Accountability of the Executive

  • The administrative arm of government that executes the Acts of the legislative and the decisions of the judiciary (civil service)
  • Also, however, it is also the policy making centre of government, and seems to control and formulate all legislation (PM and Cabinet)
  • Ministers show a lack of enthusiasm for resigning

Summary

  • IMR and CMR (somewhat effective) – Accountable to parliament
  • Parliamentary procedures such as QT (not effective)
  • Elections and Parliament (effective and not effective)
  • Committees such as Estimates and Public Accounts and Audits (effective)
  • Westminster Chain of Responsibility (not effective)
  • Judicial review (effective, but rare, costly and slow)
  • Royal Commissions (mostly not effective)
  • Australian National Audit Office (somewhat effective)
  • GG – but only in reserve
  • Their own party
  • Other integrity agencies (AAT, Ombud, corruption agencies)

Parliamentary procedures

Summary: See Parliament pages for more details.

  • A significant role of Parliament, in theory, is to hold the Executive to account
  • Through no confidence motions, censure motions, Question Time, Estimates etc.
  • Convention that PM must have the confidence of the HoR
  • IMR
  • However, in reality, Parliament rarely holds the Exec to account due to party dominance
  • The governing party is hardly going to censure their own, but many discipline them
  • This role is revived in the Senate, due to minor parties, and during hung parliaments: 43rd.
  • Committees, especially Estimates, are very effective in scrutiny of the Exec and spending

Westminster Chain of Responsibility

A system which should hold the Executive to account.

  • Public Servants are accountable to:
  • Ministers are accountable to:
  • Prime Minister is accountable to:
  • Parliament is accountable to:
  • Public through elections

 

  • However, as the Departments grow in numbers, it is impossible to expect that the Minister in charge is able to know about every single thing that occurs in the Department – they can no longer be personally accountable
  • Hence, the Ministers are able to deflect blame if his department makes a mistake
  • IMR, with respect to Ministers being accountable to the actions of their department, has never resulted in the Minister resigning.

The public service

  • The public service should be able to give frank and fearless advice to the Minister.
  • However, as the Department Head’s (called Secretary) jobs are now in 4-year contract (changed by John Howard) rather than having tenure, they became more political appointments.
  • Reason: The Government is able to work with the Departments, instead of undermining policies and hence hold senior public servants to account
  • E.g. 1999 John Moore (Defence Minister) sacked Paul Barratt over a dispute with the Collins Class Submarines
  • The civil service is accountable to the Minister, and can be sacked by the PM and Cabinet with little notice

Relations between politicians and public servants

  • Thousands of people are responsible to a single Minister, who are not necessarily expert in that portfolio
  • Ministers are assisted by their advisory staff, who act as their eyes and ears, and also as the go between.
  • They often exercise a significant, if variable, influence over policy
  • High degree of frustration on both parties (senior public servants and Ministers)
  • Apparent lack of competence on the part of Ministers, and unresponsive to Government policy on the part of the public servants
  • Now on limited term contracts, which means Gov’t can finally get full cooperation from the Department, at the expense of frank/fearless advice, apolitical advice and impartiality
  • The Public Service Act 1997 effectively placed the final nail in the coffin of a career service, replacing the previous 1922 Act.

Note: political advisors are exercising a lot of influence, yet are accountable only to the person who employed them

  • E.g. many backbenchers are concerned about the influence of Peta Credlin, Tony Abbott’s Chief of Staff
  • They inhabit a grey area – they cannot be held to account by Parliament (re: Fiona Nash (Assistant Health Minister) and her Chief of Staff, Alistair Furnivall, apparent conflict of interest
  • Also, act as shields for Ministers (children overboard affair)

A black hole of the core executive into which responsibility disappears

Harry Evans, former Clerk of the Senate

Collective Ministerial Responsibility

  • The convention that members of Cabinet must all publicly support all Cabinet decision, even if they privately disagree.
  • They must stay silent, accept the decision and publicly defend it, if needed
  • If they are unable to do so, they must resign
  • Unity, solidarity, secrecy

Cabinet solidarity:

  • All Cabinet meetings are to be kept confidential, and all Ministers must agree publicly.
  • This is important to ensure that the Cabinet can make their decisions in secret, and show a united face to Parliament
Disadvantages:
  • Not representing their electorate
  • Not holding up their views
  • Promotional prospects
  • Executive dominance of Parl

Only examples:

Stuart West, 1984

  • Resigned from the Hawke Cabinet over disagreements with uranium mining

Gary Punch, 1988

  • Resigned from Hawke Cabinet over building a 3rd runway at Sydney Airport.
  • However, he was reinstated as a Minister almost immediately (but not the same portfolio- from Telecommunications and Aviation, to Defence Support and Research)
  • This could be an example of how CMR does not work, as Punch still upheld his resistance to the runway
Effectiveness:
  • Seems to be effective, as only 2 Ministers have publicly resigned
  • However, Cabinet leaks seem to point otherwise
  • Low number of resignations could also point out that CMR is not doing its job properly: Cabinet Ministers are disagreeing, but not resigning

Individual Ministerial Responsibility

A Westminster convention: Ministers are personally accountable to Parliament for their probity and propriety.

Probity:
  • Ethical, moral behaviour
  • Not mislead Parliament
  • Not be corrupt – use their position for personal gain
  • Avoid conflict of interest
Propriety:
  • Good management of government departments
  • Responsibility for the actions of their departments

In practice:

  • In current times, Ministers are no longer resigning. This is because they are no longer accountable to Parliament: censure and no confidence motions rarely pass (except during hung parliaments).
  • Instead, they are more accountable to the Prime Minister and their party, who can force the resignation of the Minister
  • This rarely happens: Ministers often withstand calls from Opp’n and the media. See Gillard and Garrett on their schemes during the Rudd government.
  • It only occurs when the PM thinks that the scandal is too politically damaging
Improbity:
  • Most Ministers have resigned due to allegations of improbity:
  • Joel Fitzgibbon (Defence Minister) misleading Parliament in 2009
  • Arthur Sinodinos (Assistant Treasurer) 2014 through his connections to Australian Water Holdings
  • Note that no allegations of corruption/misconduct have been made against him; could be an example of how IMR is misused
Impropriety:
  • Very few (none) have resigned due to impropriety and departmental errors:
  • Bronwyn Bishop (2000) kerosene bathing (Minister for Aged Care)
  • Peter Garrett – 2009 pink batts/home insulation scheme (Minister for Environment)
  • Neither resigned over the scandals etc. even after calls from media and opp’n

It is widely accepted that these crucial doctrines have never operated as a means of ensuring that Ministers are held responsible for their actions

– Richard Mulgan on IMR and CMR

Ministerial codes of conduct:

  • Focus on personal honesty
  • Specific rules dealing with corruption and declaring interests
  • Financial accountability
  • Howard lost many Ministers due to strict rules

Judicial review

  • Judiciary can hold Exec to account when what they have done is ultra vires
  • Pape v Tax Commissioner 2009
  • Williams v Commonwealth 2012
  • Exec tried to fund programs without going through Parliament
  • HC rejected it
  • However, complexity and cost of court proceedings limits the effectiveness

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