Summary of readings

Chapter Twelve Referenda and Direct Democracy (87-93)**underline text
• A referendum is any popular vote for purposes other than electing fresh representation
• Such votes are a form of direct democracy as opposed to indirect democracy
• Plebiscites are just glorified and comprehensive opinion poll
• A government can turn a plebiscite into a referendum, in political terms at least, by pledging only to act if the proposal in question is approved
• There are two types of referenda in the strict sense; constitutional and legislative
• Constitutional referenda are familiar are in Australia. They are a necessary element of any formal amendment of the national Constitution. They are also an element of some ‘entrenched’ provisions in State constitutional legislation
• Historically speaking, direct democracy in Australia has taken its most developed form to the question of liquor licensing
• Referendum law is not acutely developed in Australia, in part because such votes are relatively uncommon
• Federal Constitutional Referenda
• Under s128of the Constitution, formal alteration of that document requires a referendum of ‘the electors to vote for…the house of Representatives’.
• This is NOT direct democracy in its preset form, since electors cannot propose an amendment.
• Rather, the amendment Bill is proposed by Federal Parliament, and the people, alongside Parliament and the Governor General, become part of the legislative process.
• In that respect, s128 is a laudable provision on several grounds
• Gives citizens the power of approval or veto over constitutional change, continuing the tradition set in the federation plebiscites and providing a continuing basis for the view that constitutional legitimacy in Australia rest in popular sovereignty
• The mechanism is s128 has always had its critics particularly as it favors the status quo of the original constitution of 1901, ostensibly to insulate this basic law against ‘every gust of passion [and] every legislative medicine man’.
• The conservative effect is compounded by the section’s requirement of a ‘double majority’. That is, majority approval nationwide and in a majority of States
• Key Features and Compulsory Voting at Referenda
• The key features of voting at referenda are similar to parliamentary electoral law – franchise the same and voting is compulsory
• Compulsory voting is a reasonable mechanism for encouraging participation in electoral politics and legitimating governments
• Referenda Questions
• Referenda Campaigns
• States can use as much public funding as they want to oppose federal referenda
• Federal cannot – very one sided

ACTV v Commonwealthunderline text
Facts
• ACTV involves a challenge to the validity of the Political Broadcasts and Political Disclosure Act 199 (Cth), which added a pt IIID dealing with the “Political Broadcasts” to the Broadcasting Act 1942 (Cth).
• Section 95b imposed a blanket prohibition on political advertisements on radio or television during federal election periods – there were similar bans for Territory elections under section 95c and for State and local government elections under s95d
• Exceptions to the bans were made for policy launches, news and current affair items, talkback radio programs and advertisements for charities that did not “explicitly advocate” a vote for one candidate or party.
• Division 3 of Pt IIID establishes a scheme of “free time” for political advertising – this time was to be allocated to political parties by the Australian Broadcasting Tribunal. Of the total time available, 90% was reserved for parties represented in the Previous Parliament and fielding at least a prescribed number of candidates in the current election. Units of “free time” could be used for 2 min telecasts or 1 min radio broadcasts by a single speaker, “without dramatic enactment or impersonation”, accompanied in a telecast by a picture of the speaker’s head and shoulders. The speaker HAD to be a candidate or a sitting member and there had to be “no vocal sounds” and no other picture except a “static background image”
Judgment
• IT WAS ACCEPTED that Pt IIID fell within the Cth power in s51(v) over “Postal, telegraphic, telephonic, and other like services’ or the Cth’s various powers with respect to federal elections
• THE QUESTION BEFORE THE COURT WAS whether Pt IIID was INVALID because it infringed a constitutionally guaranteed freedom of political discussion.
