Discussion paper on reform of government accountability in Australia

How fundamental democratic principles are being ignored
Is Freedom of Information now Freedom from Information?
How ministers can be made accountable
Simple, effective reforms
Updating the Prime Minister’s Guide

BACKGROUND

Australian citizens are increasingly denied effective democratic control over action taken on their behalf by governments of all political persuasions at Commonwealth, State and Territory levels. Governments hold office only through the democratic electoral process and the powers that governments exercise are delegated democratic authority. Yet it appears to many much as if they enjoy the discredited divine right of kings. Information is denied, processes are manipulated and accountability is deliberately frustrated.

Ministerial accountability fails as governments seize and hold political advantage, putting partisan interests ahead of the democratic rights of citizens and their entitlement to be treated with integrity, dignity and respect.

Some ministers claim that they cannot be held personally responsible for the acts and omissions of others who are involved in the administration of their portfolios because they did not know when they should have known and those directly answerable to them did know but did not tell them. They are not told because of a culture that allows information be withheld so that the minister can say “I did not know”. Effectively, personal responsibility is denied. “Bad government is the inevitable result of a lack of accountability”[1] and fertile ground is prepared for corruption.

Freedom of Information legislation is stretched to breaking point as many governments resort to delay, manipulation and court processes to defer or preferably prevent access to public information that they believe may affect voter support. This information belongs to the public. It is their votes which empower the executive to act and their taxes that provide the resources that are then used both to create information and to deny its availability in the public domain.

Many ministers can evade answering parliamentary questions, and make a mockery of question time. They use debating artifices to at best ignore the question and at worst to turn requests for information into abusive, partisan attacks on political opponents.

The Senate, which until recently was a major instrument of accountability, has been quickly rendered impotent by the rare election of a Government majority that makes impotency possible.

This discussion paper canvasses a range of reforms and revisions affecting the accountability of ministers and governments to Parliament and the citizens.

Government accountability would be cemented into law by a set of principles to be adopted through ordinary legislation in the first instance, but ultimately entrenched as part of the Constitution.

Complementing that, a series of modest but significant updates are suggested to the code applying to Commonwealth ministerial responsibility, published as “A Guide on Key Elements of Ministerial Responsibility” by Prime Minister John Howard in 1998 (referred to as the “Guide” in this paper). These build on the code and propose reforms to take account of:

§ experience of the Guide in action;

§ developments in the operation of Australian Government and Parliament since 1998; and

§ policies and practices in other jurisdictions.

The Guide is reproduced, with comments and suggested amendments intended to improve the operation and outcomes of ministerial responsibility.

Collectively, the proposals we put forward offer the most comprehensive, considered and effective reforms yet made to rescue the accountability of government to Australian citizens, supporting those politicians, public servants and advisers who seek to uphold Australia’s democratic traditions with clear statements of the principles and practices required. We welcome debate and comment on them.

Reforms affecting the Executive

The principles of ministerial responsibility are not stated in formal, authoritative statutory documents. Incorporation of the fundamental principles of ministerial answerability in legislation would have enormous symbolic weight. We propose that the principles be adopted in a declaratory, non-justiciable legislative instrument, stating that:

· ministers are answerable for all acts and omissions of persons and organisations acting under prerogative, legislative or contractual authority assigned to them;

· ministers are held personally culpable for their own acts and omissions and for those of:

§ their heads of department and their personal staff, and

§ others in which they have participated or of which they were aware or should have been aware;

· in determining whether a minister is personally culpable, ignorance of a matter does not excuse the acts of omissions of a minister where the minister should have known or should have ensured the matter was drawn to the minister’s personal attention. Without limiting the circumstances in which ministers should have known of any matter, they are deemed to have the knowledge of their heads of department and others who report directly to them and all members of their personal staff;

· in discharging their responsibilities, ministers are obliged to respond to any questions or other matters raised in parliament by:

· redirecting the question to the relevant minister;

· providing all relevant information;

· providing full explanations;

· taking any necessary remedial action;

· accepting personal culpability; or,

· resignation*;

as appropriate according to the circumstances of the case;

· Ministers shall provide answers to Parliamentary Questions which are direct and relevant; and

· freedom of information (FOI) requires that there be expeditious access to public records in all but specified exceptional circumstances where the public interest requires non-disclosure (e.g. genuine risk to the administration of justice or to national security).

