THE SENATE AND PARLIAMENTARY ACCOUNTABILITY

 

Harry Evans

Clerk of the Senate

 

Discussion Paper No. 65

May 1999

 

ISBN: 0 7315 3408 5

ISSN: 1 030 2190

 

Foreword

This Discussion Paper was originally prepared as a public lecture which was delivered on 12 April 1999, as part of the series on Democratic Governance: Improving the Institutions of Accountability organised by the ANU Graduate Program in Public Policy. The series involved public presentations on a number of Monday evenings from March to June 1999.

The series of public lectures was opened by the Hon Philip Ruddock MP Minister for Immigration and Multiculturalism speaking on ‘Executive Government and Improved Accountability’. Other speakers included: Hon Bob McMullan MP, shadow minister for industry, on ‘The Responsibilities of Opposition’; John McMillan on ‘The Courts and Government Decision-Making’; Pat Barrett, Commonwealth Auditor-General, on ‘The Responsibilities of the Auditor-General’; and Philippa Smith, former Commonwealth Ombudsman, on ‘The Office of Ombudsman’.

The Program is grateful to the invited discussion openers who contributed so much to the effectiveness of the series through their comments and discussion: including Alan Ramsey of the Sydney Morning Herald; Lauchlan MacIntosh of the Australian Automobile Association; Dr Marian Simms of the ANU; Sue Tongue of the Immigration Review Tribunal; and Verona Burgess of The Canberra Times.

John Uhr

Series Convenor

 

Responsibility and accountability

The framers of the Australian Constitution adopted a set of institutions which they called responsible government. At that time, this meant that the executive government, the cabinet, was responsible to the lower house of the legislature in the sense that the executive could be removed from office by that house if that house considered that the executive no longer merited the house’s confidence. Even at that time there were dissenting voices who warned that responsible government no longer worked as supposed. Since then, we have become familiar with their thesis in an updated form: the executive controls the lower house through a disciplined party majority, and the house no longer removes governments or installs new ones, except in times of great political crisis involving splits in the government party which are now highly unlikely to occur. Responsible government has disappeared, or at least developed into something different.

We now no longer speak of responsible government in that sense. Instead, we settle for something less, called accountability. Governments should be accountable to Parliament, that is, obliged to give account of their actions to Parliament and through Parliament to the public. Governments are then responsible to the electorate at election time.

The problem with this picture is that the system of government has continued to develop, and has moved on again in a way which requires a further reassessment. Governments now expend a large part of their time and energy suppressing parliamentary accountability, seeking to ensure that they are not held accountable by Parliament, that old accountability mechanisms do not work and that new ones are not introduced. Just as the party system developed to ensure that governments formed by the majority party are not responsible to Parliament, so that governments are never overthrown by Parliament, the system has developed further to ensure that governments are not held accountable by Parliament, so that they are less likely to be overthrown by the electorate at the next election.

Accountability resisted

Examples of this later development of the system, and of the way in which it has continued to develop even in very recent times, may be provided.

Later I will mention accountability measures undertaken in the Senate, one of which was the establishment in 1981 of the Scrutiny of Bills Committee to scrutinise legislation, with independent advice, to ascertain conformity with criteria related to civil liberties and proper legislative principle. The establishment of the committee by the Senate was opposed by the government and voted against by most government senators. Some government senators were extremely embarrassed by the government’s decision to oppose this new measure of accountability, and some of them crossed the floor to support the establishment of the committee. If a similar issue were to arise now, there would be no embarrassment and probably no dissidents. Governments now regularly oppose all accountability measures, and can rely on their backbenchers’ unwavering support in doing so.

Another example is provided by the frequent passage by the Senate of orders for production of documents. These orders require ministers to produce relevant documents about matters of significant public concern and controversy. Most of these orders are complied with, for reasons which I will give later. The significant points are that nowadays senators have to resort to these orders because mere requests for documents can be assumed to be ineffective, and it is assumed that governments will resist the passage of the orders in the Senate and will probably not produce, on various well-worn grounds, at least some of the documents ordered.

This accountability measure has also been adopted by the Legislative Council of New South Wales. The state Treasurer, Mr Egan, has not only resisted orders by the Council for documents but has spent a great deal of the taxpayers’ money in the Supreme Court and the High Court in attempting to establish that the Council does not, as a matter of law, have the power to require the production of documents. His attempts, which he justifies by his own theory of responsible government, have so far failed, but he is unrepentant. At a recent parliamentary conference I asked Mr Egan whether the public had the right to see documents relating to the Fox Film Studios/Showground agreement which he denied to the Legislative Council and which led to one of these cases. His answer was unusually frank. It was to the effect that the public does not have the right to see the documents, and that the government, having been elected to govern, has the right to determine which documents should be made public. When it was pointed out that the electors had also chosen the Council, he responded that the electors should be confined to choosing a government at election time and should not be allowed to elect a second chamber with the means to call the government to account. This, though not often stated, is the current theory of the system of government held by our governors. It amounts to a denial of accountability, that is, the right of the public to have the information required for an informed electoral choice.

