Accountability of the executive (administrative)

The administrative executive

• focus on cabinet, ministry and public service

• methods of accountability:

• auditor general, ANAO and JCPAA

• administrative appeals tribunal

• judicial review

• parliamentary committees that review and inquire into gov’t decisions/ policy

• e.g. senate estimates committees, senate scrutiny of delegated legislation committee, joint committee of public accounts and audit

Senate committees

• independent of government

• estimates committees focus exclusively on accountability of the executive, covering every area of government activity

• 3 gov’t senators, two opposition senators, 1 crossbench senators

• paired committees- legislation and references function, sharing secretariat and members

  • common membership of senators and a common secretariat (staff)

Senate inquiries (ways to do it)

• in mid 2020, the senate was conducting 54 concurrent inquiries through its committees

• to conduct an inquiry, senate delegates task to the relevant references’ committees

• the scrutiny of bills committee sends bills to the relevant legislation committee

• senate can also self-refer an inquiry

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Task delegation

• to conduct an inquiry, senate delegates task to the relevant references’ committees

• 2020 - the Economics References Committee conducted inquiries into Australia’s naval shipbuilding capacity and the unlawful underpayment of workers by some employers

Scrutiny of bills committee

• the scrutiny of bills committee sends bills to the relevant legislation committee

• 2020- the Economics Legislation Committee was scrutinising the National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020.

Self referral

• Jan 2025 - Senate Education and Employment Legislation Committee self-referred an inquiry into the quality of governance of Australia's higher education providers

• substantive interim report exposed wage theft recoveries of $176 million between 2019 and 2024, and widespread insecure casual employment

• specific accountability measures directed - required to implement centralised oversight for employment law compliance, the Department of Education was directed to prioritise data collection on casual staff, and TEQSA was tasked with developing a monitoring and reporting framework for course quality and staffing.

Estimates committees

• each of the eight legislation and references committees form their own estimates committees who conduct special hearings into the government’s budget twice a year.

• Economics Legislation and References Committees will sit as the Economics Estimates Committees

• senate estimates committees, informed by the budget memorandum papers from the HoR, question public servants and ministers about government spending in an inquisitorial manner.

• powers have evolved from only scrutinising government spending to scrutinising virtually all government activity → justified by the claim that government activity involves spending public money

• examples of effectiveness - Senator Mathias Corman, Bridget Mckenzie, Covid 19

Limitation of estimates commitees

• can degenerate into partisan contests where the party agenda is pushed instead of enforcing accountability

• estimates committees cannot question most ministers- a lower house minister is represented by a delegated senator to appear on their behalf

Example: Senator Mathias Corman

• In 2017, Finance Minister Mathias Cormann arranged private flights through Helloworld by directly contacting its CEO, a personal associate and Liberal Party donor, raising concerns about conflict of interest and propriety.

• In 2019, Senate Estimates hearings subjected Cormann to prolonged and detailed questioning over whether the $2,780 flights constituted an undeclared gift and why proper procurement processes were bypassed.

• This scrutiny exposed that Cormann had not initially been charged, prompting public justification, media attention, and political pressure.

• As a result, Cormann repaid the cost once aware, and Helloworld was compelled to formally explain the situation as an administrative error.

• Highlights the strength of Senate Estimates committees in compelling ministers to publicly justify their actions, uncover administrative irregularities, and ultimately force corrective action

Example: Senator Bridget Mckenzie

• Following an Auditor-General report, Sports Minister Bridget McKenzie was found to have overseen a grants process that favoured marginal electorates, raising concerns of political bias and misuse of public funds.

• Prime Minister Scott Morrison directed the Secretary of PM&C, Philip Gaetjens, to investigate; the inquiry led to McKenzie’s resignation but was criticised for its limited scope and lack of transparency.

• During Senate Estimates, Senator Penny Wong rigorously questioned why the Gaetjens report was not released and challenged whether the Prime Minister had prior knowledge of the grants allocation process.

• These hearings publicly exposed concerns about executive accountability, the independence of internal investigations, and potential political interference, despite government ministers rejecting the allegations

Covid -19

During the COVID-19 crisis, Parliament’s usual scrutiny mechanisms (question time, committee processes) were disrupted, so the Senate created special select committees and maintained delegated legislation review to continue holding the executive to account

• called Finance Minister Seantor Mathias Cormann to answer about the Treasury’s $60 billion JobKeeper cost miscalculations

• called the chair of the National COVID-19 Coordination Commission’s advice to answer about its economic recovery plan and conflicts of interest in its membership.

