Ch 10: Alternative Systems of Governance

Question 1

Describe the historical milestones in development of checks and balances on public power

Answer 1

relationship between government and citizens is an unequal one hence constitutionalism & democracy attempt to realign powers back to the people

• creation of legal rights and the rule of law
• political constitutions and the separation of powers
• development of representative democracy and free and fair elections
• Westminster conventions of executive accountability

Question 2

What are current checks and balances on public power?

Answer 2

• judicial review: citizens could seek it to check legality of public decisions that affected them
• Attorney Generals: senior members of political executive expected to preserve integrity of the legal system & ensure government action respected the rule of law
• Auditor General: public service position created to improve financial accountability of govt. departments

Occasionally, concerns about biased/ineffective admin. or corruption by public official required stronger action, government would then establish inquiries or judicial commissions to investigate and recommend actions to create better processes or to right injustices

Question 3

What are the shortcomings of current checks and balances processes on public power?

Answer 3

• criticised as providing insufficient protection to citizens – judicial review can only expose and correct unlawful public decision-making processes, courts can’t re-examine the merits of an administrative decision and other protections rely on democratic conventions and political will
• concerns over increasingly complex processes of modern democracies could not be effectively controlled through British Westminster style or US approach to AU accountability

Question 4

What are recent innovations in government processes?

Answer 4

1. Dispute Resolution Tribunals: wide-ranging responsibility to review the merits of administrative decisions - e.g. CW Administrative Appeals tribunal & WA State Admin. Tribunal
2. Advocacy Agencies: these bodies can “speak up” for individuals & groups particularly for the powerless - e.g. WA: Roles of the Office of the Public Advocate & Commission for Children & Youth
3. Complaints Bodies: bodies that hear complained concerning treatment of people have received from public agencies like govt. departments

• e.g. Ombudsman: can investigate complaints and recommend action to resolve complaint/ improve processes to prevent future maladministration - e.g. WA Commissioner for Pub. Service Standards: Creates mechanisms to improve quality of pub. governance so complains are less likely to arise
  1. Investigative Agencies: govt. may set up RC to examine past executive practices and provide policy advice/ investigate claims of serious maladministration or corruption - Recent times: Permanent anti-corruption bodies have been suggested (Fed) or set up (several states) - have been in response to very strong community concerns about corruption - e.g. Crime & Corruption Comm. (CCC) WA, Independent Commission Against Corruption (ICAC) NSW - Effectively standing RC with very extensive powers of investigation - responsibilities: investigation corruption within government - e.g. elected rep., pub servants or police & also combating organised crime & enforcing anti-corruption standards in pub. sector

Question 5

What is the integrity arm of government and what are advantages/criticisms?

Answer 5

integrity arm of government: oversees new requirements of productivity, transparency and accountability

Advantages of integrity agencies

• apparently greatly increases the oversight of the public sector
• improves the reasonableness and fairness of decisions that directly affect citizens
• reduce corruption via better processes of detection of wrongful behaviour and improved investigation and sanctions

Criticism of the new governance approaches

• complex and partial: created complex demands on public sector and doesn’t set standards for private sector activities - multiple codes of accountability should be replaced/reinforced via a general charter of rights that applies to all citizens & to all pub/private service providers
• dangers in the power of some integrity bodies: directed at powerful agencies e.g. CCC and similar bodies could threaten civil liberties in several ways:
  
  • Parliament has granted them with excessive powers that undermine basic freedoms, including electronic surveillance as a form of evidence
  • compulsory appearance to hearings means people are “smeared” by allegations that may have no basis leading to damaged reputations and could be financially crippled by costs of defending themselves - chance that investigation staff may be captured by corrupted interests, adding to corruption
  • investigation staff may be captured by corrupt interests and add to corruption, not reduce it i.e. 2009 NSW ICAC Senior Investigation was using position to take part in drug importation, not to stop it

Question 6

What is the comparative quality of governance in Australia?