These principles should also be reflected in the Guide, which should be amended accordingly at the earliest possible opportunity. It is not necessary that updating of the Guide should await passage of the legislative instrument. However, a legislative instrument would add to the effectiveness of the Guide.

The establishment of a Parliamentary Standards Commissioner as proposed in this Discussion Paper would also greatly strengthen the effectiveness of the Guide.
Freedom of Information

Important documentation has been shielded from disclosure by inappropriate use of the exemption for Cabinet documents under freedom of information legislation (FOI). This misuse has been possible because the present exemption for Cabinet documents is cast too widely. We propose therefore that it be amended in accordance with the principles below.

A crucial component of the convention of collective ministerial responsibility is the ‘confidentiality rule’. This provides that the deliberations and decisions of Cabinet must remain secret. Without such a rule, Cabinet unanimity would be impossible to uphold. Further, it is in the nature of collective deliberation that competing views will be put, issues argued, compromises struck, minds changed and individual ministerial submissions accepted or rejected. Were confidentiality not to attach to such discussion, the views expressed in Cabinet may not be as open as they should be. The quality of debate in Cabinet, therefore, would suffer and so could the decisions made by it.

For these reasons it is generally accepted that the deliberations of Cabinet should remain secret. Cabinet papers therefore are regarded as confidential. However, to say that Cabinet papers should remain private begs one important question. That is, which papers generated at the highest levels of Government are properly designated as Cabinet papers?

The short answer to this question is that only those papers whose release may undermine the unanimity of Cabinet or which may jeopardise fundamental matters of public interest such as the administration of justice and national security, must remain confidential. Documents recording Cabinet decisions should also be protected since the proper forum for the announcement of such decisions is the Parliament and the timing of their announcement is a matter for the government.

It follows that not every document that goes to Cabinet is deserving of protection from disclosure. It cannot be sufficient to exempt a document that it is merely passed across the Cabinet table. Rather, a document must be such as to disclose either the deliberations of the Cabinet or its decisions to qualify for exclusion. So, for example, an attachment to a Cabinet document providing factual or statistical information to assist in Cabinet decision-making should not be exempt. This is because such raw material cannot, by definition, disclose Cabinet’s deliberations.

We propose, therefore, that only the following classes of document should be capable of exemption under freedom of information legislation:

A document that is an official record of any deliberation of the Cabinet.
A document that has been prepared by a Minister, or his or her staff, for the specific purpose of submission for consideration by Cabinet.
A document the disclosure of which would involve the disclosure of any deliberation of the Cabinet.
A document the disclosure of which would involve unacceptable risk to the public interest on a specified ground (e.g. the administration of justice, national security)

It follows that a document will not be an exempt document if:

The document contains factual, statistical, technical or scientific, including social scientific, material prepared for the purpose of consideration by Cabinet in making its decisions, after the decision to which that material relates has been made.
The document is a document considered by the Cabinet but has not been prepared specifically for that purpose.
Any document which has entered the public domain.

FOI ADMINISTRATION

It has been remarked frequently that Government departments seek to avoid their obligation to disclose documents under freedom of information legislation on the grounds that a request for documents is voluminous either in relation to the resources required to fulfil the request or the quantity of documents sought. Further, applicants may frequently be discouraged from applying for documents because the charges for access are too great. Sometimes applicants are further deterred by the excessive delay involved in the processing of requests.

In order to deal with these matters we propose that the Ombudsman be given jurisdiction to review disputes in each of these areas.

The Ombudsman should be authorised to mediate, investigate and report in disputes

o over the processing of voluminous requests at the request of either an applicant or an agency.

o over the level of charges imposed for processing freedom of information requests.

where an applicant complains that there has been an excessive delay in the processing of a request or where a request has not been processed within a designated statutory time limit.

