Accountability of the parliament

Parliamentary sovereignty

• sovereignty of parliament derives from its embodiment of popular sovereignty

• limited by

  • Australia’s written constitution

  • High Court reviews of parliament’s constitutional roles and powers

  • federal division of powers

Accountability mechanisms

• elections

Elections

• s7 and 24 “directly chosen by the people

• procedure allowing electors to choose their representatives and directly hold them to account for personal and political conduct

• elections confer mandates

• most potent means of accountability in a representative democracy

Criteria for a good electoral system

free elections

fair elections

regular elections

free

free- free from intimidation or influence

• The Australian Electoral Commission (AEC) administers the Commonwealth Electoral Act 1918 and manages the electoral process. The AEC is independent of parliament. Elected officials have no role in running elections.

fair

fair- allow a fair expression of the will of the majority while allowing minority representation

• Preferential voting in the HOR

  • uses single member electorates, ensuring a direct link between electors and representatives- (good for house of the people)

  • majoritarian system producing strong governments and oppositions through two-party dominance - expresses principle of majority rule (good for house that forms government)

• Proportional voting

  • diverse representation of minorities (good for house of review)

  • removal of GVTs removed preference dealing (2013 election of Ricky Muir from the
    Australian Motoring Enthusiasts Party to the
    Senate with 0.51 per cent of the primary votes.)

• Compulsory voting

  • large turnouts and firmer mandates → authentic expression of the will of the majority

  • supresses the influence of well- organised minorities, which could’ve been overrepresented if voting is voluntary

regular and frequent

• Section 28 of the Constitution sets a three-year maximum term for the House of Representatives. There is no minimum term.

• Section 7 of the Constitution sets a six-year fixed term for the Senate.

• Senate rotation — where half the senators are elected every three years — ensures continuity
  and renewal of the parliament at each election.

High Court ruling regarding elections

• Roach v Electoral Commissioner - allowed prisoners to vote

• Rowe v Electoral Commissioner - lifted unjustified burden on voting

• Capital Television PLV- access to political communication to make informed political (electoral) decisions

Electoral accountability in theory + examples in practice

• Parliament is accountable for its roles (legislation, representation, responsibility, debate)

• Given Australia’s highly partisan politics, electors are almost certainly evaluating and holding parties — rather than individual parliamentarians — accountable at elections

• the exception is independents in the lower house and some crossbench senators who use the media and their balance of power.

examples

• division of indi

• senator jacqui lambie

Division of indi

• Liberal Party minister Sophie Mirabella held Indi up to 2013- but public opinion - didn’t adequately represent Indi, excessive focus on ministerial career

• 2013- Cathy McGowan (Independent) won unexpectedly

• Voices for Indi was an electorate based grassroots political organisation that nominated Cathy McGowan’s election and supported her campaign.

  • organised Kitchen Table Conversations throughout electorate where 400+ electors attended and debated the issues of concern to Indi

  • process repeated in 2016 and McGowan was re-elected

• Indi made history at the 2019 general election when it became the first electorate in Australian history to replace a retiring Independent with another Independent — Dr Helen Haines.

Senator jacqui lambie

• first elected in 2013 when she was Deputy
  Leader of the Palmer United Party (PUP).

• became an independent senator with a BoP vote in 2014

• able to become a strong advocate for Tasmania, a small state where a personal profile is simpler to build.

• Lambie is ex-Australian Defence Force and used her Senate position to advance the case for better treatment of defence veterans.

• Lambie’s outspokenness (strong media profile), populist causes (banning burqa etc), concern for defence veterans (ex ADF), wide personal profile in Australia’s smallest state means Tasmanian electors hold her to account personally and choose her in preference to
  partisan candidates.

• She resigned from the 45th Parliament (2016–2019) after discovering she held dual citizenship, which put her in breach of the eligibility criteria of Section 44 of the Constitution. She renounced her British citizenship and was re-elected to the Senate in 2019.

