Accountability of the Commonwealth Parliament (Booklet 14)

Define accountability

The requirement that public officials are directly and indirectly answerable to the people for their conduct.

Define governance

The norms and processes used to make decisions and implement policies in a democratic society.

What is open government?

The principle that the business of government should be made available for public scrutiny, supported by a free flow of information.

What is an election?

A process that enables eligible citizens to choose the representatives that sit in a legislature on their behalf.

What is a committee?

A cross-party panel of Members and/or Senators appointed by the Commonwealth Parliament to undertake specific tasks.

What is parliamentary privilege?

The legal protections and enhanced freedoms granted to Members of Parliament, which enable them to carry out their duties without fear of civil or criminal liability.

What is meant by parliamentary processes?

The steps taken to exercise the functions of the Commonwealth Parliament (e.g. legislative process, privileges committees, censure motions).

What are parliamentary procedures?

The formal rules that govern parliamentary proceedings, including the Standing Orders.

What is judicial review?

The power of a court to review whether legislation or executive action is lawful and consistent with the Constitution.

All public officials must act in…

the public interest and justify their decisions to the public.

Why did Dutton loose his seat in the 2025 Federal election?

“not personable… confrontational… ‘trumpian’ style of politics.”

Wanted to build nuclear power plants, his electorate didn’t. Wanted to cut public service jobs, lost the support of public servants in his electorate.

What happened in the seat of Bradfield in the 2025 election?

1st count = Lib won, 8 votes

recount = Independent won, 26 votes

What are the processes in place to ensure a recount of electoral votes follow electoral law?

Candidate-appointed scrutineers ensure the AEC representatives follow electoral law.

• a new count of all first preference votes

• a re-examination of all informal votes

• a complete recound of the two-candidate preferred count

• conduct of the full distribution of preference again

How many seats are in the Senate? What is the term length and election frequency? What electoral system do they use?

• 76 seats

• 6 year terms, elections every 3 years

• Proportional representation, STV/PR

  • preference candidates, once candidate meets quota (14%) = elected

  • multi-member electorate

How many seats are in the House of Represenatives? What is the term length and election frequency? What electoral system do they use?

• 150 seats

• 3 year terms, elections every 3 years

• Preferential voting

  • preference candidates from most wanted to least

  • single member electorate

  • majoritarian

How does the Australian electoral system provide a high degree of accountability?

• elections are regular (s7 and s28)

• Commonwealth Electoral Act (conduct of elections = fairness, transparency)

• AEC (independent)

• Compulsory voting (high participation)

Which section of the Constitution outlines the grounds for disqualifying individuals from serving in the Parliament?

s44 - dual citizenship (Citizenship Seven cases 2017), treason, indictable offences, bankrupt, conflict of interest (declartion of interests = avoid this situation)

How do single member electorates in the House of Representatives support accountability?

Easy for voters to identify and hold their elected MP responsible for how they represented their electorate (voted in on majority).

e.g.

• Dickson 2025 - Dutton (Lib) lost to France (Independent)

• Curtain 2022 - Hammond (Lib) lost to Chaney (Independent)

What did the TEAL independents campaign on?

• climate action

• accountability

• transparency

How has the increase in third-party votes in the House of Representatives supported accountability?

• ~33.6% of first-preference votes were given to minor parties/independents

  • MP’s need to respond or risk losing seats (increases accountability)

How do independents/minor parties win seats in the House of Representatives?

Finish second on the vote count, limit major party to 45% of the vote, obtain absolute majority through preferences.

e.g.

Curtian 2022 - Chaney won 29.5% primary vote + preferences

Dickson 2025 - France won 33.6% primary vote + preferences

How was “putting sitting member last campaigns” effective in Dickson 2025?

Australian Council of Trade Unions urged voters to ‘put Dutton last.’

• he lost

How do safe seats limit accountability in the House of Representatives?

• 60% of vote = safe seat

• regardless of conduct, they rely on a large margin, the popularity of their party to defeat potential challengers

e.g. New England 2022 & 2025 - Barnaby Joyce won 52% P\primary vote (as a member of the Nationals).

How do winners bonus limit accountability in the House of Representatives?

• Preferential voting favours major parties

• winners bonus amplifies small marority into larger majority

• drop in primary vote ≠ loss of seats

e.g. Albanese Labor government re-elected, 94 seats, only had 35% primary vote.

How does proportionality and party accountability support accountability in the Senate?

• majority not required, therefore reflects voters preferences more accurately

• Increase/decrease in Senate seats for a party = public support changes

How do below-the-line campaigns support accountability in the Senate?

• voters can scrutinise individual candidates by voting below-the-line

• encourages candidates to be responsive to the public, not relying on their party’s brand

e.g.

Lisa Singh (tas) won in 2016, even though ALP put her very low on list

David Pocock (ACT) wins by encouraging voters to vote below the line (not anymore, technically has a party for above the line voting)

How are Senators for the territories more accountable than State Senators?