Senate accountability measures

It is well known that the Senate, over many years, has developed measures to require greater accountability on the part of governments. I will list some of the more significant measures.

These measures are generically described as accountability measures because they are all founded on the requirement that governments explain what they are doing and why.

Government resistance

It would be difficult to discover anybody who would question the merits of these accountability measures, except ministers currently in power (ministers out of power usually claim to have invented them). Such measures would, I suspect, be universally accepted as meritorious. The significant fact about them, however, is that historically most of them were resisted by the government of day, and accepted only when required by a difficult numbers situation in the Senate. Governments have to be forced to be accountable; they resist accountability and have to be compelled to explain themselves. If this has not always been true it is certainly true now at least.

It may be argued that governments are always explaining themselves and that the public gets tired of hearing the explanations. A distinction has to be drawn, however, between governments telling the public what they would like to have the public think, and having to answer in a public forum difficult, probing and even hostile questions about their activities. That kind of questioning is essential to sound government and to the ability of the public to judge the performance of government.

Lack of accountability in lower Houses

The resistance of governments to accountability measures explains, and is also demonstrated by, the conspicuous lack of those accountability measures in lower houses. Where such measures are adopted, they are rigorously controlled by government, an example being the control exercise by governments over committee systems in lower houses. An enormous amount of mental energy has been expended in recent decades over the subject of parliamentary reform, but the fact is that reforms have taken place only in upper houses not under government control.

This is not to say that such upper houses work perfectly; they do not, and they are in need of further reforms. Accountability of governments would be drastically reduced, however, without such upper houses.

Enforcing accountability

How are accountability measures instituted in the first place, and how do they work, in the face of government resistance? The answer to this question is that such measures are established and operate only where a house has some hold over a government. Ultimately, the hold which a house has over a government is the ability to reject its legislation.

I am frequently asked by senators for advice on what can be done when governments refuse to provide information. I respond by drawing attention to a spectrum of remedies which may be undertaken. At one end of the spectrum is criticism of the government for failure to provide the information. At the other end of the spectrum is refusal to deal with all or some government legislation until the information is produced. The first end of the spectrum is usually seen as inadequate, while the other end is seen as too drastic in most circumstances. There is then the middle way: initiate a debate in the Senate so that government time which would otherwise be spent on government legislation is expended on the matter in contention. This is the hold which the Senate has over governments: if they do not produce appropriate information when required, their legislative program will be disrupted. Ultimately there is the threat that legislation will not be dealt with at all. Governments then have to weigh the embarrassment which may be caused by the disclosure of awkward information against the disruption of their legislative program. Usually they decide that the avoidance of embarrassment is not worth the trouble in the Senate. When information is very embarrassing they opt for the trouble in the Senate. The end result is that much information is made available which would not otherwise be known to the public, while the government may keep its most embarrassing secrets and allow the public to form its own judgment about its motives.

This is not to say that governments are never justified in withholding information from the public. There are well-established and legitimate grounds for not publishing some information. In the past cases of conflicts between the Senate and governments about withholding information, however, the case for secrecy has certainly not convincingly been made out.

Legislative powers the key

This situation exposes the fallacy of those who think that governments should be allowed to govern, that is, to pass all their legislation, but should be accountable to Parliament. In particular, it exposes as nonsensical the notion that the Senate could be deprived of all or some of its powers to block government legislation while retaining its beneficent accountability activities. In the absence of the legislative powers, the accountability activities would be ineffectual and would eventually perish. Governments would simply ignore them or legislate them away.

Accountability institutions

It has been stated that nowadays upper houses not under government control are the key to ensuring appropriate accountability of governments. There is one other institution which is vital to ensuring accountability: the independent judiciary. In many ways the judiciary is more effective than the legislature under current conditions. A very good illustration of this was provided by the refusal of the Keating government to disclose to the Senate certain advice provided by the Foreign Investment Review Board. The ground of that refusal was that such advice must be confidential in order to be candidly given. When this ground was raised in litigation before the Federal Court, the court not only rejected it but scoffed at it as "secrecy for secrecy’s sake" (Canwest and others v Treasurer of the Commonwealth (14/7/1997, not reported)). Those who put their faith in courts and legal remedies, however, should beware. A government with control over legislation as well as exclusive control over judicial appointments can soon whittle away legal accountability mechanisms and independent courts.

