Chapter Twelve: Accountability in the Government

Question 1

Public Service

Answer 1

The people responsible for implementing the policy of the government through Commonwealth departments and agencies all employed under the 1999 Public Service Act. They include officers in federal education, health, immigration and managerial framework for these departments.

Question 2

Public Sector

Answer 2

The people who still deliver a service but are not directly employed by the Commonwealth under the 1999 Public Service Act. They are people who are employed under companies outsourced by the government or are employed by the government but don’t provide a public service, such as employees which operate the security at Nauru, the Australian Federal Police and scientists stationed at the CSIRO.

Question 3

Formal Executive

Answer 3

The constitutional executive which is the Queen and acting on her behalf the Governor General.

Question 4

Real Executive

Answer 4

The executive which holds real power in the Australian political system which is the Prime Minister and Cabinet.

Question 5

Administrative Executive

Answer 5

The members of the government who implement government policy directly who are known as the public service.

Question 6

Individual Ministerial Responsibility

Answer 6

A Westminster convention which outlines that Ministers must be individually held responsible to Parliament for their personal conduct as well as the administration of their portfolio. If any minister fails to uphold their responsibility, they are open to a censure motion.

Question 7

Collective Ministerial Responsibility

Answer 7

The collective ministerial body should also be held accountable as a whole body to the Parliament. This convention theoretically empowers the House of Representatives to move a motion of no-confidence against the government.

Question 8

Censure Motion

Answer 8

A motion that can be moved against a government minister for proven misconduct. If the motion passes that minister must step down from their position.

Question 9

Motion of No-Confidence

Answer 9

A motion that is moved against the government. If successful, it shows that the House of Representatives has lost confidence in the government and that government must resign.

Question 10

Legislation Committee

Answer 10

A senate committee which will have a specific portfolio, such as the economics legislation committee. They hear referrals from the Senate to inquire into particular pieces of legislation. Legislation committees are always paired with a reference committee, they share the same membership and meeting space.

Question 11

Reference Committee

Answer 11

A senate committee which will have a specific portfolio, such as the economics reference committee. They hear referrals from the Senate on a particular inquiry into a certain matter. Reference committees are always paired with legislation committees, they share the same membership and meeting space.

Question 12

Senate Estimate hearings

Answer 12

Senate estimate hearings are conducted by the eight main Senate standing reference and legislation committees two times a year usually for four to six days. They scrutinize government spending in the eight main policy areas and effectively hold the government to account.

Question 13

Enabling Acts

Answer 13

Pieces of legislation which delegate power to the government, usually for the purpose of efficiency. For example, the Social Security Act 1991 gives the government the power to set the rates of welfare for pensioners, which makes it easy for the government to adjust pension rates for indexation.

Question 14

Subordinate Legislation

Answer 14

Refers to law made by the government under the authority given to them by an enabling act.

Question 15

Senate Regulation and Ordinances Committee

Answer 15

A Senate committee which reviews the use of subordinate legislation on behalf of the government and makes recommendations to the Senate as to which pieces of subordinate legislation should be taken away from the executive.

Question 16

Index of Instruments

Answer 16

A weekly report released by the Senate Regulation and Ordinances Committee which lists the pieces of subordinate legislation that the committee thinks are in need of concern. It also contains disallowance alerts.

Question 17

Disallowance Alert

Answer 17

Disallowance alerts are warnings released by the Senate Regulations and Ordinances committee in the Index of Instruments about pieces of subordinate legislation that should absolutely be disallowed by the Senate.

Question 18

Commonwealth Auditor General

Answer 18

A position which was created by the Auditor General Act 1997, to be the head of the Australian National Audit Office (ANAO), a statutory body. Their role is to provide the Parliament with an independent report in selected areas of the public service in regard to their financial reporting, administration and accountability.

Question 19

Administrative Appeals Tribunal

Answer 19

A tribunal created by the Administrative Appeal Tribunal Act in 1975. The AAT acts as a body of review for administrative decisions made by the public service, having the power to overturn certain decisions.

Question 20

Administrative Decision

Answer 20

A decision made by a member of the public service when they are executing the law.

