform?

Dr Stephens : We ended up putting three options in our submission. I do not particularly have a preference—actually I probably do have a preference between the three of them. This starts at about paragraph 19 and continues.

Senator CROSSIN: Could you tell us which page that is?

Dr Stephens : It starts at the bottom of my page 16, which is paragraph 19.

Senator CROSSIN: Page 45 of our pages.

Dr Stephens : The paragraph numbers are perhaps the easiest way of following it. The important thing is the principles. Under a heading 'Principles for CNMC Membership', paragraph 19, the principles there are:. 'Representativeness, demonstrated interest, expertise, time and a quorum arrangement that prevents capture by a single constituency'. Following on from that, there are three options. None of them include the prime minister or the leader of the opposition as members. To take possibly the best option to illustrate it, option C, which we call the Augmented Canberra National Memorials Committee, refers to only six or seven members; responsible minister is chair, with the secretary of the responsible department to be a proxy but not to chair; the chair of this committee is the deputy chair and the acting chair in the absence of the minister; another member of the JSCNCET elected by its members; two residents of the ACT—this is paragraph 29—one nominated by the minister, one by this committee; and up to two temporary members with the appropriate expertise. We think it is unrealistic to have committees of nine, which is what the current one has. We also think it is unrealistic to have committees that require the prime minister to attend. Also, if he or she does not attend, it could lead to subterfuge like the thing that is reported in footnote 4 of the submission, where there was a pretence made that the Prime Minister had attended an important meeting—and of course the Prime Minister was not there. Those sorts of things do not happen if you recognise that there are issues with time available and you concentrate on people who have got the time for the committee and the interest in the committee's operations. Particularly options A and C recognise that.

Senator CROSSIN: You would remove the NCA?

Dr Stephens : Yes.

Senator CROSSIN: Use them in an advisory role?

Dr Stephens : Yes.

Senator CROSSIN: Put the secretariat function for this committee inside the minister's department?

Dr Stephens : In the department. I think there are arguments in there about the conflicts of interest that the NCA has. Certainly if you were getting into detail of consultation with the community you would obviously use the NCA. We have had brief discussions with the NCA about how that might work. You would not have them as the gate keepers and the potential, with respect to Senator Parry, manipulators of the business of the committee.

CHAIR: Senator Humphries?

Senator HUMPHRIES: Thanks, Chair. I am taking up Senator Crossin's point about ministers in practice not getting to those meetings or only getting to them very briefly. I suppose the way I see the ordinance was meant to operate, and the way it probably does operate, is that there is an in-principle decision or concept put before the government in some form and the government of the day will consider whether they like this idea for a particular memorial and there will be some cross-party conferral about it, and the role of the Canberra National Memorials Committee probably ends up being more of a kind of a formality after a political decision has been made that a particular memorial goes ahead. In other words, it is seen very much as an executive decision but exercised on a strictly bipartisan basis. That is why the opposition leader is on the committee as well. It was conceived originally to be then streamlined into execution from that level.

At the other end of the spectrum we have what appears to be the model used in the United States where a memorial has to have a sponsor in Congress and even legislation is required to provide for that particular memorial to be built. They are both at quite different ends of the spectrum. Where do you think, ideally, our memorial-making process ought to be?

Dr Stephens : Not as far as the Congress version, the Congress sponsoring it, is concerned. Ideally, looking at how it would work at the moment, this committee would, as it did in the case of the lakeside memorials, grant the site reservation but it would be a provisional granting of the site subject to the characteristics of the memorial being referred back to the Canberra National Memorials Committee. That certainly did not happen in this case. Essentially the die was cast in July 2005 following a meeting between the chairman and the deputy chairman of the Memorials Development Committee and the CEO of the National Capital Authority. Sixteen days later the National Capital Authority made the decision, and it basically did not come to public light until 2008, after two meetings—and you can argue whether they were invalid or unlawful meetings of the Canberra National Memorials Committee—had been held. I am not particularly wedded to any particular model of doing it, as long as the sorts of principles that are in here about who should be members of it and how the decision should be made—transparently, accountably, things on websites, possibilities for public submissions—are there. As to the actual number of steps, I am not particularly worried about the details of those. But certainly it should not be possible for someone to say, 'Here are some good sites on the Rond Terraces; let us think about what we do with those sites.'

We do not know what happened in that 18 months or so, because the papers either never existed or they are no longer there. Then we go back and we get the Canberra National Memorials Committee to confirm the NCA's decision about the site and then, four months later, we go back and do a one pager on commemorative purpose and design and intent. The big clue in there is that the memorials are to be larger than those on Anzac Parade. That, to us, was open slather for people within the NCA and the Memorials Development Committee to produce the things that are there, as I said, virtually without public consultation at any stage.

Senator HUMPHRIES: Does that then mean the process should be capped by potentially a vote in the parliament on a disallowable instrument or a positive decision by way of legislation to approve a memorial?