Both upper houses and courts are vulnerable and currently under attack. Clear thinking about how government actually works and about safeguards on power is required if the attack is to be resisted and accountability is not to be diminished but preserved and expanded. What is dangerous is the kind of muddled thinking displayed by the editorial writer of The Sydney Morning Herald, who, in the same editorial, argued that Mr Egan should hand over the disputed documents and that the powers of the Legislative Council should be curbed ("Release the Egan papers", 2 December 1998). A Council without powers would mean that governments could confidently operate in undisturbed secrecy. We must ensure that the institutions of accountability, in the words of the author of The Federalist, No. 51, have the means of their own defence.

 


Public Policy Program Discussion Papers

The Public Policy Program publishes occasional Discussion Papers by staff, students, visitors and others associated with the Program.

In November 1997 the program began making electronic copies of most recent Discussion Papers available to be down loaded from the program's website at http://www.anu.edu.au/pubpol/discussp.html (*marked below with an asterisk).

Enquiries should be directed to: The Editor, Discussion Papers, Public Policy Program, Australian National University, Canberra ACT 0200.

Papers published thus far are:

No. 1 Larry Dwyer, Estimating the Lifesavings Benefits of Controls on Hazardous Wastes: Two Problems for the Policymaker. (July 1986)
No. 2 Jane Marceau, Unequal Returns: Aspects of Opportunity in Australia. (October 1986)
No. 3 Rolf Gerritsen, Making Policy Under "Uncertainty": The Labor Government's Reaction to the "Rural Crisis". (February 1987)
No. 4 Eleanor Moses, The Oil Price Fall of 1986. (July 1987)
No. 5 P J Forsyth, Productivity Measurments in the Public Sector. (August 1987)
No. 6 Rolf Gerritsen, What Do Budget Outcomes Tell Us About the Australian States? (September 1987)
No. 7 Rolf Gerritsen, Collective Action Problems in the Regulation of Australia's Common Property Renewable Resources. (October 1987)
No. 8 Neil Marshall, Bureaucratic Politics and the Demise of the Commonwealth Tertiary Education Commission. (March 1988)
No. 9 Charles Maskell, Does Medicare Matter? (May 1988)
No. 10 Ray Jureidini, Public Policy and Marketplace Discrimination: Life Insurance and Superannuation. (June 1988)
No. 11 Roger Wettenhall, Overlapping Public Sectors; Notes on Foreign Public Enterprise Activity in Australia. (July 1988)
No. 12 Deborah Mitchell, Assessing the Adequacy of Social Security Payments. A Study Using U.K. Data. (August 1988)
No. 13 Rolf Gerritsen, Informing Wilderness Policy: The Distributional Implications of Conservation. (January 1989)
No. 14 Christine Fletcher, Isolated Aborigines and Road Funding Policies in Western Australia. (March 1989)
No. 15 Rolf Gerritsen, A Comment on the Appropriate Assignment of Policy Powers in the Australian Federation. (November 1989)
No. 16 Deborah Mitchell, Comparative Measures of Welfare Effort. (January 1990)
No. 17 Ann Cronin, Trends and Tensions in Performance Evaluation in the Public Sector. (February 1990).
No. 18 Deborah Mitchell, Comparing Income Transfer Systems: Is Australia the Poor Relation? (May 1990)
No. 19 John Uhr, Ethics in Government: Public Service Issues. (June 1990).
No. 20 Peter Cochrane & Rolf Gerritsen, The Public Policy Implications of Eucalypt Plantation Establishment: An Introductory Survey. (September 1990).
No. 21 F G Castles & D Mitchell, Three Worlds of Welfare Capitalism or Four? (September 1990)
No. 22 Francis Castles & Michael Flood, Divorce, the Law and Social Context: Families of Nations and the Legal Dissolution of Marriage. (January 1991)
No. 23 Rolf Gerritsen, The Impossible "Politics" of Microeconomic Reform. (February 1991).
No. 24 Duane Swank, Electoral and Partisan Influences on Australian Fiscal Policy From Menzies to Hawke. (May 1991)
No. 25 Francis Castles, On Sickness Days and Social Policy. (July 1991)
No. 26 Adrian Kenneth Noon, The Negligible Impact of Specific Purpose Payments and Australia’s "New Federalism". (August 1991)
No. 27 Kerry Barwise & Francis G. Castles, The "New Federalism", Fiscal Centralisation and Public Policy Outcomes. (September 1991)
No. 28 Francis G. Castles & Jenny Stewart, Towards Industrially Sustainable Development? Industry Policy Under the Hawke Government. (October 1991)