• Mason CJ, Deane, Toohey and Gaudron JJ HELD that Pt IIID was WHOLLY invalid on that basis
• McHugh J held that Pt IIID was invalid except in relation to s95c, which concerned Territory elections
• ALL 5 majority judges committed themselves to an implied constitutional protection for freedom of political discussion
• Only Dawson J rejected that conception
• Brennan J agreed that there was such an implication, but held that the provisions were valid as reasonable restrictions on the protected freedom
Official Reasoning and Judgmentsitalic text
Mason CJ
Constitutional Implications
- Essential to keep in mind the critical difference between an implication and an unexpressed assumption upon which the framers proceeded in drafting the Constitution
- Implications are in the document itself, assumption are not – they are in the sentiment
- Founders assumed that the senate would protect the states but in result it did not do so
- However, the existence of that sentiment when the Constitution was adopted and the influence which it had on shaping the constitution is no answer to the plaintiffs argument that a guarantee of freedom of expression in relation to public and political affairs must necessarily be implied freedom the provision which the Constitution makes for a system of representative government
- THE plaintiffs say that, because such a freedom is an essential concomitant of representative government, it is necessarily implied in the prescription of that system
- Mason CJ accepted the plaintiffs’ argument
- Representative government – the constitution provided for it – by creating the parliament
- S7 and s24 – found representative principles within these two sections
- S7 (Senate)– provides that it ‘shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate
- S24 (House of Reps) – provides that it ‘shall be composed of members directly chosen by the people of the Commonwealth’
- Although s24 makes no reference to voting s25 makes it clear that ‘chosen’ means ‘chosen by a cote at an election’
- Attorney-General (Cth) (Ex rel McKinlay) v Commonwealth
- Makes reference to McKinlay’s case
- Stephen J – discerned in these two provision the principles of representative democracy…and direct popular election
- The constitution nonetheless brought into existence a system of representative government in which those who exercise legislative and executive power are directly chosen by the people
- Freedom of communication as an indispensible in representative government
- Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people, and in that sense, would cease to be truly representative
- The indivisibility of freedom of communication in relation to public affairs and political discussion
- Cannot be limited to a federal level – is not divisible
- Infringement: the test to be applied
- The concept of freedom of communication is not absolute – the guarantee does no postulate that the freedom must always and necessarily prevail over competing interests of the public
- Distinction to be made between restrictions on communication which target ideas or information and those which restrict an activity or mode of communication by which ideas or information are transmitted
- In the first class of case, only a compelling justification will warrant the imposition of a burden on free communication by way of restriction and the restriction must be no more than is reasonably necessary to achieve the protection of the competing public interest, which is invoked to justify the burden of communication. Ordinarily in the area of public affair and political discussion, restrictions on the relevant kind will amount to an unacceptable form of political censorship
- On the other hand, restrictions imposed on the activity and the mode of communication by which ideas or information are transmitted are more susceptible of justification. The regulation of radio and television broadcasting in the public interest generally involves some restrictions on the flow and dissemination of ideas and information. Whether those restrictions are justified calls for a balancing of the public interest in free communication against the competing public interest which the restriction is reasonably necessary to achieve the competing public interest – if the restriction places a burden on free communication that is disproportionate to the attainment of the competing public interest, then the existence of disproportionate burden indicates that the purpose and effect of the restriction is in fact to impair freedom of communication
o The test:
• Distinction between restrictions on ideas and restrictions on means of communication. The former needs a very compelling justification.
• Restrictions of means of communication are more justifiable.
• The Court must consider whether the burden on free communication is proportionate to the attainment of a competing public interest.
Is PT IID Valid
- Appears to fall into the second class
- But the law which imposes the restrictions is not one of general application; - specifically directed at, prohibits – the broadcasting in connection with political advertisements
- Presume the purpose of the act is to safeguard the purpose it to protect the integrity of political process by reducing the pressure on parties and candidates to raise substantial sums of money – thus lessening the risk of corruption and undue influence
- Given the existence of these shortcomings in the political process it may well be that some restrictions on broadcasting of political advertisements and messages could be justified – not withstanding that the impact of the restrictions would be to impair freedom of commination to some extent
- Pt IIID severely restricts freedom of commination in relation to political process

Deane and Toohey JJ
- Based their decision on their joint judgment in Nationwide News
- Held that Pt IID was invalid in that its provisions infringed that implied freedom
- In doing so they held that the guarantee extended to political discussions at both Cth and State levels
Gaudron J
– Substantially agreed with them – held that the implied freedom could not be limited to discussion of political matters at the Cth level, but did acknowledge that it must be subject to reasonable limits , the nature of which might be indicated by ‘the general law’
– She concluded that the law was invalid, since it was not ‘reasonably and appropriately adapted’ to the regulation of broadcasting under s51(v)
McHugh J
- The words directly chosen by the people in s7 and s24 must be construed in reference to the conception of representative government and responsible government as understood by the people of Australia at the time of federation
- McHugh J:
o ss 7 and 24 guarantee more than voting: they guarantee representative government, which requires elected representatives, but also that those representatives be in a position of political power and that they be answerable to the people.
o ss 7 and 24 refer to the Federal electoral process. There is a right to freedom of participation, association and communication in relation to that process.