Electoral accountability in the HOR

• 3-year terms using the preferential system

• winner’s bonus creates strong majorities in the HoR to form strong governments (minorities e.g. Morrison in the months leading up to 2019 can exist though)

• winner’s bonus distorts electors’ votes by skewing results in favor of the winning party

• single member electorate system

  • one representative per electoral division (151)

  • high standard of accountability - direct link, transparency through media and Hansard

Electoral accountability in the HOR example

• Example: Tony Abbott

• Tony Abbott won the seat of Warringah, an economically conservative safe Liberal Party electorate, in 1994

• The cabinet and liberal party were dissatisfied with Abbott’s presidential style of leadership,

• and the public considered him out of touch with Australians- electorate has become more socially progressive - more people believing in climate science (opposed expansion of the Renewable Energy Target), voted 75% YES in the marriage equality postal vote (Abbott had campaigned vigorously for a NO vote)

• Voices of Warringah an electorate focused, nonpartisan political organisation, used grassroots kitchen table conversations and community forums to support Zali Steggall

Electoral accountability in the Senate

• senate is the house of review and is a federal chamber

• infrequency reduces capacity of electors to respond to the misconduct of a particular senator

• multi member electorate system

• federal chamber, equally represents states

• malapportionment

multi member electorate system

• less accountability;

• cumbersome to vote for individual members- complex STV preferential voting system has many senate candidates listed

• Senator Lisa Singh - shows electors can exercise greater choice and reduce party control of senate voting outcomes + direct accountability

• more straightforward voting (above the line for parties) means electors don’t choose which candidate gets elected, and can’t hold them directly accountable

• multiple members to hold to account

Senator Lisa Signh

• after being demoted by the ALP to an unwinnable sixth position on the ALP group ticket for the 2016 election, she mounted a campaign to encourage below the line voting so electors gave preferences to her not the ALP

• shows electors can exercise greater choice and reduce party control of senate voting outcomes + direct accountability

Malapportionment

• NSW electors have about 15 times less voting power than Tasmanian electors, made worse over time because NSW’s population grows at a faster rate than Tasmania’s

• small state senators can have disproportionate power over legislation, particularly by holding the balance of power and occupying the crossbench

• they hold this power with reduced accountability- e.g. Tasmanian senators are less accountable than NSW senators because they’re answerable to fewer electors

Example: Accountability of Tasmanian senators

• e.g. Senator Lambie held the balance of power and demanded a secret condition to support the Morrison Government’s Migration Amendment (Repairing Medical Transfers) Bill 2019.

• Senator Lambie cannot be held accountable for the impact of a secret deal

• the 98 percent of Australian electors who don’t live in Australia can’t hold her accountable

Example: Senator Fraser Anning

• former Queensland Senator Fraser Anning was held to account for his actions when he lost his seat in the 2019 election

  • made many controversial statements in the Senate and media expressing radical views on race, Islam and immigration

  • several of Anning’s advisors were found to have close links to white supremacist groups such as True Blue Crew

  • punched a 17 year old protestor, William Connelly

types of campaigns

electorates can be safe, fairly safe (56-60 percent) or marginal depending on the size of the swing (percentage change in the vote) needed to unseat the sitting MP

• marginal seat campaigns

• sitting member last campaigns

Marginal seat campaigns

• more time and resources spent by parties in marginal electorates

• marginal electorates are critical to determine who will govern

• Bennelong became a marginal seat ahead of the 2025 federal election due to a major boundary redistribution that dragged the electorate eastward, absorbing affluent, historically Liberal-voting territory from the abolished seat of North Sydney and wiping out Labor’s previous 1.0% majority down to a nominal Liberal lead of just 0.04% (a mere 84 votes).

• To secure the highly diverse seat, incumbent Labor MP Jerome Laxale pivoted his strategy by using "teal" colored campaign posters to distance himself from traditional party branding, heavily doorknocking on hyper-local issues like healthcare access, and emphasizing his visibility to new constituents.

• Meanwhile, the Liberal Party and their candidate, Scott Yung, aggressively targeted Bennelong's massive Chinese-Australian diaspora by utilising narrow-cast campaigning on multicultural platforms like WeChat

• Laxale ultimately bucked the national trend to secure a second term with a significant swing.

sitting member last campaign

• used by politically active groups or micro parties to maximize the electoral accountability of MPs they hold responsible for laws or policies they oppose

• issue how to vote cards that preference the sitting MP last

• in contemporary elections, most candidates rely on preference flows to reach the absolute majority. by directing preferences away from them, it impactfully undermines chance of re-election

• e.g. sitting MP for Bass (Tas), Andrew Nikolic, lost his seat to the ALP’s Ross Hart. The progressive pressure group GetUp! had sent 90 supporters to hand out ‘how to vote cards’ advising Bass electors to put Nikolic last on their ballot paper. This strategy had great effect.