Answer 6

• quality of political participation
• efficiency and accountability of government administration
• level of political stability
• effectiveness of the rule of law
• level of public corruption

International governance rankings

• AU scores similar to other Westminster democracies e.g. Canada, NZ, UK
• “Good performance, ranked near top of the class, but could do better”
• ranked better than the US but best scores are Scandinavian democracies e.g. Denmark & Sweden

Question 7

What is the role of inquiries?

Answer 7

• public decision makers are constantly faced with issues that are complex and require more in-depth examination than is normally possible using resource of govt. bureaucracy
• inquiries seek either to gather information for making better policy or to examine the actions of others see if there has been a breach of law/proper standards - many inquiries are both advisory and investigative

Question 8

What are the different approaches to official inquiry?

Answer 8

Administrative inquiries

• internal inquiries set up by executive government: senior public servants may chair them but often an eminent person from outside government is applied to conduct the inquiry
• usually gather information privately and report to the prime minister/premier who then decides how much of the report will be published. They enable government to maintain control over politically sensitive matters
• e.g. Howard Government: “children over board” affair 2001: PM response was to convene a close internal inquiry by the People Smuggling Taskforce (a public service agency part of Department of PM and cabinet)
• 2004: Flood Inquiry into Australian Intelligence Agencies and 2006 Palmer Inquiry into treatment of an AU Citizen, Cornelia Rau (wrongfully detained under immigration law) - Both were held by eminent people

Parliamentary inquiries

• Parliamentary Committee initiate legislative inquiries, more likely to occur when Government doesn’t control committee proceedings and has regularly been the case in the Australian senate
• Senate committees have powers of the senate chamber and can require evidence from witnesses. Submissions are covered by Parliamentary Privilege. Public servants appearing before a senate committee can’t be required to comment on government policy and government ministers can’t be compelled to give evidence – as a result, investigations into government actions conducted by legislative committee can’t reach conclusions with certainty
• e.g. Senate’s Select Committee for an inquiry into a certain maritime incident which was the 2002 investigation for the “children overboard” affair

Judicial inquiry/Royal Commission – taken out of course syllabus

Question 9

What is the role of the ombudsman and what is their scope of activity in WA?

Answer 9

ombudsman: an official who is appointed by Parliament to investigate complaints against Government Administration and to report back to the Parliament

• they ensure that public authorities are fair, accountable and responsive in their administration of legislation
• can hear and investigate complaints concerning the treatment of citizens by Government bodies and can also report on the internal processes of public bodies and recommend reforms
• WA: OB can investigate complaints concerning state government agencies, statutory authorities, local government and public universities
• most concern operation of delegated legislation

Scope of activity (WA)

• Prisons and Juvenile Justice Centres
• Local Government
• Police
• Child Protection
• Housing and Works
• Planning and Infrastructure
• Education and Training

Question 10

What are the powers of the ombudsman and potential impacts?

Answer 10

• do not have the power to direct another Government Agency
• recommendations made are published into an annual report to Parliament and a report of noncooperation of an agency is likely to be embarrassing for the agency and for Government e.g. CW Ombudsman report on the detention of persons under Migration Act have resulted in releasing of many persons from custody

Possible impacts

• limited real powers of ombudsman makes them as much a Mediator as an Adjudicator
• e.g. CW ombudsman lists kinds of resolution it can seek from agencies such as giving clearer reasons to decision, reducing delay in most decisions/postponing action in individual cases - reconsideration of a complaint’s case may lead to the changing of a decision, acknowledgement and apology for an error, waving a debt/charge or even financial compensation