• SDLC met regularly by teleconference to maintain parliamentary oversight of gov’t regulations, including exempt instruments and Henry VIII clauses

Senate standing committee for the scrutiny of delegated legislation

• parliament delegates lawmaking power through a primary statute containing clauses allowing the executive to create subordinate regulations, ordinances and instruments

  • allows efficiency and flexibility

  • breaches SOP

• not very partisan - composed of 6 senators - 3 government, 3 non government (2 opposition usually)

• oversight by SSCSDL - allowing parliament (superior legislator) to retain legislative control, using:

• scrutiny

• disallowance

Scrutiny

• guarding:

  • the lawmaking powers of parliament

  • rights of citizens

  • processes of natural justice and the rule of law

Disallowance

• parliament has accepted all its recommendations since its foundation

• senate acts on the committee’s recommendations by passing disallowance motions

• The Senate disallowed the Treasury Laws Amendment (Greater Transparency of Proxy Advice) Regulations 2021 in February 2022 on the basis that the rules were seen as too onerous, insufficiently justified, and likely to interfere with the proper operation of shareholder advocacy and market transparency

Auditor general

• an independent officer of the parliament

  • independent of the executive

  • Joint Committee of Public Accounts and Audit is the link between parliament and the Auditor General

  • Dr Caralee McLiesh

  • Recommended by the Joint Committee of Public Accounts and Audit, and the Prime Minister; and appointed by the Governor-General

• reports to parliament via tabling reports

• reports are scrutinised by the JCPAA

• conducts reviews of public service performance

• when an audit implicates a minister in wrongdoing, other parliamentary mechanisms such as IRM and senate estimates hearings may enter to enforce accountability.

Relevant governing statutes

• The Public Governance, Performance and Accountability Act 2013 is the most recent legislation covering the work of the Auditor-General and the ANAO.

• Auditor-General Act 1997 governs the Auditor- General of Australia and the Australian National Audit Office (ANAO).

• The ANAO is a statutory authority, with the Auditor General as head.

  • supports the Auditor-General to provide the Parliament with an independent assessment of selected areas of public administration, and assurance about public sector financial reporting, administration, and accountability

Reports to parliament

JCPAA must examine all reports tabled by the Auditor General in parliament

• JCPAA can conduct inquiries into matters referred to it by either house of parliament or initiate its own investigations

• focus on efficiency of the public service; accountability of government spending and the performance of public organisations such as departments, agencies and statutory corporations.

Conducts reviews of public service performance

• conducts reviews of public service performance, finances, and compliances with the law + investigates the proper administration of government programs

  1. Performance audits - inspection of gov’t agency/ department’s daily business e.g. hr management, cybersecurity, recordkeeping, using key performance indicators (KPI) to measure effectiveness and efficiency

  2. Financial audits- inspection of financial statements and records of a gov’t dept/agency to ensure accountable, efficient spending that isn’t corrupt e.g. Auditor General checks that government grants comply with statutory requirements, codes of conducts, limitations imposed on ministerial discretion etc.

  3. Assurance reviews- Auditor General ensures compliance with relevant laws, standards, codes and guidelines e.g. the APS is governed by the Public Service Act 1999, code of conduct, Sex Discrimination Act 1984

Example: Enviroment Protection and Biodiversity Conservation Act 1999

• act is Australia’s primary national environment legislation, enabling department of agriculture, water and environmetn to work with various states and territories

• all actions with national environmental significance must go through the process of :

1. Referral to the Minister for environment

2. Assessement of potential impacts, method determined by the Minister

3. Approval by Minister and determining any additional conditions

• ANAO assessed the effectiveness of this process of the dept. of agri,water and environ, finding that 79 percent of the approvals were non compliant with established procedures or contained clerical/administrative errors + conflicts of interest weren’t appropriately managed despite sound oversight structures establihsed by the dept.

• opponents - ALP, Australian Conservation Foundation, Greens- labelled environmental laws “fundamentally broken”

• Minister for the Environment Sussan Ley agreed that the report stressed the importance in change and gov’t had alr provided 23 mil in funding to adress many issues highlighted by the ANAO

• ANAO publishes the better practices guide and auditfocus newsletter to infomr and alert public servants to good administrative practices and of the presence of the ANAO as an accountability watchdog

Example: Bridget Mckenzie and Sports Rorts

• Exposed Systematic Pork-Barrelling: The ANAO investigated the $102.5 million Community Sport Infrastructure Grant program and officially revealed that the former Sports Minister's office used parallel, partisan assessments—such as color-coded spreadsheets—to funnel public grants into marginal and targeted election seats rather than allocating funds on merit. Published the January 2020 performance audit report (Award of Funding under the Community Sport Infrastructure Program)

• Uncovered Widespread Non-Compliance and Ineligibility: The audit revealed that 61% of approved projects fell below Sport Australia’s recommended merit cutoff score, while nearly half of the funded projects were actually legally or operationally ineligible due to pre-existing or late construction work.