No. 29 Stephen Albin, Bureau-Shaping and Contracting Out: The Case of Australian Local Government. (January 1992)
No. 30 Adrian Kenneth Noon, Determining the Fiscal Policy Time-Frame: the Dominance of Exogenous Circumstances. (February 1992)
No. 31 Christopher John Eichbaum, Challenging the Intellectual Climate of the Times: Why the Reserve Bank of Australia is Too Independent? (January 1993)
No. 32 Joan Corbett, Child Care Provision and Women’s Labour Market Participation in Australia. (February 1993)
No. 33 Francis G. Castles, Social Security in Southern Europe:
A Comparative Overview. (March 1993)
No.34 Francis G. Castles, On Religion and Public Policy: Does Catholicism Make a Difference? (April 1993)
No.35 Rolf Gerritsen, "Authority, Persuasion and Exchange" (Revisited): The Public Policy of Internationalising the Australian Economy. (August 1993)
No.36 Deborah Mitchell, Taxation and Income Redistribution: The "Tax Revolt" of the 1980s Revisited. (September 1993)
No.37 Kim Terrell, Desperately Seeking Savings, Performance and Accountability. Policing Options for the Australian Capital Territory. (September 1993)
No.38 Francis G. Castles, Is Expenditure Enough? On the Nature of the Dependent Variable in Comparative Public Policy Analysis. (February 1994)
No.39 Francis G. Castles, The Wage Earners' Welfare State Revisited: Refurbishing the Established Model of Australian Social Protection, 1983-1993. (March 1994)
No.40 Francis G. Castles, Testing the Limits of the Metaphore: Fordist and Post-Fordist Life Cycles in Australia and New Zealand. (May 1994)
No.41 Louise Watson, Making the Grade: Benchmarking Performance in Australian Schooling. (August 1994)
No. 42 Siwan Lovett, Evaluating Reform of the New Zealand Science, Research and Development System: New Deal or Dud Hand? (September 1994)
No. 43 Choon Fah Low, An Evaluation of the Impact of the ANU’s Graduate Program in Public Policy on its Student’s and Graduate’s Careers. (October 1994)
No. 44 Einar Overbye, Different Countries on a Similar Path: Comparing Pensions Politics in Scandinavia and Australia. (August 1995)
No.45 Grant Jones, Games Public Servants Play: The Management of Parliamentary Scrutiny Before Commonwealth Estimates Committees. (August 1995)
No.46 Stephen Horn, Disagreeing About Poverty: A Case Study in Derivation Dependence. (August 1995)
No 47 Douglas Hynd. Concerned with Outcomes or Obsessed with Progress? Characteristics of Senate Committee Reports During the Period 1990-1994. (September 1995)
No. 48 Pip Nicholson. Does the System of Appointing Australian High Court Judges Need Reform? (November 1995)
*No. 49 Fred Argy,The Balance Between Equity and Efficiency in Australian Public Policy (November 1996)
*No. 50 Deborah Mitchell, Family Policy in Australia: A review of recent developments. (March 1997)
*No. 51 Richard Mulgan, Contracting Out and Accountability. (May 1997)
*No. 52 Cynthia J. Kim, Will they still pay up-front? An analysis of HECS changes in 1997 (May 1997)
*No. 53 Richard Mulgan, Restructuring -The New Zealand Experience from an Australian Perspective (June 1997)
*No. 54 P.N. Junankar, Was Working Nation Working? (July 1997)
*No. 55 Deborah Mitchell, Reshaping Australian ?Social Policy: alternatives to the breadwinner welfare state (December 1997)
*No. 56 Irene Krauss, Voluntary Redundancy from the Australian Public Service-its impact on people and families in the ACT (March 1998)
*No. 57 Peter Taft, Does who wins matter more or less? An analysis of major party candidate views on some aspects of economic policy, 1987-1996 (July 1998).
*No. 58 Elise Sullivan, A Case Study In The Politics Of Retrenchment: The 1997 Coalition Residential Aged Care Structural Reform Package (November 1998).
*No. 59 Richard Mulgan, Have New Zealand's Political Experiments Increased Public Accountability* (January 1999).
*No. 60 Michael Bergmann, The Snowy Mountains Hydro-Electric Scheme: How did it Manage Without an EIA? (February 1999)
*No. 61 Clive Hamilton, Using Economics to Protect the Environment (March 1999)
*No. 62 Withers, Glenn, Essays on Immigration Policy (March 1999)
*No. 63 Withers, Glenn, A Younger Australia (March 1999)
*No. 64 McMullan, Bob, Shadow Minister for Industry and Technology, The Responsibilities Of Opposition (May 1999)
*No. 65 Evans, Harry, Clerk of the Senate, The Senate And Parliamentary Accountability (June 1999)
*No. 66 Barrett, Pat, AM, Auditor General for Australia, Auditing in contemporary public administration (June 1999)



 

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