Question 11

Describe oppostion to the role of Ombudsman

Answer 11

• legislation to impose the create office was often opposed due to costs involved
• seen as a form of duplication of other services and interfering with their role in representing electors
• also resisted by some powerful statutory authorities e.g. Hydro Electricity Comm.
• complaints against police has become a contentious topic as well: Westminster convention: Police have daily independence over their operational decisions however police have significant power over citizens and thus possible misconduct/corruption. Ombudsman doesn’t really have much influence to insist police co-operation in a serious inquiry, CW/State levels rely on anti-corruption bodies/supervisory bodies (currently CCC in WA)
• issues over their appointment: e.g. senior ex-politician in TAS appointed to the role of Ombudsman in the early 1990s
• Canada: Ombudsman ensure delegated legislation conforms to the Charter of Rights in Canadian Constitution
• TAS: Ombudsman made public some cabinet documents under Freedom of Info. (FOI) Laws - Both can be considered quite contentious. In WA Office of the Information Commissioner supervises FOI Laws, also a separate Office of the Inspector of Custodial Services that inspects/reports on prisons however, Ombudsman retains role in this area

Question 12

What is corruption and what is its significance?

Answer 12

corruption: when a staff member without lawful authority/reasonable excuse misuses their position for direct/indirect personal gain or to cause detriment, whether pecuniary or otherwise to any person. Corruption not only damages the lives of individuals affected but also undermines public confidence in the system of government

Question 13

What has been public concern and government response to corruption?

Answer 13

Examples of Corruption Crises

• Queensland, Fitzgerald Royal Commission: extensive public corruption and led to jailing of senior police officers/political leaders and senior judge dismissal
• WA Inc. Inquiry: Jailing of 3 ex premiers/deputy premiers and several Govt. Officials
• NSW: Separate corruption issues over several years resulted in terms of imprisonment for a Chief Magistrate, Govt. ministers and a senior police officer

Government response

• as a result, all these states have powerful anti-corruption bodies: Crime and Misconduct Commission (CMC) QLD, Crime and Corruption Commission (CCC) WA and Independent Commission Against Corruption (ICAC) NSW. In SA, VIC, CW: anti-corruption agencies that deal with complaints against the police. The Commonwealth set up CW Commission for Law Enforcement Integrity (2002): poorly funded and only have responsibility for issues concerning AFP and Australian Crime Commission
• 1980’s Office of the Inspector General of Intelligence and Security - an agency set up to supervise the performance of Australia’s intelligence agencies
• recent times: A body with much broader powers have been pushed by Greens and independents. Greens sought the establishment of a more comprehensive CW Anti-Corruption Commission, modelled similar to the states. So far there has been no party support

Question 14

Describe anti-corruption measures

Answer 14

• commentators have argued that ensuring public/private sector integrity is best achieved via a “bird’s nest” approach taking many different actions including:
  
  • codes of conduct
  • agencies that set standards
  • complaints bodies
  • investigative bodies
  • court judgments and sanctions
• anti-corruption measures will not be successful unless there’s a culture of integrity and a basis of reasonable trust within institutions
• significant limitations in the powers/roles of integrity agencies including CCC (WA).
  
  • limited via the separation of powers as various integrity organisations are all statutory bodies, given ‘independent powers” via the legislature but these powers can be modified by an amendment to the relevant statute. Parliament can also abolish any agency if it decides it isn’t necessary anymore
  • no judicial powers and although they can investigate issues of accountability and recommend action, only a court can exercise judicial power The Crime and Corruption Commission of Western Australia

Question 15

What are the functions of the CCC?

Answer 15

CCC Act (2003): states main purposes are to combat and reduce organised crime and to improve the integrity of the public sector, annual budget of around $25 million

1. Misconduct Function: assessment of notifications and allegations received via public sector agencies and public relating to public sector misconduct; monitoring and review of misconduct investigations undertaken by public sector agencies and investigation of serious misconduct via investigations unit
2. Prevention and Education Function: Achieved through co-op and consultation between commonwealth, public sector, local government agencies and oversight bodies. Focus: Provide education programs to raise awareness amongst public sector agencies about their responsibility for reporting suspected crime and misconduct, assisting them with ways to deal and advising them on building corruption resistance
3. Organised Crime Function: Doesn’t investigate but has “exceptional powers” pursuant to s. 46 of act that the Comm. of Police can seek -> makes it a “gatekeeper” in these requests from the police facilitating use of these powers for this function

Question 16

What are the powers of the investigative unit of the CCC?