• Disproved Executive Excuses Under Oath: When government officials attempted to downplay the audit’s findings, ANAO executives gave critical Senate testimony that directly contradicted claims that no ineligible projects received funding, detailing exactly how the administration bypassed established rules.

• Enforced Public Sector Accountability and Systemic Reform: The ANAO’s scathing findings provided the crucial evidence base that forced ministerial resignations and prompted national recommendations to tighten grant administration laws across all Commonwealth entities

Administrative appeals tribunal

• focus on public servants and ministry

• created by the Administrative Appeals Tribunal Act 1975

• an independent tribunal helping public test the merit of administrative decisions

• reviews administrative decisions of the public service and ministers where enabled by an Act or regulation, making merit-based decisions

• broad scope of AAT jurisdiction; commonly in the area of child support, CW worker’s comp, welfare entitlements, migration and refugee visas

• doesn’t have any official capacity to rebuke ministers or to rule decisions as unlawful, but its decisions can warn a minister/gov’t of potentially unlawful policy tribunal

• is a formidable force- can review administrative decisions within a broad jurisdiction, change decisons and make reccomendations

• The AAT finalised over 47,000 appeals between 1 July 2019 and 30 June 2020, and changed the original administrative decision in 26 percent of these cases

Tribunal meaning

• don’t have judicial power to enforce or itnerpet statutes- simply review administrative decisions, apply the law and can consider the merit of a decision

• emphasise fairness, informality, efficiency, timeliness and economy

• process based on due process/natural justice- adjudicators panel is impartial and unbiased, parties have an equal opportunity to present their side of the case, decisions are based on evidence and hearings
  are open and accountable

• parties retain control of their matter

Example: Migration and citizenship- the Hyde family

Christine and Anthony Hyde moved to Australia in 2009, applying for permanent residency in 2015.

• couples child was born in australia and diagnosed with cystic fibrosis

• application rejected on the grounds that their son did not meet the permanent residency health criteria and would be a burden on Australia’s healthcare system.

• In May 2019 the Hyde family appealed the
  decision to the AAT where it was found that
  the case met the requirements for ministerial
  intervention.

• An online petition calling for the
  Hyde family to be allowed to stay in Australia
  received over 115,000 signatures and calls
  from Victorian Premier Daniel Andrews for the
  Commonwealth Government to show ‘mercy’
  on the family.

• In July 2019 Immigration Minister David Coleman intervened in the case and ordered for the family to be granted permanent residence.

Example: Migration and citizenship- the Lund family

In 2013 the Lund family moved to Australia, Five years later they applied for permanent residency.

• However, the application was rejected by the Department of Home Affairs due to one of their children having Down Syndrome. Due to the costs of his healthcare needs, he failed the migration health requirement, leaving the entire family
  ineligible to stay in Australia. The family were given 35 days to leave. The Lund family appealed the decision to the AAT.

• In July 2020 the AAT overturned the decision and requested for it to be reviewed by the Department of Home Affairs.

Example: Robodebt

• Robodebt was an automated debt recovery program introduced by the CW gov’t in mid 2016 to calculate what beenfits individuals were entitled ot and recover overpayments of welfare

• the income averaging algorithm (centrelink and ATO) was flawed and caused wrongful debt notices to 100,000s of people

• Between 2016–2019 of the 1,700 robodebt decision appeals, more than a third were overturned by the AAT.

• Government ignored multiple warnings from the AAT that robodebt may be unlawful → shows how AAT can inform gov’t of potential issues in policy implementation

• The government admitted robodebt was unlawful when it conceded in court that debts raised solely by averaging ATO income data were not valid under the Social Security Act, and that the debt notice against the test plaintiff had been improperly issued.

