The Accountability of the Executive and Public Servants

Executive

an arm of government that carries out the law. It is drawn from and accountable to parliament.

Public servants

people employed in govt depts under the Public Service Act 1999. They have the role to

• implement govt policy and decisions

• provide policy advice to ministers (political advisors)

• work with delegated Legislation

Public Service

The Australian Public Service includes govt depts and agencies that implement policy decision of government , under the control of minister.

Define how the executive is held accountable through Westmininster conventions

Through WC and practice, Govt is held accountable to parliament and thus, the people. Individual and Collective ministerial responsibility are the two most important conventions in holding the Cabinet and Ministry accountable.

Define the convention of individual ministerial responsibility

By convention a minister who is incompetent or dishonest can be censured by Parliament and forced to resign

Evaluate the effectiveness of a censure motion in holding individual ministerial responsibility in HoR

-Executive dominance allows govt party’s to defeat censure motions against minister

+while they often fail, the PM will seek to remove an underperforming minister creating an expectation of ministerial conduct

Evaluate the effectiveness of a censure motion in holding individual ministerial responsibility in Senate

-doesn’t hav the same effect as in HoR e.g In 2015, Senator Brandis survived a censure motion
+easier to pass bc of the lack of government majority

define collective ministerial responsibility

by convention, if executive cant command the confidence of the House, it must resign.

Evaluate the effectiveness of the a vote of no confidence in holding collective ministerial responsibility in the HoR

-this motion usually fails bc of executive dominance
+when moving a motion, the Opp has the opportunity to highlight problems in govt

define how the executive is held accountable through Senate Estimates Committee

3 times a year, the Senate Estimate Committee conducts estimate hearings into the government budget and its future spending plans, holding the Cabinet, Ministers and public servants accountable. During this time, it questions public servants, ministers and their proxies about govt spending.

Evaluate the effectiveness of the Senate Estimates Committee in holding the executive accountable

During Senate Estimates hearings into the 2019 Sports Grants Program, senators questioned ministers and public servants about the politically biased allocation of public funds by Sports Minister Bridget McKenzie
= allowed for parliamentary scrutiny of executive decision-making.
-Senators can use process to push their party agenda instead of effective scrutiny
+can bring scrutiny to spending plan, forcing them justify their decision or make changes

Part 2

For example, in the 2019 estimate hearings, Labour Senator Penny Wong questioned Senator Mathias Cormann who represented Mckenzie, preventing her from holding the minister into account directly.
-Committee can can only question delegated Senators representing the minister
+As the govt rarely commands a majority in the Senate, Senate Estimates committees often include opposition and crossbench senators who can effectively scrutinise

Define how the Standing Committee for the Scrutiny of Delegated Legislation holds the exec accountable

This Senate Committee performs parliamentary oversight of Subordinate Legislation to preserve the Separation of Powers. It can recommend disallowances of SL, encouraging the Senate to pass disallowance motions.

Evaluate the effectiveness of the Senate Standing Committee of the Scrutiny of Delegated Legislation in holding exec accountable

-does not have the power to invalidate Delegated Legislation itself

+consists of 3 govt senators, 3 non govt senators, making it an impartial body

define how the executive is held accountable through judicial review

the courts’ review of govt decision and policies can result it being declared unlawful or unconstitutional, holding ministers, the Cabinet accountable for their govt or administrative decisions

Evaluate the effectiveness of judicial review in holding the executive accountable,

• s71 vests judicial power in the HC, imposing the SoP and s72 establishes the independence of the judiciary, making it a superior force in holding govt accountable

Define and Evaluate how public service and ministers are held acc through writs of mandamus

s75(v) gives the federal judiciary the power to issue writs of mandamus. It is a court order requiring a govt official to carry out / not carry a specific action that the official is obliged to do by law.
=demonstrates rule of law as minister and public servants are held acc by courts for the unlawfulness of actions, even when they are part of govt

Define how and Evaluate how public servants are held acc through injunctions

injunctions are writs that prevent the specific actions of govt agencies and departments.
In Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016), the Federal Court issued an injunction preventing the Department of Immigration from transferring the plaintiff back to Nauru, enabling her to access safe medical treatment in Australia.

Define and evaluate how Cabinet ministers are held accountable through judicial review

-Courts can review ministerial discretion of statutes
The Gillard Government's "Malaysia Solution" involved the Minister for Immigration declaring Malaysia a suitable country to which asylum seekers could be transferred under the Migration Act 1958 (Cth). In Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011), The HC held that the Minister's declaration was invalid because Malaysia did not meet the statutory requirements set out in the Act.
=judicial review effectively holds ministers accountable by ensuring powers are exercised within the limits Parliament intended

Define and evaluate how cabinet policy can be held accountable through judicial review

-Govt policies can be rules as unlawful
In Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011), the HC declared the Gillard Govt’s ‘Malaysia Solution’ unlawful because Malaysia did not meet the statutory requirements under the Migration Act (1958) (Cth) to receive asylum seekers. The Court prevented the executive from implementing the policy.
=shows HC can invalidate govt decision taken under prerogative powers where it exceeds constitutional authority
- acc limited bc the Court an only review executive decision when a legal challenge is brought before it,

Define how the Auditor General holds the executive accountable

an independent officer of parliament recommended by the JCPAA, the PM and appointed by the GG. acts as head of the ANAO (Australian National Audits Office).
The ANAO supports the AG in providing Parl with an independent assessment of selected areas of public administration
-Conducts audits on the govt agencies and agencies’ operations, finances and compliance with law

Evaluate the effectiveness of the AG in holding the executive accountable

Today, the AG investigates the proper administration of govt programs like ministerial discretion of grants
In 2020, AG Grant Hehir conducted a financial audit into the Sports Grants Program and discovered that Sports Minister Bridget Mckenzie had allocated funds in a politically biased manner. The report exposed executive misconduct and contributed to Mckenzie’s resignation.
=demonstrates how AG’s financial audit ensure the executive uses public funds appropriately

Define and evaluate how cabinet policy can be held accountable through judicial review

-Courts can review cabinet policy and decision. Govt policies carried using prerogative powers vested from s61, can be challenged.
In NZYQ v Minister for Immigration, the HC found that the government’s indefinite immigration detention was invalid as an administration of the Migration Act (1958) (Cth) was unlawful as there was ‘no foreseeable prospect of removal'.’ Furthermore, it was found to have been unconstitutional as it breached Ch 3, establishing the Separation of Powers as the indefinite detention was found to be punitive, an exclusive judicial role.

Strengths and weaknesses of Auditor-General

+ AGs are independent officers enhancing the credibility of their audits
-govt is not legally required to implement recommendations

Define how the Administrative Appeals Tribunal keeps the executive accountable

Tribunals are independent institutions with authority to adjudicate and determine claims in a less formal manner than courts. The AAT reviews decisions made by govt departments or agencies. However in 2024, the Administrative Reviews Tribunal (ART) replaced the AAT.
-The Albanese govt’s reform aimed to restore public confidence as the Morrison Govt’s appointment of Tribunal members were politically biased, undermining independence.

Evaluate the effectiveness of the ART in holding the Cabinet accountable

In XCorps v Esafety Commissioner (2024) , the ART set aside the removal notice of the Esafety Commisioner as it found that an activist’s post did not satify the statutory criteria of ‘cyber abuse material’ under the Online Safety Act 2021.
=highlights how ART holds executive acc by independently reviewing and overturning administrative decisions that are not supported by the law
-lack of legal precedent as two similar cases can be treated differently