Answer 16

• can demand documents & search premises using a Magistrate’s Warrant –
• can intercept & record telephone conversations & use other surveillance devices under a warrant via the Federal court
• investigators can work undercover using assumed identities & run controlled operations
• holds public hearings & can compel witnesses to attend
• public service bodies, including police service are required by law to report suspected misconduct to the Commission

Question 17

What are the advantages and criticisms of the CCC?

Answer 17

ADVANTAGES

• has uncovered many undemocratic and improper practises in WA public sector e.g. Busselton and Cockburn Councils undeclared donations to local Govt. candidates by property developers
• revealed close and arguably improper relationship between lobbyists and both parliamentarians and public servants
• investigations with police have underlined weaknesses of police internal investigation processes and denial of citizen rights in police operation
• the education function of CCC has raised standards of public integrity and created greater transparency

CRITICISMS

• concerns over surveillance and entrapment - could unfairly damage people professionally, psychologically and financially
• restrictions on civil liberties: Commonwealth can hold closed interrogations where witnesses aren’t allowed assistance by a lawyer and can reveal even that they were interviewed. Journalists can be forced to reveal sources or risk penalties up to $60,000 or 3 years’ imprisonment
• limited success of prosecutions: in the first 5 years of operation the CCC cost $75 million for taxpayers. Only 52 charges laid against individual and 41 convictions achieved. In many CCC cases, decided not to recommend legal action or to abandon prosecution - suggesting better ways to deal w/corruption

Issues like the undemocratic impact of lobbying activities could be greatly lessened by better government policies and procedures

Question 18

What is judicial review, merit review and administrative law?

Answer 18

definition: a term used to refer to the appeal process. Applies to the review of government administrative decisions (actions of executive bodies under powers provided to them by statutes) by the courts. Ensures the accountability of public officials for the legality of their actions.

administrative law: concerns decision-making by executive government bodies. It is the body of law dealing with the rules regarding the hearings of government administrative agencies i.e. internal appeals tribunal. All administrative law must operate within the bounds of natural justice. One aspect of administrative law is the process of judicial review

merit review: a re-examination of the facts of a case and reasons for a decision (usually an administrative decision) to decide if the decision was right and fair

Question 19

What are the possible objections to administrative decisions?

Answer 19

1. Ultra Vires: a decision may be overturned if the decision made is clearly not authorised by the statute involved - ie. judge has acted outside their legal powers. It is a general principle that parliament can’t give any agency administrative powers that are clearly not required by the purpose of the legislation
2. Abuse of Power: administrative decisions must be designed to achieve the purpose of a statute and not made for any other purpose
3. Procedural Fairness: natural law requires that decisions are made in a fair manner that includes such things as the right of an individual to put their own case, for relevant evidence to be considered & for the right to be an appeal

Question 20

Describe the new emphasis on judicial review

Answer 20

• Judicial Act 1903 39B(1): further broadened the powers in relation to writs, essentially est. the HCA to carry out the functions as noted by the constitution
• Administrative Decisions (Judicial Review) Act 1977: relevant to Federal courts and essentially principles of judicial review in a more straight forward defined manner, that may have been beneficial but did narrow the power of the courts due to issues of litigation
• before the 1970s, there was only limited emphasis on access to judicial review which has changed since then
• s.75 (v): main foundation for High Courts powers in judicial review, referred to more often in recent decisions. Allows courts to determine legality of actions of public official on the basis of mandamus (right compelling the exercise of a public power in accordance with a duty and within their powers)
• High Court has ruled to overturn CW statutes that contain privative clauses that remove right of appeal (e.g. from decisions of tribunal) - Plaintiff S157: HC ruled that s.75 of constitution prevents CW laws from removing the right of appeal