• McHugh J's judgment was narrower: limited to the Federal electoral process.
- Dawson and Brennan JJ:
o Recognised some limit, but did not find the legislation violated it. Representative government can survive without paid political advertising during election time.

Parliaments in Principle of Administrative Law – Peter Cane and Leighton McDonaldunderline text
- A key event in the history of Australian admin law was the development of ‘responsible government’ in the various colonies
- ‘Responsible government’ refers to the ‘Westminster-style’ or ‘parliamentary’ government
- The key conceptual feature of responsible government is integration of the legislative and executive branches of government
- Such integration is a repercussion of the fact that elected (political) members of the executive branch are not elected as member of that branch but as members of the legislature (parliament).
- Being members of the legislature they are (collectively and individually) responsible to the legislature for the performance of their functions as members of the executive, both personally and through the agency of member of the ‘bureaucratic’ executive (public servants)
- In very broad terms the executive performs three functions:
o Making proposals for and formulating ‘primary’ legislation
o Formulating and making ‘delegate’ (or ‘secondary’) legislation and;
o Conducting the administration of government (‘running the country’)
Legislation
- Primary legislation is made by the legislature – ie ‘Acts of Parliament’ less formally ‘statutes’
- Proposal for legislation, bills, are typically developed by cabinet, ministers of the state and public servants in consultation with the government’s political party, with members of the pubic – most often though the medium of interest groups and other community representatives and organizations – and with other relevant organizations
- Parliament normally enters the picture only when a draft Bill is presented
- On a whole, the ability of parliaments to affect the content of primary legislation is very limited
- In constitutional terms, we can say although, in theory, our system of government is both ‘responsible’ and ‘representative’, the practices by which primary legislation is made are predominantly bureaucratic and consultative
Delegated Legislation
- Delegated legislation is legislation made in the exercise of powers to make legislation delegated by statute to an elected member of the executive branch of government, to a local government authority or to some other government
- Also know as regulations, orders, ordinances, by laws and so on
- Should be distinguished from quasi law or soft law – commonly referred to as policy in the sense of non statutory general rules
- Delegated legislation MUST be applied, soft laws must only be taken in account
- Should be legislatures and the parliaments reviewing this – but that is very difficult considering the amount of issues they would need to review
- The whole purpose of this is to unburden the parliament and assist with these matters
- SSCRO – scrutinize legislation consider the concerns in it and highlight them etc

Responsible, Representative and Accountable Government (125-133)underline text
- Eclipse of parliament
- Substitution of party parliament for parliamentary government
- The rise of the ‘elective dictatorship’
- The effect of party discipline has been the virtual destruction of parliament as an institution, and of parliamentary democracy as a process
- Modern political parties are organizations designed to prevent parliamentary government from working
- Is responsible government compatible with representative democracy?