Dr Stephens : At the moment the determination that the minister of the day makes, after he or she has received the approval from the Canberra National Memorials Committee as a determination under the act, is not a disallowable instrument. That should be a disallowable instrument in the same way as the nomenclature ones under the ordinance are. But yes, there would be a role for the parliament in extreme circumstances, but you would normally expect that the final decision would be the determination of the minister on the basis of what came to him from the committee; the committee having looked at the detailed design of the memorial.

Senator HUMPHRIES: Thank you.

CHAIR: Dr Leigh?

Dr LEIGH: Thank you very much, Chair. Dr Stephens, thank you very much for the time that you put into preparing your submission. We may not all agree with everything in here, but I am acutely aware that your group was formed for a purpose quite different from that which we are looking into. You have spent a lot of time on your submission. We thank you for that.

Dr Stephens : We would like to get it right as well as not building the memorials.

Dr LEIGH: Absolutely. One of the characteristics of the CNMC has been its bipartisan nature. I noticed that in all of your proposals all of the parliamentarians are from the governing party of the day. You have the minister, the chair of this committee and the person elected by majority from this committee. One would expect that all of those people would therefore come from the governing party. Is that deliberate or accidental?

Dr Stephens : No. My feeling, perhaps naively, was that, given that the chair of this committee would be from the governing party, the second person from this committee would be not from the governing party. That is up to the vote on this committee but certainly it was not—

CHAIR: Chair and deputy Chair, perhaps?

Dr Stephens : It was not designed to be all one sided. It was meant to preserve some of that bipartisanship.

Dr LEIGH: As the chair says, with the chair and the deputy chair, you would be more likely to achieve that.

Dr Stephens : That would be one way, yes.

Dr LEIGH: Than the Chair and the person that wins the vote at the assembly.

Dr Stephens : Yes.

Dr LEIGH: In terms of the way in which funds are raised for memorials, do you have any particular views on some of the issues that have arisen here, corporate sponsorship in particular and fundraising by allowing people to have their names on memorials?

Dr Stephens : Towards the end of the submission—it was not particularly addressed in the terms of reference—we do have some things in there about how to deal with privately funded proposals. I think the issue there is that it should not be possible for a private organisation to essentially have dibs on a piece of national land for ever—effectively it is forever, and I will come back to that—with no kind of discipline put on them as to how they are going to raise the money and no kind of discipline on how much it is going to cost.

If you look at the papers, the original estimate of costs was $6 million. Now, according to the NCA, it could be as much as $25 million. Obviously that blow-out in cost is going to make it even harder to raise the money than it would have been if it was $6 million. But the Canberra National Memorials Committee in 2010, knowing that the Memorials Development Committee were having trouble raising money, gave them three more years and said, 'If that is not enough, we will give you more after that.' That, to me, is a ludicrous use of power.

CHAIR: Ms Brodtmann?

Ms BRODTMANN: As you heard from the society beforehand, they were talking quite a bit about their strong views on the role of the NCA. I was wondering whether your group did and how it relates to the committee?

Dr Stephens : I think they are similar views. I do not think the NCA's role in the memorials process was particularly praiseworthy. That history is back a bit now, and perhaps it is a different sort of NCA, I believe. Certainly it needs a role, assuming after the Hawke report the NCA still is in existence and still has much the same role. It needs to have a role in this because it has expertise. It has processes by which it can consult with the public. That should be made use of. But as we say in the submission, it has clear conflicts of interest. It is unethical that it should be the organisation that puts the thing up; that, as happened in the last lake memorials case, the CEO of the NCA should be one of the three people that were on the committee making clear decisions. There is a lot of power in filtering the papers to a committee and, in our view, that is how the word ‘manipulation’—I would not quite use that word—could arise. But CNMC in the past has been an instrument of the NCA when it was meant to be a bipartisan way of making decisions about proposals being put by the executive.

CHAIR: Dr Stephens, I do not know whether you are aware of deliberative democracy processes in community planning, but to my mind a lot of the discussion today still puts the decision making at a very pointy committee end rather than merely at the committee ticking off on what already has a really broad community mandate where a lot of the issues are already resolved and are really broadly mandated. Do you have any views about the community consultation aspects where you can take a group of people and inform them about heritage, have the proponents put their ideas up about why this is an important civic thing to be memorialised and then engage with the views of residents but also tap into what clearly are national views of Australians more broadly?

Dr Stephens : As I said before, I am not too concerned about the steps in the process, but at a number of points in the submission we say 'opportunity for community consultation at every step in the process'. That, presumably, would mean that as soon as the idea comes up, in this case by the Memorials Development Committee, if it is their idea, then it comes up. It is exposed. The NCA has a roundtable about it or a community consultation. There might be surveys, there might be whatever. It might slow the process down.

CHAIR: There is a difference, though, between consulting the community and, in effect, giving the community the inputs and asking them to make the decision and then working out whether, as a committee and a government, et cetera, you are actually prepared to endorse that decision or not? Does that make sense to you?