Accountability through privileges and interest’s committees

parliamentary privilege - exemption from judicial accountability to create an enhanced form of freedom of speech for parliament to perform its functions

Privileges committees

• aren’t courts so,

• can’t exercise judicial power- instead are tribunals that reprimand and discipline members for breaching privilege

• lack impartiality and independence- proceedings can be contaminated by political interest e.g. privilege breaches are newsworthy and reported by media, heightening stakes in political contest

interest’s committee

• both houses- HOR - privileges and interests in one committee, senate two committees

• makes financial interests transparent

• declare shareholdings, property, investment etc which are registered and checked by interests committees- investigated to be up to date and conflicts of interest

Accountability through parliamentary procedures and processes

• s50 gives each house of parliament the power to make its own rules and orders in relation to:

• “mode in which its powers… may be exercised and upheld” → proccesses

• “the order and conduct of its business and proceedings” → procedures

• processes (e.g. scrutiny of bills, debate) and procedures (e.g. rules of debate, motions, notice papers) are codified in standing orders

Speaker and the president

Procedural digest

Order of business

The speaker and the president

• presiding officers that uphold the standing orders in their chamber

• and are members of parliament, but don’t vote on motions unless to break deadlocks

• impartiality is expected,

• however

• but it is a political appointment by vote that a majority government will always win, and the character of the speaker has a significant influence

• e.g. Bronwyn Bishop MP during 2013–2015 when she ejected approximately 400 MPs from the house under Standing Order 94A; of these, only seven were from the government side → partisan bias.

• minority governments often accept an independent or other non-govt MP as Speaker e.g. minority Gillard gov’t nominated ex- liberal peter slipper MP as the speaker

• senate president is a consensus appointment because senate majorities are not assured → presidents more impartial than speakers ; standing orders are also less easily manipulated

• by drawing attention to a “point of order” any member can refer a matter to the speaker or the president, requiring them to interpret standing orders and restore order in the house

• however

• standing orders can be suspended or amended by majority vote- government can manipulate standing orders through executive dominance

Procedural digest

• published each week or fortnight

• contains rulings of the Speaker and any new precedents or unusual situations that arose

• members expected to read it and stay informed about rules

• if parliamentarians persist in contempt of the standing orders or the rulings of their presiding officer, they may be ordered from the chamber for a period of time at the presiding officer’s discretion

Order of business

• agendas govern each sitting day through scheduling parliament business

• accountability through ensuring allocation of time to each of its processes- legislating, representing, debating and responsibility

• opportunities to debate and move motions

• senate

  • sets its daily agenda by “the red” (order of business) and the notice paper (holds name of senators who wish to participate in debate, move motions and other formal proceedings)

  • used by president to run the senate

• house

  • order of business and notice paper

  • used by the speaker to run the house

Legislative process

• provides opportunities for representative lawmaking and scrutiny

• gov’t may gag and guillotine legislative debate and vote through gov’t bills with little debate or scrutiny

Debate

• parliamentary privilege allows debate for issues of importance

• gov’t can reduce debate opportunities by manipulating standing orders

Responsibility

• members can use question time and the conventions of ministerial responsibility for accountability

• dominance of executive undermines responsibility procedures and processes

Parliamentary committees

• small specialised subset of private members of parliament (sop- ministers can’t be in them)

  • has a duration (standing committees form when a parliament sits after an election and dissolves with it after election, select committees dissolve after achieving their purpose)

  • has a purpose/ specific area of parliament’s work to focus on (legislation, inquiry, scrutiny)

  • has a defined membership (joint, senate or HOR)

• under standing order 29, parliament sits formally for around 1/5th of the year

• these two allow it to function efficiently

  • specialisation (apportioning work to specialised subsets of its members)- improves scrutiny, representation

  • division of labor - efficient resource use

• around 50 committees

Accountability through committees

• makeup of parliamentary committees reflects partisan balance of the house where they form

• these processes reduce the effect of partisanship

  • closed sessions- no incentive for political point scoring and posturing because media and public are absent

  • constructive cross-party relationships- working in small groups over long periods allows strong professional and personal relationships to develop across the partisan divide

  • independence of senate committees- more diversity means more effective accountability role

• private members with no role in the executive or shadow ministry’s central parliamentary role is participating in committees

• Liberal Party backbencher Andrew Hastie is a retired army officer with extensive military experience. From 2016-2019 he served on

• the Joint Standing Committee on Foreign Affairs, Defence and Trade,

• was chair of Parliamentary Joint Committee on Intelligence and Security.