- Concept of responsibility in government has different meanings – the meaning most relevant here is ‘the accountability of ministers or of the government as a whole, to an elected assembly
- Responsible or parliamentary government this is ‘that form of government in which the executive is drawn from the legislature and is constitutionally responsible to it’
- Its essence is the power of the legislature to control the executive and, if not satisfied with its performance, to dismiss that executive
- That is why parliamentary government is constitutionally described as responsible government
- There is no room in this system for the independent member, except those without party labels. There is no room for the government backbench to combine with the opposition to control the executive. That would be political suicide. And since mass membership political parties were spawned by the universal franchise of representative democracy, this form is clearly incompatible with the narrower voter base of responsible government
- Scholars identify two types of responsible government
- ‘Responsible parliamentary government’ and ‘responsible party government’
- The two are INCOMPATIBLE
- The key feature of the former is to control the executive
- The term responsible party government is taken to mean that Cabinet is more responsible to the governing party than to the Lower House of Parliament or indeed any other group or institution
- Peculiar to Australia is the existence of both types of responsible government
- The constitutional crisis in 1975 reflected the two conflicting and irreconcilable positions on responsible and representative government
- IT was illustrated in the different versions of the dismissal of the Whitlam government
- 1. They said that – The greatest of the Senate’s powers is its power to withhold Supply from a Government and force a dissolution of the House of Representatives, or of the Parliament. This power has roots in the principle of responsible government
- 2. A rejection of supply by the Senate resulting in the fall of a Government strikes at the very root of the concept of representative government. The House of Representatives was designed and has always been recognized as the House of Government – the people’s House
- In Australia there is responsible party government in the House of Representatives and responsible party government in the Senate
- Put in another way, there is party government in one house, party opposition in the other and political opportunism in both
- The functions of parliament
- The party or coalition of parties that commands a majority of seats in the House of Reps is entitled to form government
- The basic function of the senate one that differentiates it from the House of Reps, is the house of review function, and this is also part of the rationale for bicameralism
- Three types of functions
- ‘Scrutiny functions’
- ‘Latent legislation of the political system’
- Functions with long history
- Accountable Government
- Accountable government may be a more serviceable concept than responsible government
- In the strict sense- accountability is a requirement for relevant persons or organizations to give an account or explanation of what they do to those empowered to obtain this account or explanation
- Raises the familiar question of whom is accountable to whom, for what are they accountable, what are the means of processes for obtaining these accounts, and finally, what are the results or outcomes, including sanctions of all this
- Three forms of accountability (UHR) political, public and parliamentary
- They overlap and interact with one another
- Political and parliamentary accountability overlap in the competition between political parties for votes as the next election
- Parliamentary and political accountability overlap with public accountability in at least two ways
- First through the media, particularly press and radio, a major instrument of accountability
- Media is seen and sees itself as one of the check and balances in a representative democracy
- The second way in which public accountability overlaps with the other two form is through ‘extra-parliamentary accountability institutions…that are designed to enhance accountability of government’
- They operate outside the parliament and the political process expressed through the parliament
- E.g. Administrative appeals tribunal and the Ombudsman
Commonwealth Fiscal Power and Australian Federalism (137- 158)
- Australian federalism is characterized by an unusually high degree of vertical fiscal imbalance (VFI).
- With just mire that half of the service delivery responsibilities, the Commonwealth controls over 80 percent of all tax revenue – well excess of its requirements
- Such a disparity necessarily entails some system of fiscal transfer whereby the surplus funds of the Cth and are used to make up the corresponding shortfall in the States
- States on average are dependent on the Cth for 45 percent of their revenue
- A substantial share of those transfers is in the form of Specific Purpose Payments (SPPs) or ‘tied grants’ which the Cth uses to exert policy influences in areas of State jurisdiction
- TWO ways of viewing this
- The Cth is simply correcting a historical error – by using the tied grants to gain access to this necessary national interest role in areas where by accident of history the Cth would otherwise be denied access
- The other view is that this pattern of intervention and entanglement can be seen as one of the pathologies of federalism
- The heavy reliance by the States on the Cth and the resulting constraints and burdens this creates magnifies some problems and reduces the potential benefits of a system of divided jurisdiction
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- Constitutional Status
- Framers of the Aus constitution elected to follow the American single-list approach to creating a division of powers in preference to the Canadian multiple-list approach
- Cth was given a list of power in s51 in which heads of power were given to the Cth which were soley the power of the Cth and would reign supreme according to s106 and s107 over state law
- Then the States were given plenary and ample power over all other unlisted powers
- Overtime the HC has broadened the heads of power to encompass more and more powers
- To avoid a repeat of what happened in the US – in which the Center took majority control thanks in large to the absence of enumerated state powers
- Australian framers inserted s96 into the constitution – to remedy the defect of having no explicit license to spend in areas of State jurisdiction – inserted for reasons which seem to have been connected with the desire of the financially weaker states to facilitate subsidies from the Cth
- S96 gives the Cth authority to make grants to the states ‘on such terms and conditions as the Parliament sees fit’.