Question 21

Writ of Mandamus

Answer 21

A court order requiring a government official to carry out or not carry out a certain action.

Question 22

Injunction

Answer 22

Writs issued to government agencies to stop carrying out a certain action.

Question 23

Statutory Construction

Answer 23

Refers to the way that statutes are written, so that they can be precise and easy to understand while at the same time they can be applied to a number of different situations.

Question 24

Ministerial Discretion

Answer 24

A practice in which statutes give Ministers certain discretion over areas of law so that they have the freedom to make decisions when different circumstances arise.

Question 25

Outline the most essential characteristic of a Westminster government and why

Answer 25

The most defining characteristic of a Westminster government is limited and accountable government. This is because the scale of government is so huge that is absolutely essential that the power of government be limited and checked. The government has the power of the state at their disposal, they have a monopoly on the use of force through the police and the military as well as the taxes from the people who live in the country giving the government an incredibly large amount of resources to work with. John Dalberg-Acton famously said “power corrupts and absolute power corrupts absolutely”, this sentiment forms the backbone of this principle, because of the sheer size and power of government it is the most important aim in a Westminster system to ensure that this power is limited and held accountable to the people so it is not abused.

Question 26

How does the fiscal scale of government relate to accountability?

Answer 26

The size of government can be measured by the ration between the amount of government spending and the total GDP of the country. Australia has the third lowest government size among the 30 OECD countries, but the size of government is still incredibly big at 26% of all GDP. This money is not the governments money however, it is the taxpayer’s money, and people are very protective of their money. This means that the government has a duty to spend the taxpayer’s money in ways that will directly benefit them, taxpayers pay their money and in return they expect quality government services. Government must be held accountable for this role especially to prevent cases of maladministration and corruption so it can be assured that taxpayers money is not going to waste.

Question 27

What is the traditional method of government accountability in the Westminster system?

Answer 27

The traditional method of accountability in the government in the Westminster system is the Westminster chain of accountability, which flows from the people into the executive down to the public service. This principle is achieved through a wide range of Westminster conventions and practices, the two most important for executive accountability being individual ministerial responsibility and collective ministerial responsibility.

Question 28

Explain the facets of individual ministerial responsibility

Answer 28

Minister are made up from Parliament, and the idea behind individual ministerial responsibility is that each Minister should be able to be held individually accountable for their conduct as an executive officer and the maintenance of their portfolio. Under this convention, it is theoretically possible for a minster to be deposed by the Parliament for any acts of serious misconduct both in their Parliamentary conduct and their portfolio. The procedure for this is a censure motion, which is usually moved by the leader of the opposition against the Prime Minister but can be moved against any Minister both in the Senate and the House of Representatives.

Question 29

What impact to censure motions have in the House of Representatives?

Answer 29

Censure motions in the House of Representatives will by their nature always fail, because the government has a majority and there is strong party discipline which ensures that the government will always win any vote in the house. This does not mean that censure motions are completely ineffective though, they can cause significant embarrassment to government ministers and draw media attention towards a particular issue. For example, in 2015 Malcolm Turnbull’s ministers Mal Brough, Jamie Briggs and Stuart Robinson were all subject to censure motions from the opposition due to perceived misconduct. While the censure motion directly achieved nothing, the public attention brought towards the ministers ultimately forced their resignation.

Question 30

What impact to censure motions have in the Senate?

Answer 30

Censure motions in the Senate are different from the House, because they have the chance to actually pass due to the lack of a government majority. In 2015 for example, Attorney General George Brandis was subject to a censure motion moved by Labor Senator Penny Wong for his treatment of a human rights officer. The motion passed, however it had no real effect other than bringing negative media attention to the Attorney General, who was strongly defended by Tony Abbott and held onto his role as the Attorney General.

Question 31

How effective is individual ministerial responsibility overall as an accountability mechanism?

Answer 31

Individual ministerial responsibility overall is not very effective as an accountability mechanism, because censure motions in the House will never pass and censure motions in the Senate can only serve to embarrass a government minister or draw negative media attention to them. Whilst they can still be effective, they are not nearly enough to hold the executive to account.