• contest seat every 3 years (3 year terms)

• Must recieve higher quota (33% all votes)

e.g. 2022, 2025 - David Pocock (ACT)

How does above-the-line voting limit accountability in the Senate?

• most voters vote-above the line = choose party rather than individual

• parties control order of candidates on ballot

  • Senators may feel more accountable to party leaders than to the public

e.g. 2025 - 6.3% of ballot papers were completed and counted below the line

How do 6 year Senate terms limit accountability?

• delay electoral consequences, making it harder for voters to hold individual Senators accountable in the short term

e.g.

Paymen resigned from ALP and formed Australia’s Voice (2022)

Cox moved from Greens to ALP, Price from Nationals to LPA (2025)

How do multi-member electorate limit accountability in the Senate?

Low quotas for winning seats (14% of the vote).

• Senators can feel little need to be responsive to constituents or be publicly visible

• constitutional malapportionment - some Senators accountable to less voters

  • e.g. Lambie quota is 53,000 votes (TAS), NSW is 712,000 votes

How does s49 of the Commonwealth Constitution empower the Parliament?

Empowers the Parliament to declare the ‘powers, privileges, and immunities’ of its members and committees.

As a result of s49 of Constitution, what law did the Parliament create?

the Parliamentary Privileges Act 1987

What is s16 of the Parliamentary Privileges Act 1987?

Courts cannot question, or rely on, statements made by MP’s during Parliamentary proceedings. This applied to ‘all words spoken and acts done in the course of, or for the purpose of, or incidental to, the transacting of the business of a House or a committee.’

Why does parliamentary privilege exist?

Enables MP’s to speak freely, facilitating greater scrutiny/transparency without fear of legal consequences.

Why is parliamentary privilege controversial?

• undermines rule of law

• undermines equality of law

What did Derryn Hinch do in 2016 witht the support of parliamentary privilege?

Used parliamentary privilege to legally name protected sex offenders (he cannot face court prosection by doing it this way).

If the courts cannot hold MP’s accountable due to parliamentary privilege, who does hold them accountable?

Parliament does, through:

• The House Standing Committee of Privileges

• The Senate Standing Committee of Privileges

What doe the House and Senate Committe of Privileges do?

Inquire into, and report on, compaints of a breach of privilege, referred to it by the House/Senate. They make recommendations: reprimand, impose penalities, allow a right of reply.

What is the most significant penalty an MP can face for misuing parliamentary privilege?

Imprisonment for a period not exceeding 6 months and fines not exceeding $5000

e.g. Fitzpatrick and Browne in 1955

What happened to Hugh Mahon in 1920?

ALP member expelled from the House of Representatives.

This is no longer possible (cannot expell members).

How does the House and Senate Privileges Committees keep the Commonwealth Parliament accountable?

Ensures transparency - open government.

• findings are accessible to the public

• investigation open to public

How does the House and Senate Privileges Committees undermine the accountability of the Commonwealth Parliament?

Weak accountability

• Composed of MP’s (interal)

  • therefore, independence and impartiality overlooked

House can block

• Government can ensure own members in House aren’t investigated

In 2023, the Senate Privileges Committee concluded an investigation on Senator Lidia Thorpe, explain.

• Thorpe was serving Parliamentary Joint Committee on Law enforcement while having a relationsip with Dean Martin (former president of the Rebels outlaw motorcyle gang)

  • bikie groups were a focus for the Committee

• failed to disclose relationship, referred herself to the Privileges Committee

  • found, should have disclosed relationship to acoid perception of a conflict of interest, no evidence she had disclosed informations or that her actions amounted to contempt

  • no formal sanctions imposed

How did Christian Porter in 2023 undermine the House Privileges Committee’s role of accountability?

• Labor Opposition moved to refer matter to House Privileges Committee

  • Morrison Government blocked referral

What is s50 of the Constitution?

Gives each House of Parliament the power to establish its own Standing Orders - rules for conducting its business and proceedings.

How are Standing Orders enforced in the Parliament?

By the Presiding Officers (Speaker - HoR, President of the Senate).

What is Standing Order 94(a)?

Speaker of the House of Representatives can direct a disorderly member to leave the debate for one hour (cannot enter House or paricipate (including voting)).

What is Standing Order 94(b)?

Speaker can name a Member of the House of Representatives, which enables the House to vote on a morion which if carried, will result in the suspension of a member for 24 hours, or longer if this is a repeat offence.

Senate President does have equivalent power under Senate Standing Order 203 and 204.

Under Standing Order 203, what happened to Senator Lidia Thorpe in 2024?

Penny Wong, leader of Government in Senate, moved motion to suspend Thorpe for 24 hours, motion passed (45-11).