- This has two consequences
o Unlike the US or Canada no scope exists for judicial doubts about the constitutionality of national spending programs that impinge upon sub-national (state) jurisdictions
o The other is that spending power can be used as a much more punitive and coercive instrument to deny the States access to one of their core powers, as it was in the 1942 Uniform Tax Legislation
o Latham CJ declared that tied grants should be seen as merely instruments of inducement rather than coercion. Moreover, he declared, inducement can as legitimately be directed as expelling the States from a jurisdiction as it can be eliciting an action
- The idea of a division of powers with each level enjoying its own autonomous domain in addition to areas of concurrent jurisdiction gave way to a reality in which the Cth continued to enjoy exclusive jurisdiction and the States largely had to relinquish theirs
- Since engineers which caused the prevailing of the interpretive doctrine of legalism it is difficult to see any constitutional limits to the spending power in Australia
- The Reason for Tied Grants
- The answer lies in the nature of the classic of ‘first generation’ federations and the adaptations they have made to modern industrial society.
- The question really has two parts;
- Why does the VFI exist – why does the Cth have such revenue excess and the States such a revenue deficit?
- Why central governments in general, and the Cth government in particular, make use of their surplus in the way they do?
- A) Fiscal Imbalance and modern federalismitalic text
- VFI is more extreme in Australia than other federations
- In accordance with the approach Australia followed to the division of powers – the approach of ‘legislative federalism’ – the two governments were assigned PARALLEL taxing capacities
- Taking the approach of legislative federalism created an inbuilt tendency to conflict over resources
- Central governments in such systems have typically been assigned a broad, indeed perhaps, plenary power to tax – as the Cth was in s51(II) of the Constitution
- Unconstrained tax power has certainly helped the cause of centralization, but it would not have brought about centralization on its own.
- B) Fiscal Imbalance and Australian Federalismitalic text
- The general tendency towards VFI does not, of course, mean that national experiences or outcomes will be the same. In Australia, the State and local governments together control only 18 percent of total tax revenue and the Commonwealth control the remaining 82 percent
- In Australia there three main taxes are monopolized by the Cth
- 1. The Sales Tax Prohibition and GST
- Australia’s atypical degree of VFI is a consequence of constitutional and political history
- The founder were not aware of the problems they were creating
- Establishing a single market lead most important source of income to the Cth – tariffs
- Absence of a transfer of responsibilities meant that the States would have large deficit and the Cth a equivalent surplus
- Also gave excise the Cth – if not bad enough the HC has interpreted this so broadly as to include sales tax
- Introduced GST – goes to the States – however very minimal
- Cth was enjoying higher income (income tax revenue) by the time GST started to flow in a healthy manner
- Most of the States money goes into the capital fund which the Cth can spend on yet more projects in the State jurisdiction
- GST is also a Cth legislation amendable at anytime by the federal parliament
- 2. The ‘Surplus Revenue’ Delusion
- Founders also oblivious to the leverage this revenue imbalance might provide the Cth in the federal system
- Cth at the time was seen as a revenue collecting agent for the States
- S87 and s94 taken together seemed to imply this intent – however they did not succeed to do so in a binding way
- S87 a spent clause done and dusted – Cth gave the States ¾ of its customs and excise revenue for 10 years
- S94 redundant clause
- 3. Money Without Power
- Founders seem to be oblivious to the naked power placed in the hands of the Cth by s96
- HC elected to interpret s96 in a very broad manner sufficient to encompass its coercive use to dictate which of their powers the state may or may not exercise and that this was not intended or envisaged by the founders
- Disregard by the founders seems to steam from the assumption that the Cth’s list of enumerated powers would function as a limiting list and this the Cth would only have that finite range of functions on which it could legitimately spend
- C) Tied Grants and Modern Federalismitalic text
- Cth for a good part of history was acting as little more than a tax collection service – just as the founders envisaged. Using general purpose payments – which are those intergovernmental transfers that have no policy or program conditions attached
- IV The Business of Tied Grants
- From the beginning the purpose of tied grants was to induce, in Latham’s words, a specific policy action from the recipient’s. The problem here for the granting government is the fungibility of money
- IF the federal government is giving additional money to a project that the State government is already funding it is possible that the State government would reallocate some of its own money elsewhere thus undermining the policy intent of the grant
- This is why they use forms of conditionality either ‘maintenance of effort’ or ‘matched funds’ - mechanisms to ensure desired effect