• he concurrently served on both committees

Legislative accountability role

• parliamentary joint committee on human rights

  • The Human Rights (Parliamentary Scrutiny) Act 2011 makes the Parliamentary Joint Committee on Human Rights mandatory for each parliament

  • scrutinise legislation for compliance with seven international human rights agreements

• Scrutiny of Bills Committee

  • Since 1981, the Senate Standing Committee for the Scrutiny of Bills has assessed egislation for its effect on rights, the rule of law and parliamentary proprietary

  • It tables reports to alert the Senate of bills it thinks are of concern.

Accountability through judicial review

• constitutional law

• electoral law

• other commonwealth statutes

• synergetic and complementary relationship between parliament and judiciary - allowing improvements and corrections to accumulate in a continuously updated body of statute

  • courts review statutes for intent, clarity and conflict with other statutes → thus reviewing the legislative role of parliament

  • parliament can amend, repeal or replace a faulty statute discovered by the courts

constitutional law - legislative powers

• review scope and extent of exclusive and concurrent lawmaking powers

• Spence v Commonwealth (2019)

• HCA upheld QLD’s 2018 ban on political donations from property developers, striking down a federal law (section 302CA) designed to immunise federal political parties from state-level restrictions

• held that the Commonwealth provision was invalid to the extent that it exceeded federal constitutional power, thereby confirming that the Commonwealth Parliament cannot legislate beyond the scope of its authority simply by framing a law as part of electoral regulation.

• This decision is significant because it reinforced constitutional accountability by requiring federal legislation to remain within the limits of the Constitution

• Preventing the Commonwealth from using its legislative power to override valid State anti-corruption measures without proper constitutional support.

constitutional law - financial powers

• reviews taxing and spending powers

• uniform tax cases (1942) (1957)

• It declared that while the Commonwealth could not legally prohibit states from imposing an income tax, it could effectively compel them not to by leveraging its power under Section 96 to attach strict conditions to financial grants

• These cases show that the High Court reviews the Commonwealth Parliament’s financial powers by examining not only whether a law fits within a constitutional head of power, but also how multiple powers operate in combination. In the first case, the Court accepted a broad reading of the taxation and grants powers during wartime; in the second, it confirmed that indirect pressure on the States was constitutionally permissible, so long as the Commonwealth did not directly command State action.

constitutional law - qualification of members of parliament

• Qualification of members of parliament

  • s44

  • Examples: Senators Canavan, Ludlam, Waters, Roberts, Nash and Xenophon, and MP Joyce

  • Reviews of senators’ bankruptcy status (Cullerton) and pecuniary interest (Day)

Electoral law

• Election results

• Court of disputed returns

  • Reviews election results where there is doubt about a result

  • Fills casual Senate vacancies when a senator dies, resigns or is disqualified

  • Loss of 1375 WA Senate ballot papers

  • Disqualified members of the 45th Parliament replaced by countbacks of ballot papers

• Ensures free, fair elections

  • technically under constitutional law - free fair elections are aligned with s7 and 24 that both houses are “directly elected by the people”

  • Rowe v Electoral Commissioner

  • Roach v Electoral Commissioner

Other Commonwealth Statutes

• Statutory interpretations

• Federal Court; Federal Family Court; and Federal Circuit Court

• Interprets and declares the meaning of statutes falling within the jurisdiction of a Chapter 3 court

• Timber Creek Case (2019) (Native Title Act 1993)

  • The Timber Creek compensation case (Northern Territory v Griffiths) is a landmark 2019 High Court of Australia ruling that established the first legal framework for calculating native title compensation. The court awarded $2.5 million to the Ngaliwurru and Nungali Peoples for the extinguishment of their native title rights across 127 hectares of land. Significantly, the ruling determined that non-exclusive native title rights are valued at 50% of the land's freehold value, while also setting a major precedent by formally recognizing and monetizing the cultural and spiritual loss associated with damaged connection to country