Dr Stephens : I suppose we are constrained a little by the terms of reference. Certainly we would welcome any means of broadening out the process. Somewhere in the submission we say, perhaps in attachment A where we have our list of things that we are in favour of, that one of those things is paying more attention to non-bricks and mortar forms of memorialisation. That is the sort of thing that might well come from a community. Looking at the community views that have been expressed on our website, there are an awful lot that say, 'We should be over bricks and mortar now, after all these years; let us do something else.'

CHAIR: And that some of those memorials might in effect be a portal to digital memorials, et cetera.

Dr Stephens : Yes. My daughter pointed out to me that there were perhaps 80,000 East Timorese killed in World War II by the Japanese for helping Australian soldiers. We have done nothing much in terms of memorialising that. That might be a good way to have a World War II memorial along those lines.

CHAIR: I know that Senator Parry has a question as well.

Senator PARRY: Thank you. Just going back to your recommendation in paragraph 29, option C is for two residents of the ACT, one nominated by the minister, one nominated by this committee. Have you considered maybe popular election rather than the minister and the committee appointing? Would that then give you the input that you would like on the committee rather than, again, political appointments?

Dr Stephens : It is possible. I know in option B we have said 'residents nominated by community organisations and then appointed by the minister'; so there would be a community input there. We would not be too wedded to the things in brackets there, but certainly the idea of representativeness and not having the possibility of the committee reflecting the views simply of the executive is the main issue. If people felt that 'the residents of the ACT by popular election' was an option, by all means consider it.

Senator PARRY: That would have the expense of a ballot and how you would set that up. That is just to get a concept idea.

Dr Stephens : Yes. You could argue a certain point. These things are important but it is not—

Senator PARRY: Time, expense and effort might not warrant it.

Dr Stephens : Yes. That is the sort of point I was making.

Senator PARRY: The dot point under that, the two temporary members, why not just make them permanent with expertise, because largely it is going to be dealing with memorials?

Dr Stephens : Yes. We felt there that if, for example, you picked historian A who was a heritage person and historian B who was a specialist in immigration history, and if something came up that was not really in that area, you would be a bit constrained. It might make more sense to have—

Senator PARRY: You could bring in expert advice. This would then give continuity. One of your arguments has been that the meetings have been conducted by smaller groups and there was not necessarily continuity. This would then give you better continuity of decision making.

Dr Stephens : It is certainly a possibility. Partly the idea of these options was to try to present the extremes. Option B is quite a small committee, but it is experts only. Option C is a bit of a mixture.

CHAIR: Surely there should be an obligation to consult with historians who have relevant expertise for the purpose of—

Dr Stephens : Yes, definitely, whether you actually have them on the committee or you have them accessible and you can get consultancies and submissions.

CHAIR: So, in a sense, it might be regulating to guarantee that that advice has been sought and received.

Dr Stephens : Yes. The other thing we have not mentioned today is that we propose that there be a strategy for national memorials, partly based on the existing guidelines of the NCA that they did not follow. Put that in the ordinance and require that there be reporting to say, 'We have gone through and ticked the boxes against the elements of the strategy.' One of them, obviously, would be 'considered relevant historical aspects or cultural aspects'.

Senator PARRY: Could I just finish off on that point? You would have no objection to making those experts resident within the committee and then calling in expert advice as and when needed?

Dr Stephens : No. As I might have said before, the important things are the principles at paragraph 19. You can mix and match the committee, perhaps taking note of parameters like it cannot be too big and you cannot expect the PM to turn up, but principles are important rather than detail.

Senator PARRY: Finally, just because it is on the record, paragraph 93 is a fairly blunt statement where you have indicated:

The despoiling of our national capital by officials, appointees (and politicians, when they turn up) making unsound and perfunctory decisions to progress the misconceived agenda of a shadowy interest group.

Who is the shadowy interest group?

Dr Stephens : In this case we regard that as the Memorials Development Committee.

Senator PARRY: Apart from your issue—and I know you have a bias for lakeside memorials and the history you have had there—do you feel as though the committee itself, the CNMC, if it was restructured along the lines of the principles of paragraph 19 would eliminate that problem for you?

Dr Stephens : It would be less likely to happen. Exposure and sunlight into this process is going to make a difference. I know there is a time constraint. What we have lost sight of is that public office is a public trust and that applies whether the office holder is elected or appointed. It is not a licence to indulge private architectural fantasies or to build legacies or to propagate idiosyncrasies. It is not a licence to deliver for one's mates. There is too much in this process of delivering for one's mates. That is what annoys many of us, too much of this backdoor process of delivering something for one's mates and something that may well be a legacy for me as an office holder.

Senator PARRY: Thanks, Chair.

CHAIR: Are there any further questions, committee members? No. Thank you very much, Dr Stephens for coming to share your evidence with us today.

Dr Stephens : Thank you.

CHAIR: Thank you to all our witnesses and indeed members of the public and the media who have come to show their own interest in our proceedings today.

Resolved (on motion by Senator Crossin):

That this committee authorises publication, including publication on the parliamentary database, of the transcript of evidence given before it at public hearing today.

CHAIR: Thank you, everyone, for your interest.

Committee adjourned at 1.47 pm