Question 32

Judge the effectiveness of collective ministerial responsibility as means of holding the executive to account

Answer 32

The basis of collective ministerial responsibility is that any member may move a motion of no-confidence against the government, and if that motion passes then the government must resign. There has only ever been one successful motion of no-confidence which was moved against the Arthur Fadden government in 1941 when the House voted to reduce the government’s budget by 1 pound. Besides this, motions of no-confidence have never succeeded and provided any real effect other than giving the opposition time to speak and point out flaws in the government thus attracting negative media attention to the government. Overall however collective ministerial responsibility achieves very little in terms of accountability.

Question 33

How does strong bicameralism in the Australian political system relate to the principle of accountability?

Answer 33

Traditionally in Westminster systems it has been the responsibility of the lower house to hold the government to account, but in Australia the lower house is very weak in doing so. This is due to executive dominance in the lower house which causes the traditional accountability mechanisms of individual ministerial responsibility and collective ministerial responsibility to fail. Australia has adopted from the United States however the principle of strong bicameralism, which refers to the presence of a strong upper house free from executive dominance. This is accomplished through the proportional voting system used in the upper house which usually creates a hung chamber. From this situation, the Senate has emerged not only as the house of review in terms of legislation, but also as the house which effectively holds the government accountable.

Question 34

Explain the significance of Senate reference and legislation committees into accountability

Answer 34

Senate reference and legislation committees exist in pairs and cover just about every aspect of government policy, for instance there exists an economics reference committee and an economics legislation committee. These committees share the same members and meeting space, the only difference is that legislation committees hear inquiries into legislation and reference committees hear inquiries into specific matters which don’t directly concern a piece of legislation. This robust system of committees ensures that someone is looking into every aspect of government activity at all times.

Question 35

How has the role of Senate Estimates Committees evolved over time?

Answer 35

Senate estimates hearings were initially only part of the budget cycle and focused purely on the budget, but over time estimates committees have evolved more broader powers. Their scrutiny now covers virtually all government activity, because almost everything the government does involves spending money.

Question 36

Evaluate the effectiveness of Senate estimates committees in holding the executive to account?

Answer 36

Senate estimates committees have grown to be one of the most important accountability mechanism in Parliament. In the Senate, the membership of these committees is shared with the normal standing committees which, because the government usually doesn’t have a majority, is most typically three government Senators, two opposition Senators and a minor party Senator. This means that the government does not dominate these committees which enables them to make effective judgement into the actions of the executive. When the budget is prepared the government must give its estimates to the Senate which are then referred to the relevant committees, this process in itself is extremely important for accountability because Senators can analyse with a forensic nature where money is going. Moreover, Senators especially in recent times have grown the power to ask detailed questions from other Senators and government Senators that can be called into the committees for questioning. Furthermore, public servants can also be called into estimates hearings to give direct information and reasoning behind certain government actions, and anything they say is protected under Parliamentary privilege. Ministers and public servants must answer all questions truthfully lest they mislead Parliament, thus Senators in estimates hearings can ask detailed prying questions into government policy and force answers in return. For example, in 2016 Larry Marshall, Chief Executive of the CSIRO, was called into a Senate estimates hearing to explain his decision to cut 350 jobs including jobs from the organizations climate change modelling section. There are however some weaknesses in estimates hearings, they cannot call ministers from the lower house into questioning and most ministers are from the lower house. Furthermore, in 2013 the Abbott government was able to avoid scrutiny in Senate estimates hearings in regard to immigration because he classified the matters as essential to national security and therefore they were not allowed to be made public.

Question 37

Evaluate the effectiveness of the Senate Regulations and Ordinances Committee

Answer 37

The Senate Regulations and Ordinances Committee is one of the oldest Senate committees, being active in the 1930s. Its recommendations are almost always accepted by Parliament, and it is very non-partisan in its operation. All subordinate legislation that can be disallowed by Parliament is automatically referred to the committee, and the committee considers each piece of legislation, which usually amounts to around 1500 a year, under these principles.
• That the subordinate legislation complies with the relevant Parliamentary act on a literal level and a spiritual level
• That the subordinate legislation does not have the potential to violate the rights of citizens
• That the subordinate legislation complies with the principles of natural justice and the rule of law
The committee releases all its findings in the index of Instruments weekly, in which contain disallowance alerts, alerts to the Senate that it should disallow a certain piece of legislation because it does not comply with one of the above criteria. Any disallowance alerts are debated in the Senate and voted on, if the vote passes then the subordinate legislation is disallowed and the government can no longer execute that law. An example of such a piece of subordinate legislation that was disallowed is the Dental Benefits Amendment Rule 2016, which was disallowed by the Senate in 2017. This process allows for the constant oversight on government subordinate legislation, ensuring the separation of powers doctrine is not breached and holding the government to account.