Reforms to Parliament

The operations of parliament, especially each House in which the government has majority support, are severely biased in favour of the executive. The public interest and the right to know what in being done by government acting with the citizens’ democratic authority should prevail. Accordingly, we propose reforms whereby:

· a Parliamentary Standards Commissioner (see Appendix for UK model) is appointed with “own motion” powers to investigate any evidence reasonably suggesting that any member of parliament may have breached accepted standards of behaviour in his or her official capacity, including complaints of public falsehood, and report to the Parliament, with a recommendation that the matter be referred to the Privileges Committee if appropriate;

· ministers are to be required to be directly responsive, relevant, succinct and limited to the subject matter of the question in answering Questions Without Notice. This requires reforms to Standing Orders (Rules of Procedure) and rulings by Presiding Officers;

· conventions are established that Presiding Officers abandon participation in parliamentary party affairs and receive greater respect for the independence of their functions[2];

· Parliaments insists on their right as sovereign institutions to examine and investigate the actions of ministers’ personal staff and departmental officials; and

· Parliaments extend opportunities for public engagement in the scrutiny of parliamentary legislation and inquiries.

Each House should consider whether to establish a bi/multi-partisan presidium (similar to that common in Europe) to control the business program (bills, motions, etc).

Parliamentary Standards Commissioner

A Parliamentary Standards Commissioner should be appointed as an Independent Officer of the Parliament (similarly to the Victorian Auditor General and Ombudsman).[3] The Commissioner's main responsibilities would be:

· Overseeing the maintenance and monitoring the operation of the registers of members' and senators’ interests;

· Providing advice to each House about the provisions of the Guide to the Key Elements of Ministerial Accountability (Guide) and any code of conduct adopted by either House (code), whether existing or recommended to be introduced;

· Monitoring the operation of the Guide and each code and, where appropriate, proposing possible modifications to the Parliament.

· Providing advice on a confidential basis to individual ministers, members and senators and to each House about the interpretation of the Guide and any code;

· Preparing guidance and providing training for ministers, members and senators on matters of conduct, propriety and ethics;

Receiving and investigating complaints about ministers, members and senators who are allegedly in breach of the Guide and code;
Investigating evidence of possible breaches of the Guide or code by ministers, members and senators, on the Commissioner’s own motion;
Reporting to the Parliament, and thereby the public, upon:

1. compliance with the principles and spirit of the Guide and each code;

2. any failure (whether wholly, partly or in spirit) to comply with the provisions of the Guide and code;

3. the extent and seriousness of any failure to comply;

4. the responsibility of any person for such failure;

5. whether any matter should be referred to the Privileges Committee of the House of which the minister, member or senator is a member, or was at the time of the event(s) in question.

o In exercising the functions of the office, the Commissioner shall have the privilege of the Parliament i.e. investigations will enjoy the authority of the House of which the minister, member or senator is a member and reports shall have parliamentary privilege.

o The Commissioner would be appointed on the recommendation of an all-party Parliamentary Committee.

Proposals for updating of the

Guide to Key Elements of Ministerial Responsibility

Preface

In 1976, the Royal Commission on Australian Government Administration (the Coombs Commission) commented on the principles of Ministerial responsibility. It noted that

It is through ministers that the whole of the administration—departments, statutory bodies, and agencies of one kind and another—is responsible to the Parliament and thus, ultimately, to the people. Ministerial responsibility to the Parliament is a matter of constitutional convention rather than law. It is not tied to any authoritative text, or amenable to judicial interpretation or resolution. Because of its conventional character, the principles and values on which it rests may undergo change, and their very status as conventions be placed in doubt.[4]

The Commission went on to state that the traditional conceptions of ministerial responsibility had been called into question in recent times and that

…there is little evidence that a minister's responsibility is now seen as requiring him to bear the blame for all the faults and shortcomings of his public service subordinates, regardless of his own involvement, or to tender his resignation in every case where fault is found.[5]

It commented that

The evidence tends to suggest rather that while ministers continue to be held accountable to Parliament in the sense of being obliged to answer to it when Parliament so demands, and to indicate corrective action if that is called for, they themselves are not held culpable—and in c