• It refunded repayments by scrapping the scheme, waiving the debts, and repaying money people had already paid, including interest and collection fees; by May 2020 it had announced refunds of about $721 million for around 470,000 debts

Judicial review

• focus on cabinet, ministry and public servants

• make legally binding rulings on the lawfulness and the constitutionality of government policies and activities

• independent courts

  • s71 imposes strict sop between federal judiciary and other two branches

  • Brandys case and strengthened sop

  • Section 72 of the Constitution protects Chapter 3 courts from interference by the executive.

types of actions that can be taken by courts + examples

• can issue prohibitions or injunctions to gov’t depts and agencies

• can issue writs and injunctions against public officials, including ministers

• s75 gives federal judiciary power to issue writs of mandamus (requiring gov’t official to/not carry out specific action obliged by law)

• Example:

• In AFX17 v Minister for Home Affairs (No 4) [2020] FCA 926, Federal Court Justice Geoffrey Flick ordered Minister for Home Affairs Peter Dutton to decide a temporary visa application for an Iranian man. The court issued a deadline for the minister to comply. Justice Flick said it was open to him to find
  Dutton in contempt of court if he did not comply with the court order and could jail him as a result.
  Dutton made a decision just before the deadline.

limitations

• adversarial method is costly, dependent on experts, complicated, time consuming and leaves parties with less control over the matter

• court can only decide lawfulness- not merit or fairness

• so court action is usually a last resort

judicial review of cabinet ministers

• government policies carried out using prerogative powers e.g. s61 powers like the nationhood of power, can be challenged in the High Court

• parliament grants government flexibility through delegated legislation and ministerial discretion e.g. each migration application is different, so the law must be applied according to the minister’s discretion

• home affairs ministers’ decisions are frequently subject to challenge in the AAT and courts

• cabinet policy can be reviewed and ruled unlawful e.g. Robodebt

examples

• pape and williams

• williams v commonwealth

• nades and priya

Pape v Commissioner of Taxation and the Commonwealth of Australia 2009

• Bryan Pape (lecturer &barrister) challenged validity of Rudd Gov’t’s economic stimulus package

• claiming the $900 tax bonus entitled to many Australians wasn’t supported by the taxation power provided under s51 (ii) and the payment hadn’t been appropriated from the consolidated revenue fund by law as required by s83 of the con.

• high court rejected the proposition that s81, establishing the consolidated revenue fund, conferred a spending power on the commonwealth, agreeing that power to spend commonwealth money DID need to be supported by a constitutional legislative head of power

• however the high court found in a majority decision that the power to spend can be found in s61 executive power, as the nationhood power was necessary to provide short term fiscal measures to assist in Australia’s recovery from the GFC

Williams v Commonwealth

• Ron Williams challenged the validity of Commonwealth funding for the National School Chaplaincy Program (NSCP).

• No legislation had been passed to establish or fund the NSCP. Instead, the Australian Government relied on its Section 61 executive prerogative powers to engage private services — such as the Scripture Union Queensland — to provide chaplains in public schools.

• In a 6:1 majority decision the High Court declared that executive power is not equivalent with Commonwealth legislative power, and that in most circumstances the executive requires legislation before it can enter into contracts with private parties and spend public money.

• The High Court’s decision cast doubt on the validity of a vast array of executive funded programs, amounting to somewhere between 5–10 per cent of Commonwealth Government spending + limiting the broad application of executive powers

Nades and Priya

Facts

• Nades and Priya, Sri Lankan Tamils who arrived in Australia by boat in 2012 and 2013 seeking asylum, settled in Biloela and raised two daughters born in Australia.

• After the Department of Home Affairs concluded that they did not meet the requirements for asylum, their visas expired in early 2018 and they were removed to detention.

• Although their deportation was initially set to proceed in August 2019 after unsuccessful appeals, the Federal Court issued an injunction mid-flight to halt the deportation, later extending it so that the family could remain in Australia while Tharunicaa’s asylum claim was considered.

• In April 2020, the Federal Court found that Tharunicaa had been denied procedural fairness because she had not been properly notified or given an opportunity to respond, requiring the Immigration Minister to properly determine whether she could apply for a visa

Principles

• Under the Migration Act, ministers possess broad personal powers to make discretionary decisions about visas and intervention, allowing them to respond to individual circumstances in a flexible way.

• However, this discretion is not absolute, as the Federal Court’s involvement demonstrated that executive action must still comply with legal requirements such as procedural fairness.

• The court’s willingness to issue an injunction preventing deportation while the matter was unresolved further shows how the judiciary can restrain executive power and protect individuals from irreversible harm.

methods of avoiding accountability

• outsource public services to private contractors, because private actors are not always subject to the same scrutiny as government departments.

• justified as improving efficiency and reducing costs through market competition

• can weaken transparency and make it harder for the public, parliament, and the media to hold decision-makers responsible.

• e.g. Australia’s offshore detention centres on Nauru, which are operated by private contractors on behalf of the government. Because these companies are motivated by profit, concerns have been raised that service delivery may prioritise cost-cutting over the welfare of asylum seekers and refugees.

• led to significant controversy over the treatment of detainees, including allegations of poor living conditions, mental harm, and human rights abuses.

• The issue has also drawn criticism from the international community and remains highly divisive within Australian politics.