Question 38

In the modern era, why are the traditional methods of accountability not enough to hold the government effectively accountable?

Answer 38

Government has grown significantly since the pre-World War Two era when the Westminster conventions reached their height. Westminster conventions of accountability simply aren’t enough to deal with the sheer size of modern government, that is why new institutions such as the robust system of Senate committees have been developed as well as other institutions such as the Commonwealth Auditor General and the Administrative Appeals Tribunal.

Question 39

Explain why the Auditor General is able to efficiently execute their role

Answer 39

The Auditor General is an independent officer of the Commonwealth, they do not answer to the government and they are appointed by a joint Parliamentary committee in accordance with the Prime Minister. Because they are recommended by this joint committee, they will generally have bipartisan support which is important for an independent officer. Once they are selected, they have a tenure of 10 years and cannot be readily dismissed by the government. This means that the Auditor General is free to perform their role and cannot be influence by the government to do anything otherwise.

Question 40

How does the Auditor General ensure accountability in the public service?

Answer 40

The Auditor Generals role is to perform audits on various Australian Government departments and agencies. Audits are broken down into financial audits, performance audits and assurance reviews. Performance audits investigate how a department undergoes its day to day business including everything from how contracts are handled to human resources. The Auditor General then advises the government on how the department operates, if money is being spent the right way and if the desired outcomes are being achieved. Financial audits involve the ANAO going through the financial records of a department and ensuring that money is being spent efficiently and reporting on any possible corruption. Assurance reviews aim to make sure that government departments are acting in accordance with all the relevant statutes and codes on conduct that bind them. In 2013, Liberal MP Sophie Mirabella lost her seat, and in a media interview in the lead up to her re-election campaign in 2016 she mentioned that her electorate had missed out on 10 million dollars’ worth of health funding because they did not re-elect her. She lost the election, but the Shorten opposition recommended the situation to the Auditor General because candidates running for a seat are not allowed to offer inducements in return for votes. The fact that this inquiry was given to the Auditor General by the opposition shows the independent nature of their office shows how the Auditor General can act as an effective accountability mechanism. Moreover, in 2016 the Auditor General investigated the activity of the Australian tax office due to reports of distortion of numbers. Overall, the Auditor General ensures that accountability is maintained within the public service and maintains good standards.

Question 41

What is significant about the fact that he Administrative Appeals Tribunal is a tribunal not a court?

Answer 41

Tribunals are not courts, they do not exercise any judicial power, their power is delegated from the Parliament under their relevant act. Tribunals do not have to review decisions within strict accordance of the law, they have a certain amount of power to review decisions in light of merit as well. Tribunals are also far less formal than courts, there are no lawyers and they are not very expensive, and cases aren’t won or lost on technicalities. The significance of this is that the AAT can emphasis fairness and efficiency over the black letter of the law, being an effective accountability mechanism towards the public service.

Question 42

Discuss the role of the ATT in providing accountability

Answer 42

The ATT can review a wide range of administrate decisions made by the Parliament. In order to be able to review the decision, the act which empowered the Commonwealth officer to make that decision must say that those decisions can be reviewed by the ATT. When any person feels that a judgement made by a member of the public service under one of those acts is unfair, they can file an appeal to the ATT. The ATT will then review that decision not only on the basis of the relevant law but on the basis of fairness and merit. The ATT thus reviews decisions made by the public service and ensures they are fair, providing accountability for public officers and the executive. For example, in 2014 Iranian immigrant Armin Kashkool applied for Australian citizenship after having committed several criminal offences, but he set the date for his application before he had committed those criminal offences. The immigration officer decided to reject his application on the basis of merit, but Armin appealed to the ATT. The ATT reinforced the decision of the immigration officer on the basis of fairness. This shows how the ATT acts as an accountability mechanism for the public service, ensuring that the standards of administrative decisions are high.

