#7236 - Accountability In An Administrative State

Australia as a society evolved with much reliance on the government; most instruments of society being controlled by them – Australian democracy features “the appeal to government as the instrument of self-realization”.
This history has impacted societal regulations today; with very common activities (marrying, obtaining a bank account etc.) being subject to government scrutiny
But with this came the demand for heightened scrutiny of government and the ability to call it to account – for such mechanisms exist to do so:
- Political accountability through parliament (committees, question time etc.)
- Financial accountability through constitutional/statutory controls on finance
- Administrative law mechanisms like tribunals and oversight bodies
- Ethical responsibility and integrity of government employees (codes of conduct etc.)

Report of the Royal Commission into Commercial Activities of Government and Other Matters

The commission suggests that Australia’s “accountability” model continues to, though not follow, pay lip service to the British model of accountability. They make six key points:

Accountability is not intended to prevent government from governing but rather hold governments to account for the manner of their stewardship
Accountability is an obligation to all who hold public office and must be a condition of public service
The public is reasonably entitled to expectations of the government and officials they entrust power with – while not all can be entertained some that must be include adherence to norms by the constitution; policies and programs created by the government – these form the criteria of accountability
There are three principal avenues for accountability to be rendered; through the public as a community, accountability agencies acting on behalf of the public (Ombudsman), accountability of officers to their superiors (e.g. Ministerial)
1. The first is extremely weak and the first two together play a major role in creating adequate accountability
No single measure can effectively secure public accountability and there is no single path to achieving it – it can require a number of things including the adoption of procedures, periodic intrusion into government affairs etc.

Report of the Senate Select Committee on a Certain Maritime Incident

The commission talks about the nebulousness of the term accountability and its complex “continuum of relationships” but nevertheless acknowledges core principles such as:
- Legislative prescription for public service accountability and supporting guidelines which detail accountability measures
- Accountability within public services – obligations arising from relationships of authority with servants accounting for performance and being subject to sanctions and redirection. This ties in with responsible government and the ministers responsibility to parliament for his/her departments actions
- Legal and conventional obligations attached to ministerial roles – deliberately misleading the parliament is considered contempt
In consideration of all these mechanisms the children overboard incident stands out as “inimical to the transparency, accuracy and timeliness requirements that are vital for proper accountability”
They suggest that ministerial accountability as the focus for their subordinates should promote transparency and ensure integrity

Delivering Performance and Accountability – Australian Public Service Commission

Describes how the traditional vertical accountability model between the electorate, parliament and public service has recently extended horizontally with advents like Freedom of Information Legislation and Administrative Appeals processes.
This has been intensified by other accountability measures; some quasi-legal but still providing powerful checks on the government
Reform has been targeted at making public servants accountable to the public through mechanisms like Citizen’s Charters – public servants are accountable outwards to the public and upwards through the hierarchy (R Mulgan, “Accountability”)
- This idea of accountability is weak in the present but needs to be developed; as it stands no redress is available directly but rather through services providers (e.g. Centrelink) not public servants.

The text brings up the fact that there are a myriad definitions of accountability
- Accountability in the Commonwealth Public Sector – a direct relationship of authority where one accounts to another for performance or tasks conferred by that other. This extends beyond answering questions to setting goals and providing reports on the results
- Public Administration – Associated with the process of being called to ‘account’; is external in that account is given to another and thus it involves social interaction and exchange and implies rights of authority (in that those given account have superior authority to demand answers)
- Gaudron J (Corp of Enfield v Dev. Assess. Comm.) – refers to the need for executive government and administrative bodies to comply with the law and observe limitations in the exercise of their powers
- D Oliver (Public Law) – requires a person to explain and justify their decisions and acts against a criteria of some kind and then make amends for fault or error by compensation or reconsideration

Though the focus of the text is on legal accountability there is “no single path to...achieve... satisfactory public accountability” and hence there is no sharp divide in any form.

This form occurs mainly through Parliament and ministers who constitute the executive – they are responsible for ensuring the executive carries out the policies of the government. This is ensured through question time etc.
Accountability through parliament is chiefly concerned with authority and answerability – directions, comments, answers etc. Passing between ministers, agency and the public (the ‘transmission belt process’) –
- The system of responsible government incorporates moral and behavioural assumptions about government functions
The expansion of government has also resulted in key limitations of political accountability:
- The non-viability of complete scrutiny of government actions – it is focussed on major policy choices rather than day-to-day decision making
- The degree of control ministers can exert over executive agencies (most in relation to departments of state headed by them and least in relation to independent statutory authorities)
- It running counter to other forms of accountability – since it is inwardly focussed on serving the government and implementing its policies this can diminish its duty owed to the public and frustrate the notion that government is a public trust
But as these become apparent; emphasis on other accountability forms have been heightened.

H V Emy ‘The Politics of Australian Democracy: Fundamentals in Dispute’

Ministerial accountability refers to two propositions
- Ministers responsibility to parliament for the affairs of their department – this implies parliament can call ministers to account for mistakes in policy e.g. through question time
- Cabinets responsibility as a collective to parliament and the electorate for their government’s conduct – parliament or the electorate may dismiss governments with whom they are dissatisfied
This doctrine is underpinned by the idea that ministers, apart from being accountable to mistakes, must act responsibly in exercising powers and adhere to moral and behavioural assumptions about how “men should properly rule other men” – the purpose of parliament
The effectiveness of ministerial responsibility depends on things like the ability of MPs to question ministers, extract information and compel ministers to resign – it is doubtful that these exist adequately today due to things like party discipline and parliament’s strength relative to the executive
Hence it is doubtful that the doctrine provides an effective method of ensuring accountability

Finances is key to government functions – this type of accountability includes the expectation of the public of disclosure of fraud in the use of public monies, incompetence in management of public services etc
This occurs through a number of checks:
- Legislative approval required for taxation and expenditure etc.
- The auditor General – an independent authority who carries out financial statements to verify the use of money in accordance with financial legislation and also various performance audits to review any aspect of government operations

P Barratt, ‘Balancing Accountability and Efficiency in a More Competitive Public Sector Environment’

The auditor general makes a number of comments regarding his role – particularly focussing on the fact that his office focuses on giving an objective assessment on all areas of governments through financial statements and performance audits.

Quoting from a forum in the UK he notes the three fundamental principles of audit – independence from organizations being audited, the wide scope of the audit covering financial statements, legislatively, propriety and value for money AND the ability to make the results available to the public.

The broad purpose of administrative law is to safeguard the rights and interests of people; it does this by:
- Reviews of decision making – giving the right to challenge government decisions through courts, administrative...

#7236 - Accountability In An Administrative State - Administrative Law

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