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What are the key mechanisms of executive accountability in Australia?

Are
they sufficient?
Undoubtedly the most powerful branch of Australian governance, the Executive
notably has abilities to legislate through the Legislature, to administer decisions
through delegated legislation, and to direct spending under the power vested by s61
of the Constitution. Understandably, this extensive power cannot go unchecked and
as such, multiple mechanisms exist both within and outside the branch to bring the
Executive to account for its decisions. Specifically, there is accountability through the
Legislative branch, through the Judicial branch, and through what has come to be
known as the integrity branch of government. Accountability, being held answerable
to questions, being transparent, and facing consequences for decisions, are integral
to curtailing abuse of executive power.
Foremost, Parliament exists as a central accountability mechanism to executive
power, offering oversight through notions of responsible government, parliamentary
committees and by extension, freedom of information. Responsible government
essentially lies in the integration of the legislative and executive branches; ministers
must be chosen from either the House of Representatives or the Senate and must
thus sit in on Parliament. Thereby, the Ministers become accountable to the entire
legislative assembly for their policy decisions. Arguably though, its weakness lies in
that it assumes the relative independence of MPs from the executive, and in a
Cabinet system which has become highly reliant on party unity, it is less effective in
maintaining accountability. Nevertheless, through systems such as Question Time,
through general debate and through general grievances, ministers are often brought
to the spotlight to answer to the questions of the assembly. Moreover, the existence
of the Senate, where parties often cannot hold absolute majorities, the diversity of
party allegiance allows for better questioning of Ministers. Parliamentary Committees
similarly make Ministers answerable by being able to oversee policy in bills, inquire
into specific executive actions and summon specific public servants or ministers.
Though freedom of information acts also as a public accountability measure, its main
use comes within Parliament itself, where tension in the control of information exists
between the Legislature and Executive. Formerly, under the Freedom of Information
Acts which operate in federal and state jurisdictions, people were able to request for
information unless it was declared exempt for a variety of reasons. Under the recent
reforms in 2010 by the Rudd Labor Government, this pull style delivery of
information has been changed into a more pull style system where information must
be reported by the executive unless it falls under an exempt category. Moreover, the
exempt categories of information were largely simplified into two categories:
unconditionally exempt, and conditionally exempt. In the former, such things which
affect national security, defence or international relations are exempt without
question. In the latter however, a public interest test is employed with the burden lying
on the agency to prove that it is not in the public interest to reveal the information.

Moreover, the costs of the information has been largely reduced, to essentially free
for the first hour of research done. This certainly improves on the accessibility of the
information and perhaps invites much needed reform after what Christopher Hood
refers to as a move towards Wikileaks style mass release of secret documents
prompted by the failure of transparency achieved by FOI legislation.
As the third branch of government, the Judiciary is important in that it is the closest to
being a truly independent entity. This proves useful in its role as being an
independent arbiter of the validity of administrative decisions taken by the executive.
Judicial review of these administrative decisions, as set out in the AD(JR) Act, is
important because it allows a reevaluation of decisions which may have been made
erroneously, or maliciously.
Perhaps most importantly, the Executive is accountable to bodies which have come
to be collectively known as the integrity branch. Though as former Senator Harry
Evans notes, it is paradoxical that the Executive, who seeks to evade accountability,
through Parliament, sets up these independent statutory bodies to monitor itself; what
must be understood is that these bodies are inherently devices of politics. Often, in a
zeal to humiliate the incumbents, a new government may hastily set up these bodies.
Nevertheless, they serve as perhaps the most sufficient forms of accountability
mechanisms. They include the Auditor-Generals office, commissions such as the
Crime and Corruption Commission, Royal Commissions, and above all, the
Ombudsman. The Ombudsmans office is unique in that whilst being part of the
executive, it is an independent body created under statute and answerable to
parliament. As former Chief Justice James Spigelman states, the pursuit of integrity
as done by Ombudsman and other bodies is to maintain fidelity to the public
purposes for the pursuit of which the institution is created and to apply public values,
including procedural values, which the institution is expected to obey. The
Ombudsman achieves this by being essentially an investigative body, which
instigates inquiries based on lodged complaints or as a proactive system reformer
(Stuhmke and Tran). They do not have any coercive powers and solely rely on the
culture of cooperation which exists between agencies and the ombudsman. As such,
it would be unfair to observe there remedial powers, which include: producing a
report to the agency or minister concerned under s15 recommending remedial action;
a report to Parliament under s16; or annual reports to Parliament under s19; and to
conclude that they were toothless tigers. Rather, their benefit for being free and thus
extremely accessible, much less formal than legal action and thus more available to
the public, independent and having extensive expertise and knowledge of the
complex workings of government by being able to submerge themselves in the
system, makes them sufficient bodies for accountability.
These key mechanisms are certainly intrinsic to the operation of the Australian
government. In terms of sufficiency, there is the known problem, which Evans alludes
to, of too much accountability. Where every minute deliberation, decision, and action

of the executive is overseen, scrutinised and reported, it becomes increasingly


difficult for the cogs of government to turn smoothly. The level of complexity of
government has indeed increased beyond the comfortable bounds overseen by mere
responsible government and freedom of information legislation; indeed, extraparliamentary accountability mechanisms have become required, and subsequently
have succeeded in sufficiently maintaining executive accountability.