Question 43

What principles of a Liberal democracy are important in allowing the Judiciary to perform its role as an accountability mechanism?

Answer 43

The Judiciary relies on the two principles of separation of powers and rule of law in order to act as an accountability mechanism towards the executive. Separation of powers ensures that the Judiciary is not influenced by the executive in any way when making judicial decisions, the strength of the judiciary in being able to freely hold the executive accountable relies on the separation between the executive and the judiciary as independent bodies. The rule of law requires that everyone be subject to the law equally, that the executive be subject to the same laws that they sponsor. It also requires due process be observed in lawmaking including government policy and delegated legislation. Judging the executive in accordance with the rule of law protects the rights of citizens and ensures that the executive is not abusing power.

Question 44

Why would a party choose to seek a judicial review of an administrative decision?

Answer 44

A party with standing may take the government to court. They may have already been to the AAT and felt that the outcome was not the one they wanted or felt was just, and they want to take the next step. Courts are expensive and time-consuming, so only parties that are desperate and willing to spend significant resources will take that step. Courts, unlike the ATT, also only decide on issues of law, and after a final appeal is rejected or the High Court makes a final judgment the issues cannot be pursued any further.

Question 45

Explain what civil remedies can be used by courts when hearing appeals against administrative decisions

Answer 45

When a court hears an appeal against an administrative decision, it has the option of supplying several civil remedies for the situation, the two main ones being writs of mandamus and injunctions. In 2016, an African refugee who was raped while suffering an epileptic fit in the detention camp at Nauru wished to have an abortion, but abortions were illegal in Nauru. The government sent her to Papua New Guinea to have the procedure done, but the refugee claimed that the standards in Papua New Guinee were not good enough and it was a risk to her health to have the procedure done there. She contacted an Australian refugee lawyer, who filed an injunction in the High Court to stop the government from having her have the abortion in Papua New Guinee. The case was referred to the Federal Courts, which granted the injunction and ultimately decided that the government had a duty to ensure that her health was maintained, and she was flown to Australia to have the procedure undertaken. This shows how the government was held accountable for its laws and the decisions that it makes in executing the law.

Question 46

Discus Australia’s policy on asylum seekers with reference to accountability of the executive through the judiciary

Answer 46

An asylum seeker is someone who claims to be a refugee, and a refugee is someone whose claim has been validated by the United Nations or a hose country. The Refugee Convention is international law signed by Australia detailing the processes of refugees and protecting their interests. Australia has long since dealt with asylum seekers coming to the country illegally by boat, the solution posed by the Howard Government was known as the Pacific solution. It involved detaining asylum seekers on an offshore detention centre in Nauru and was criticised for being harsh and un-ethical, but it achieved its purpose in reducing the number of asylum seekers coming to Australia and reducing deaths at sea. Nauru was a signatory of the Refugee Convention but had not yet ratified it in their own legislature. Many people did not like the Pacific solution, so when Kevin Rudd came to office in 2007 he abandoned offshore detention on humanitarian grounds. When Gillard replaced Rudd in 2010, the situation had changed, more asylum seekers were coming to Australia, so she developed the Malaysian solution. The solution involved a deal where Malaysia would give Australia 4000 processed and confirmed refugees and Australia would send 800 asylum seekers to Malaysia. Malaysia was not a signatory of the Refugee Convention, and in August 2011 David Manne challenged the Malaysian solution in the High Court on the grounds that Ministerial discretion in the 1958 Migration Act allowed the Minister to change asylum seeker policy but it also required that the Minister assure the Parliament that the asylum seekers would be protected. Essentially, because Malaysia had not signed the Refugee Convention, the government could not guarantee that the safety of the asylum seekers would be secured, and the High Court ruled that the Malaysian solution was invalid. The Gillard government tried to amend the 1958 Migration Act to fix the problem but it was blocked in the upper house. This is an example of accountability through the Judiciary, ensuring that the rule of law be maintained in government policy and raising the standards of the policy itself.