• actions ‘highly disorderly’ (ripped up motion and threw it at Senator Hanson - referred to Senator Payman’s eligibility)

Under Standing Order 94(a) and 94(b), what happened to Julian Hill in 2021?

Removed from House for continued yelling and criticising ot he government’s visa delays. Speaker later named Member for Bruce under 94(b), allowing house to determine further disciplinary action. House suspended Hill (25-14).

What is the role of the Speaker?

Facilitate debate and enforece Standing Orders. Cannot debate and only votes to break ties.

How was Tony Smith an example of a neutral Speaker?

May 2021:

• reprimanded PM Morrison for strayin from the topic of a question regarding the government’s handling of quarantine and the COVID-18 vaccination program

• also reprimanded Treasurer Frydenberg and Health Minister Hunt for not adhering to Parliamentary rules during responses

• ejected several MP’s from government and oppositon for disorderly conduct

How was Bronwyn Bishop an example of a biased Speaker?

Between 2013-2015, she had ejected 400 MP’s for one hour under Standing Order 94(a), of which 393 were Opposition members.

What is one weakeness in the Speakers role for ensuring accountability?

Via a mority vote, Standing ORders can be suspended, eliminating the Speakers role.

What is a censure motion?

A motion that can be passed by the House of Representatives or Senate to express disapproval for action or statement by an MP. Does not have any actual substantive effect.

May trigger other accountability measures (e.g. Standing Order 94(b))

Why was Scott Morrison censured in 2022?

HoR censured former PM for secret ministerial portfolio appointments. Carried no legal consequence, BUT, it was a formal expression of Parliamentary condemnation.

Why was Lidia Thorpe censured in 2024?

Censured for “disrespectful and disruptive” behaviour (46-12).

• staged a voal protest against Kind Charles III - “You are not my King… This is not your land”

Why was Ralph Babet censured in 2024?

Censured for posting homophobic and racist slurs on social media. They were “deeply offensive, divisive and hateful,” and had “no place in our national discourse or in the Parliament of Australia.”

What is the Order of Business?

A public document that outlines the schedule for each parliamentary sitting day, including when specific items will occur (quesion time, debates, etc.).

What determines the structure of the Order of Business?

Structure is set by the Standing Orders, can be amended by a majority vote

What is the purpose of the Order of Business?

Ensures Parliment must address key issues, debate legislation, and provide oppurtunities for scrutiny and representation. (i.e. fullfill legislative, representatives, responsibility functions)

What is a Hansard?

The official, public transcript of parliamentary debates, produced by non-government staff to ensure transparency and public access to what is said in Parliament.

Exludes Cabinet meetings - kept confidential for 30 years under the Archives Act 1983 (Cabinet secrecy).

How does Hansard hold MP’s accountable?

Provides a permanent record of their statements and conduct. BUT, do not provide accountability alone, must be used alongside other mechanisms (censure motions, media scrutiny, committee inquiries, etc.).

What are the roles of the HCA?

• Constitutional interpretation (s76(i); Judiciary Act 1903)

• Judicial review (s75(iii), (v))

  • (interpret validity of legislation)

• sit as the court of Disputed Returns (Cth Electoral Act 1918)

  • (maintain integrity of electoral system)

What are the power of the HCA?

• uphold separation of powers

  • (determine scope of legislative power)

What is ultra vires?

Beyond the power

How does the judicial review holds Parliament accountable?

• Uphold the separation of powers

• protecting rights

• Court of Disputed Returns

Outline Roach v Electoral Commission [2007]

• Howard Government: Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004 (Cth)

  • Prisoners could not vote in federal elections

• HCA legislation ruled invalid under s7 and s24 (implied right to vote)

Protected implied right to vote.

Outline YBFZ v Minister for Immigration [2024]

• Albanese Government: Migration Amendment (Bridging Visa Conditions) Act 2023

  • ankle bracelts + curfew (mandatory)

• Ch. III judicial power = punishment, therefore invalid law

  • exceeds Parliaments power

Upheld S.O.P

EGH19 v Commonwealth of Australia [2026]

• Albanese Government: Migration Amendment Act 2024

  • monitoring conditions imposed by positive test (if found to be threat by Minister for Immigration)

• Ch.II judicial power = punishment, therefore invalid law

  • exceeds Parliament power

Upheld S.O.P

Outline Williams v Commonwealth [2014] - Williams No. 2

• legislation to fund National Schools Chapliancy Program relying on the Welfare Power s51(xxiiiA) = invalid

• upheld S.O.P

Exceeded Parliaments power (not supported by a head of power)

Outline Citizenship Seven cases (2017)

HCA - Court of Disputed Returns (determine eligibility of MPs to sit in Parliament

• HCA found 5 MPs ineligble for Parliament - s44(i) (dual citizens)

• caused other MPs to resign as they realised

• total 15 MPs sitting in Parliament fell foul of s44(i)

• led to numerous Senate vacancies and by-elections