Accountability of Parliament

Summary

  • Elections – the ultimate way Parliament is held to account (effective, but limited)
  • Privileges committee (somewhat effective)
  • Legislative committees (effective)
  • Standing orders (effective, but Speaker partisan)
  • The courts (judicial review) (effective, but rare etc.)
  • Other parliamentary processes
  • Their own party
  • Not currently, but Code of Conduct could be useful

Elections

  • In England, in the old days, the House of Commons were filled with people controlled by peers (through rotten boroughs, pork barreling )
  • So the Parl was made up of groupings of people, not parties
  • Hence, it was easy for the Parliament to ‘make or break’ government, as the groups had no strong affiliation
  • Hence, PM and Cabinet could change, based on the confidence of different groups

Tight party discipline has made this theory redundant: since MPs now vote in parties, and stick to it, the power to make/break Gov’t has moved to the people through elections

  • People vote for parties (usually) or independents, and the government is relatively stable
  • Only during hung parliaments does the first case work, and the HoR is able to change gov’t without elections

Parliamentarians are directly accountable to the people through elections.

  • If the people do not approve of an MP or Senator, they show their dissatisfaction at the next election.
  • Section 24 of Constitution
  • However, elections only occur every 3 years, so it is difficult to hold Parl to account for particular policies

Parliamentary privilege

Parliamentary privilege refers to two things: the rights, privileges and immunities of parliament, and the power to protect the integrity of the processes.

  • Parliamentary privilege exists for the purpose of enabling the houses of the Parliament to carry out effectively their functions
  • Protected by the Parliamentary Privileges Act 1987
  • Includes immunity from criminal or civil action (defamation etc.) Protects freedom of speech, as it is essential in allowing Parl to debate and inquire effectively
  • Includes power to punish contempt, which declares an act a contempt and to punish it. See Craig Thompson. Parl should be able to protect itself from acts that impede performance.

The traditional mechanism to hold parliamentarians accountable has been the rules of privilege and the role of the privileges committee.

Heffernan, 2002:

  • Used parliamentary privilege to make unfounded accusations against Kirby J
  • The documents he relied on were found to be forgeries
  • He was censured by the Senate, but no further action was taken against him
  • This is an example of how parliamentary privilege was abused
  • The matter was not referred to the Privileges Committee, which reflects the ineffectiveness of the Committee
  • It is up to political parties to discipline their members
Advantages:
  • Able to speak freely without fear so that they can properly carry out their duties
  • Allows full and frank debate to take place
  • Able to raise suspicions/points with little evidence so that it can be properly investigated later
Disadvantages:
  • Can be used to make defamatory statements without basis
  • Is very rarely enforced when breached

Privileges and Members’ Interests committee

Russell Broadbent – Chair.

Senator Collins chairs in the Senate

  • Inquire into and report on complaints of breach of privilege or contempt which may be referred to it by the House
  • Inquire into the conduct of parliamentarians, as well as other incidents that occur during the business of the Chamber
  • Referred Under standing order 51 or by the Speaker under standing order 52
  • Current inquiry: Inquiry into whether the former Member for Dobell deliberately misled the House
Penalties:
  • House can impose up to 6 months imprisonment, $5000 fine for contempt
  • Last time this happened was 1955.
  • Fitzpatrick and Browne were found guilty of a serious breach of privilege by publishing articles intended to influence and intimidate a Member in his conduct in the House.
  • They were each imprisoned for three months

Not really effective – MPs are almost never referred, and hence not held to account for their behavior (Craig Thomson was the only one for decades).

Right of Reply: A citizen may apply to the Speaker and the Committee to publish a response to comments made about them in the House of Reps

  • This allows citizens to defend themselves and hold MPs to account if the allegations are unfounded
  • E.g. 2008 – Professor David Flint applied (and received leave) to respond to comments made about him by Lindsay Tanner MP in 2006 regarding unsubstantiated allegations the Australians for a Constitutional Monarchy engaged in tax fraud.

Register of Assets/Interests

  • One job of the Privileges Committees is to investigate the Interests and Assets of parliamentarians, as well as gifts
  • This is to ensure that no conflict of interests take place, especially for Ministers
  • Also to ensure bribery and corruption does not take place
  • These registers are freely available to the public, enhancing transparency and accountability

Standing Orders

  • Rules which govern how the Chamber is to run
  • E.g. Time limits, processes etc.
  • Section 50 allows each Chamber to establish their own SOs
  • Breaches of Standing Orders are usually punished by banning the offender from the Chamber for a period of time, after warnings.

Members’ Code of Conduct

  • Ensure that MPs are accountable and their behaviour ethical.
  • A set of principles and expectations that all members are required to adhere to.
  • Currently no Members’ code of conduct
Proposed powers:
  • Penalties and sanctions such as fines, bans, goal, expulsion
  • If Parl expels an elected Member, this would bring up issues of democracy.
  • Compulsory Register of Assets, and to investigate assets owned by MPs and their conduct
  • Personal conduct of Members
  • See Craig Thomson and Peter Slipper

Judicial review

  • The High Court can keep Parliament accountable, if it has acted ultra vires
  • However, it acts only ex post facto and cannot review legislation by itself

 

  • Best example: Communist Party Dissolution Act 1950; ACP v. C’th 1951; Referendum 1951
  • HC struck down the Act as unconstitutional

Also, if parliamentarians have committed a crime, they are not immune from criminal prosecution.

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