Notes on Foundations of Public and Criminal Law – Week 4: Accountability of the Executive
Outline
Refresher – The Executive
SOP and Accountability of the Executive
Accountability within the Executive
Ombudsman
Tribunals
Anti-Corruption Agencies
Royal Commissions and Inquiries
Who is the executive?
Commonwealth:
The King
The Governor General
The cabinet (the Prime Minister and the Ministers)
The public service (Federal government departments and agencies)
The Federal Police and armed forces
State:
The King
The Governor
The cabinet (the Premier and the State Ministers)
The public service (State government departments and agencies)
The State police
Why focus on Executive accountability?
Proverb: “It’s hard to put a leash on a dog once you’ve put a crown on its head.”
Highlights the need for robust accountability mechanisms to restrain executive power.
Separation of Powers
Legislature vs. Executive vs. Judiciary
Diagrammatic representation:
Legislature
Executive
Judiciary
Mechanisms of Accountability
Complaint to local member
Parliamentary Scrutiny
Media (the fourth estate)
Internal review – informal or formal
External merits review – AAT, QCAT
Judicial review
Freedom of Information (FOI)
Royal Commissions, Inquiries
Integrity Agencies:
Ombudsman
Information Commissioner, Privacy Commissioner
Anti-Corruption agencies
Human rights agencies
Parliamentarian Scrutiny
Current Parliament
Current Committees
Current public inquiries
Open public Submissions
Upcoming public hearings
Administrative Review Tribunal (ART) / Administrative Appeals Tribunal (AAT)
AAT is one of the key mechanisms for government accountability and transparency
Reviews federal government decisions made under more than 400 Acts (e.g., Centrelink, NDIS, Migration and Refugee, Veteran’s Entitlements)
Facilitates Access to Justice by conducting merits review of government decisions
AAT – What now? (Senate Committee, 2022):
Emphasises importance, independence, and appointments (previously 2019)
ART (Administrative Review Tribunal)
Abolition of major reasons for AAT collapse; reforms introduced (Part 5 – Clauses 121–131)
Matters of significance; independent review; Administrative Review Council reinstated
Independent review after 3 or 5 years inserted at 3rd reading stage
Queensland Civil and Administrative Tribunal (QCAT)
Introduced on 1 December 2009 as a “super tribunal” absorbing 23 existing tribunals; covers small claims up to
Hears around matters per year
Structure:
President: Supreme Court judge
Deputy President: District Court judge
Members: appointed for 2 years; must be legal practitioners of at least 6 years or have specialised knowledge/experience
Jurisdictions:
Original jurisdiction
Review jurisdiction of government administrative decisions
Appeals jurisdiction
Royal Commissions and Inquiries
Royal Commissions are the highest form of inquiry on matters of public importance
Established to acquire information within legislative powers; also known as “Commissions of Inquiry”, “Public Inquiries”, and “Judicial Inquiries”
PURPOSE:
Incident-based investigations and fact-finding to inform policy or advise on government policy
A Royal Commission is not a court; only courts can exercise judicial power and determine legal rights/obligations
If the commissioner reports that a person contravened a law, the report carries no legal consequence by itself
Findings of wrongdoing can lead to legal consequences via other processes
Royal Commission recommendations are often used to justify changes to the law
Process:
Largely at the Commissioner's discretion
Commissioner and Counsel Assisting determine matters and investigation process
Not bound by rules of evidence; standard of proof is flexible
Public hearings or private sittings
Self-incrimination protections do not apply to those giving evidence to a Royal Commission
Upon conclusion, findings of unlawful conduct or recommendations for prosecutions can be made
Recommendations are often used to justify changes to the law
Effectiveness:
Political decisions to hold Royal Commissions
Terms of reference can be broad or outcome-driven
Costly (tens of millions 69.4 ext{ million} ext{ (revised); } 67.2 ext{ million original}313 ext{ FTE}; 338 ext{ employed}117 ext{ days of hearings; } 103 ext{ witnesses examined}221 ext{ law enforcement crime intelligence disclosures}4.296 ext{ million}3{,}686 ext{ complaints of suspected corruption}1 ext{ person charged with 2 criminal offences}9 ext{ days of hearings with 14 witnesses}7 ext{ recommendations for disciplinary action (3 people)}35 ext{ corruption prevention recommendations}
Special powers:
Coercive powers: can compel witnesses to attend and give evidence
Overrides right to silence and self-incrimination in certain contexts
Power to conduct public inquiries
Not a court; cannot determine guilt or discipline; may refer matters to ODPP, QCAT, or a CEO for disciplinary action
Prosecutions/recommendations may not always be followed
Notable context: Fitzgerald Inquiry cited as an example of the scope and potential of inquiries
National Anti-Corruption Commission (NACC)
Commenced operation on 1 July 2023
Mandate: investigate and report on serious or systemic corrupt conduct in the Australian public sector
Capabilities: can investigate ministers, government agencies, public officials, and those who seek to corrupt them
Robodebt Case Study
Timeline highlighting accountability processes:
2017 – Commonwealth Ombudsman investigation
2017–2018 – Administrative Appeals Tribunal (AAT) reviews
2019 – Federal Court decision in Amato v Commonwealth
2023 – Royal Commission
2024 – National Anti-Corruption Commission
Robodebt income averaging – example (illustrative data)
FN 1: Earned \$0, Payment \$1000
FN 2: Earned \$600, Payment \$400
FN 3: Earned \$400, Payment \$600
FN 4: Earned \$1500, Payment \$0
FN 5: Earned \$800, Payment \$200
Total earned: \$3300; total payment: \$2200
Assumed fortnightly payment: \$1000
The Robodebt sequence demonstrates multi-institutional accountability pathways across Ombudsman, AAT, the Federal Court, a Royal Commission, and NACC
Freedom of Information (FOI)
Why FOI is important: right to request access to documents from Australian Government ministers and most agencies under the FOI Act 1982
What is covered by FOI:
Government documents including policy information and administrative decisions
Documents held by government unless exempt or conditionally exempt or publicly accessible under other arrangements
Who is covered: most Australian Government agencies
How to request access:
Best practice: request the document from the relevant minister or agency; if unsuccessful, use formal request processes
Exempt documents (S4(1); Division 2 of Part IV; s7 exemptions; cabinet and security related exemptions):
National security (s33)
Cabinet documents (s34) with expansion to include submissions to cabinet if dominant purpose is for cabinet consideration
Enforcement of law and protection of public safety (s37)
Secrecy provisions (s38)
Legal Professional privilege (s42)
Material obtained in confidence (s45)
Contempt of Parliament or court (s46)
Trade secrets or commercially valuable information (s47)
Electoral rolls (s47A)
Conditionally exempt documents (examples):
Documents given in confidence or likely to harm Commonwealth-State relations (s47B)
Deliberative process documents (s47C)
Financial or property interests of the Commonwealth (s47D)
Operations of agencies (s47E)
Personal privacy (s47F)
Business or professional affairs (s47G)
Research (s47H)
The economy (s47J)
Office of the Information Commissioner (QI) – Queensland
Right to Information aims:
Make more information available
Provide equal access to information across sectors
Protect individuals’ privacy
Disclosure rule: information must be disclosed unless there is good reason not to; government cannot withhold simply for political embarrassment or loss of public confidence
Appeals:
Decisions of the Information Commissioner may be appealed on a question of law to QCAT
Judicial review to the Supreme Court of Queensland
How to access documents: refer to The Right to Information Act 2009 (Qld) and The Information Privacy Act 2009 (Qld)
Examples of Accountability Interfaces
Administrative Appeals Tribunal (AAT) case example:
Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524
Tribunal: Deputy President S Boyle
Issue: revocation of mandatory cancellation of a temporary visa on character grounds after a criminal sentence
AAT outcome: revoked the cancellation (substituted decision to revoke) based on considerations under Ministerial Direction no. 79
Primary considerations under Ministerial Direction no. 79: protecting the community, best interests of minor children, and expectations of the community
Other considerations: international non-refoulement obligations, strength/nature/length of ties to Australia
Facts: applicant arrived 2011 as a 20-year-old with a criminal history; rehabilitation prospects highlighted; AAT found risk of reoffending was low and outweighed cons
RTI case – Department of Environment & Resource Management:
Applicant sought planning documents for levee bank construction
An attachment was not provided; Department claimed it could not locate attachment due to storage limitations
OIC involvement confirmed an attachment existed and sought view of a council officer; the council provided the attachment and consented to release
Outcome: external review resolution based on the additional attachment
RTI case – Queensland Health:
Applicant sought a neuropsychology report for a husband with memory loss; full report vs. summary
Queensland Health initially disclosed only a summary; argued raw data risked misinterpretation and patient privacy concerns
Applicant (psychologist) argued full disclosure was necessary; external review facilitated reconsideration
Queensland Health released the complete neuropsychology report; external review resolved accordingly
Ombudsman – Queensland Case Examples
Prison overcrowding and other matters (Public report, February 2024)
Focus: Maryborough Correctional Centre; general prison overcrowding issues since 2014-15; impacts on officers, prisoners, infrastructure
Responses included staffing increases, additional cells, bunk beds, and safety initiatives
Recommendations included: expand cells, focus on workplace safety, address staffing, improve services and infrastructure, ensure transparency of prisoner numbers, special remand prisoner considerations, and continued monitoring under IDS Act 2022
Treatment of families with disabilities – training review (Anti-Discrimination Act + human rights)
Apology for gender identity-related discrimination by paramedics (Early intervention)
Human Rights Case Examples (Illustrative)
Treatment of family with disabilities: four family members with disabilities alleged discriminatory treatment on a public bus; outcomes included apologies, compensation, and staff training adjustments
Gender identity discrimination by paramedics: transgender woman; ambulance staff apologized and provided compensation; staff participated in discrimination training
Independent Commission Against Corruption (ICAC) – NSW
Notable political accountability: cases such as Gladys Berejiklian reflect the impact of NSW corruption watchdogs on political careers
Contextual sympathy: coverage of political scalps and accountability across NSW corruption enforcement
Case Study: Robodebt – Recap and Accountability Trail
Timeline overview (as above under Robodebt)
Illustrative financial mechanism: income averaging; impact on payment obligations and calculation of debts
Significance: demonstrates cascading oversight and accountability mechanisms across Ombudsman, AAT, Federal Court, Royal Commission, and NACC
Next week
Topics: Public international law
Written assessment discussion
Key takeaways
Executive accountability operates via a multilayered system including Parliament, tribunals, ombudsmen, anti-corruption bodies, integrity agencies, and inquiries
Royal Commissions provide powerful but expensive, non-court investigations with broad policy impact
FOI and Right to Information laws enable transparency and public scrutiny, with clearly defined exemptions
Queensland-specific institutions (CCC, QHRC, Ombudsman) illustrate the diversification of accountability tools at the state level
Case law examples (AAT, RTI reviews) illustrate the practical application of accountability mechanisms in individual decisions
Important numerical references to remember:
QCAT small claims cap: 25{,}00069.43133381171034.2963{,}68693520172018201920232024s33s34s37s42s47$$, etc.