LAWS1115 Lecture 10

Responsible Government and Parliamentary Oversight of the Executive

Assignment bleh.

• It’ll come back. One. Day. Hopefully one day never comes though :/
Federalism, executive power and ‘vertical fiscal imbalance’
• Commonewealth dominant in revenue raising etc. See last week’s notes.
Power to spend not unlimited: Pape’s case
• Power to spend not unlimited: Pape’s case
o Challenged $900 stimulus payment to every taxpayer, regardless of tax paid
o Powerful, rapid response to GFC economic crisis
o Not supported by s 51(ii) taxation power
o Lost, but cast doubt on breadth of direct power to spend
• High Court:
o Constitution s 61 ‘executive power’ – problem of national character and urgency
o Constitution ss 81, 83 ‘appropriations power’ – not sources of power to spend (merely regulate/require executive to draw money via some act of parliament)
 Previously judges had believed that appropriations power could be used on whatever government wanted; however in Pape’s case they believed it was not a power to legislate to do things, but required that the executive had to get their budget through parliament before they could spend that budget (regaining parliament and executive)
• Power to spend can seem unlimited: government advertising
o Combet’s case (‘WorkChoices advertising case’)
 Objected to Howard government spending $50,000,000 - $100,000,00 to advertise controversial policy WorkChoices even before Parliament had reviewed legislation – furthered power of business.
 Budget appropriations essentially a parliamentary/political matter
 Law had not been passed prior to campaign
o Government advertising
 Informational – public service?
 Implied freedom of political communication  representative government requires this
 Incumbency benefit – branding the executive/ministry?
• Aldons: ‘strict sense … give an account or explanation … to those empowered to obtain it’
• Evans: ‘ability to compel governments to account for their actions’
• Answerable – held to account
o Oversight – body with ability to seek answers or review decisions
o Some transparency – openness of process or reasons
o Consequences: sanctions or incentives
Classifying accountability mechanisms
Informal (Political) Accountability  Elections  Media/public opinion
Oversight Mechanisms  Parliamentary (eg. committee system)  Extra-parliamentary integrity bodies (eg. Ombudsman)
Formal (Legalistic) Accountability  Tribunals (eg. AAT)  Judicial review of administration
Responsible government and parliament
• The formal view
o Cane and McDonald
 Responsible government: ‘integration (as opposed to separation) of legislative and executive branches’
o Aldons
 19th C ideal:
• Responsible parliamentary government: ‘accountability of ministers or government as a whole to elected assembly’
• The practical tension (Aldons)
o Assumed relative independence of MPs from executive
o Strong Cabinet government however relies on party unity: responsible party government
 Parties as competitive brands
o House of reps: party government
o Senate: parliamentary government
Parliamentary oversight
• Cane and McDonald: ‘some respects parliaments … relatively ineffectual overseers of government activity [but] not impotent’.
Over legislation: ‘limited’
• Debates, perhaps inquiry into bill
• Delegated legislation – power to disallow legislative instruments
o Senate Scrutiny committee
o Too much delegated legislation to review all
Over administration
• General debate
• Question Time
o Without notice (political points)
o With notice (digging for detail)
• Committee inquiries
o Policy in bills
o ‘Estimates’ (expenditures)
o Specific executive action
o Oversight of non-judicial arms of integrity
• Grievances
o Specific or general constituency concerns
• Conventional sanctions
o Ministerial resignation for misleading Parliament
o Power to summon public servants, even Ministers staff, but not members of other House.
Parliament, accountability and outside bodies
• Why must PPL be so boring? Just ONE DUCK ANALOGY and I’d be listening eagerly :/
• Aldons (former Clerk of House of Reps):
o Focus on ‘what parliament can cope with in this day and age’
o Don’t ‘bemoan’ need for other bodies like ombudsman
o Remember ‘there can be too much accountability … perfect accountability would be very expensive and counter-productive’
 It would slow everything down
• Evans (former Clerk of Senate):
o ‘paradox’ – extra-parliamentary accountability bodies must be established by parliament and in some cases report to it
o Same parliament we bemoan as ‘degenerated’ by executive dominance
o Trend to establish powerful (eg. anti-corruption) and independent bodies in ‘stratosphere’
o ‘Swamp of politics’ not completely avoidable
o ‘Accountability is essentially a political process’
o Outside bodies need ‘politics’ (public exposure, support) to be successful
Executive accountability and responsible government: two case studies
• Murray-Darling Basin Authority
o A great river system: decades of decline
o Competitive Federalism at work?
o Political accountability at work?
o Independent Executive Agency/expert
o Political accountability remains with Federal Government to implement it in part or whole
• Climate Change: pricing carbon
o Executive – like any organisation – usually deliberates in private.
o Governing party + bureaucrats.
o Consult selectively.
o Subject to Freedom of Information laws.
o Parliamentary committees deliberate in public; invite anyone to submit.
o Multi-party committees.
o PM Gillard’s hybrid Climate Change Committee:
o ALP, Greens, Independent MPs. Opposition declined.
o Will deliberate with Cabinet secrecy, but publish information via website.