Question 21

Describe features and actions of tribunals

Answer 21

• over the past decades, a number of tribunals have been created that have significant power to review administrative decisions
• tribunals are able to formalise a citizen’s right of appeal against an executive decision and to ensure complaints are treated in a consistent and just manner
• establishment of new tribunals is a part of new administrative law, statutory requirement that administrator give reasons for decisions they make thus making it more possible for tribunals to review merits of a decision by re-examining the reasoning behind it
• can apply remedies that are similar to those used under civil law. They can also mediate disputes, allowing parties to reach an agreed solution to their disagreement. Tribunal decisions have created a body of precedent that has brought greater consistency to administrative decision-making

Question 22

Describe merits review and the different forms of merit review

Answer 22

• in a merits review, the whole decision is made on the facts - differs from a judicial review where only the legality of the decision making process is considered
• judicial review usually consists only of a review of the procedures - distinction between “correct/preferable” in relation to a decision is important.
  
  • “correct”: made in a non-discretionary matter where only one decision is possible on either the facts or the law
  • “preferable”: requires exercise of discretion/selection between possible outcomes
• merits review is often initially conducted “in-house” by a more senior agency official - (internal) or by a range of bodies est. to provide “external”

forms of merits review

• Internal Review: occurs where a decision made by an officer of an agency is reviewed by another person in the agency. Many have formal systems for internal review and may be provided for in legislation however a number of agencies have a more ad hoc system - simply available through administrative processes in the agency (no secure right of appeal). Internal review can be sought by requesting reconsideration of a decision by following the set procedures of more formal mechanisms
• External Review: involved the fresh consideration of a primary decision by an external body - a tribunal, regulator, reviewing a private body’s decision under statute power, or an independent officer from another agency
  
  • AAT (Administrative Appeals Tribunal) - power greatly expanded by AATA (1975) - Is the main merits review tribunal for all CW administrative decisions unless specific policy considerations support review conducted by an alternative body. It reviews a wide range of administrative decisions made by Australian government ministers, departments, agencies, authorities and other tribunals - e.g. aviation, bankruptcy, CW employee compensation, corporations, customs excise
  • other examples of external bodies: Native Title Tribunal and Refugee Tribunal (CW) and the State Administrative Tribunal (SAT) for WA – these bodies have final say over the merits of an administrative decision

Question 23

What is the difference between state and federal tribunals?

Answer 23

• AAT and Federal tribunals are subject to appeal to the federal courts (inc. HC) but only on questions of law not on merits of a case - if courts find error, the case is sent back to AAT to be reheard
• State tribunals aren’t affected in same way by constitutional law and can reach final decisions

Question 24

What are the advantages of tribunals?

Answer 24

• centralise adjudication over a wide range of statute - including efficiency, transparency and consistency of review process
• consider administrative matters in a “judicial manner” – they have the advantages of the courts in using expertise of legally trained officer who are seen to be independent and unbiased
• operate less formally than a court, tribunal rules are less intimidating, evidence doesn’t need to be sworn, a minimum necessary set of rules of evidence are applied
• lower costs and reduces amount of time required to reach a decision

Question 25

What are examples of judicial and merits review?

Answer 25

• Li Case (2013):* (Merits Review) - refusal of skilled overseas student visa due to employment history wasn’t “genuine”. Appeals for a new skills assessment to the Migration review tribunal - Department of immigration and citizenship refused 2nd application and also refused her request to adjourn the new app. until she could complete her new skills assessment - appealed to tribunal: confirmed the department for immigration and citizenships decision - Li appealed to Federal Court: ruled Tribunal decisions to be unreasonable and exceeding their jurisdiction
• Chaplaincy (2012 and 2014)* (Judicial Review) essentially appealed to the HC in relation to the chaplaincy program at a school and private contracts (After the 2012 case) HC ruled in favour of Williams and said that the executive didn’t have the statutory power to just sign, federal governments couldn’t dictate where state money is spent specifically (unless through tied grants which this contact
• Malaysia Solution Case (2011)* (JR) asylum seekers legislation which was struck down by the HCA - on basis that AUS couldn’t enter a “swap agreement” for AS with Malaysia because it is not a signatory to Refugee Convention (1951) or its protocol - thus, not legally bound under international law or its own domestic laws to provide sufficient protection and defined procedures for AS.