- Tied grants have become a dominant feature in Australian federalism
- V The Problems With Tied Grants
- The capacity the spending power gives the Cth government for imposition of their particular values or policy priorities at the time
- A) Tied Grants and the Erosion of Federalismitalic text
- They violate the division of powers or unsurp the role of the States
- The spending power is an invitation to ‘opportunistic federalism’, where intervention occurs for electoral expediency or ideological desire and does not correspond to the sort of justifications articulated by the theory of fiscal federalism
- Answers depend on ones disposition towards federalism and view of its intrinsic value and practical possibilities
- If federalism is seem as being capable of delivering the kind of democratic and policy benefits its advocates applaud for it, there is every reason to prefer the inherited division of powers and look suspiciously on any centralizing initiatives
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- B) Governmental deficiencies of Tied Grantsitalic text
- Criticizes focus on the practical implications of tied grants
- E.g. wastage and lack of efficiency
- VI The Benefits of Tied Grants
- Tied grants have their defenders
- One defense is that they do serve an important national purpose and are less coercive than at face value they might appear to be. In other words, they address constitutional deficiencies without neglecting federalism. The other is that they actually enhance federalism by offering citizens greater policy choice and political leverage: the very overlap and duplication they represent is actually a benefit
- A) Tied Grants as Benign Correctiveitalic text
- Enable national policies in areas where such policies have popular support
- B) Tied Grants as Enhancementitalic text
- They facilitate a certain variant of competitive federalism
- School of economic though that holds that one of federalism’s main virtues to be the jurisdiction rivalry it creates as sub-national governments compete to please their residents and attract and retain investment. This competition occurs – horizontally
- In this notion vertical competition, national and sub-national governments compete against each other for affections of citizens; ‘overlap and concurrency widen the opportunities for citizen-consumers to signal their preferences
- Mobility is not required, merely voting power – thus main criticism of horizontal competition is neutralized
- PROBLEM
- We are mistaking duplication for ‘competition over near-substitutes’
- In the public sector unlike the private where two levels of government are competing in the same policy field with different programs are typically entangled and increase cost to the taxpayer in proportion to the degree of duplication and overlap
- ANOTHER problem
- Is no level playing field in the policy market: VFI means that sub national governments – which carry the burden of public expectations since they exercise the de jure responsibility – may be failing to provide their residents with the desired level, quality or type of service for reasons largely outside of their control, where as, the national government has the luxury with its superior financial resources and no formal responsibility
- FINAL PROBLEM
- That the greater degree to which a federal system functions in terms of vertical competition, the more likely its ability to function in a federal manner will be compromised and other benefits of federalism minimized.
- VII Reforming Tied Grants
- Movement towards a Canadian Style set of taxation arrangements would reduce VFI noticeably
- GST remedy is a good idea – Cth serves as a tax collector for the States as originally intended
- Increase GST and reduce Income tax would increase the States income and reduce the Cth’s
- Reforming Tied Grants in themselves
- As done overseas replacement of individual tied grants with more generic ‘block grants’
- Block grants have many of the advantages of general purpose grants as far as developing policy autonomy back to the subnational jurisdictions concerned
- Elimination or ‘broad-banding’ of SSPs
Parliament and Extra-Parliamentary Accountability Institutions
• Extra-parliamentary accountability – a term encompassing all institutions that are designed to enhance accountability of government and which operate outside parliament and the political process expressed through the parliament
• This is a defining characteristic of bodies otherwise as diverse as auditors-general, ombudsmen, administrative appeals tribunals and commissions of inquiry, permanent and temporary
• Intended to provide avenues of accountability more or less independently of the supposed accountability of government to parliament
• There has been a significant expansion of these kind of bodies in recent decades
• Largely driven by a perception of the inadequacy of parliament as an accountability mechanism
• This thesis can be put in terms of the government being so large and complex and parliament so busy, or, more frankly, in terms of debilitation of parliament brought about by the party system
• The development of the Westminster system such that the executive government largely controls parliament is seen to have almost destroyed parliament as an institution able to enforce accountability
• Extra parliamentary institutions are meant to fill that gap
• Obvious paradox – as these institutions require parliamentary action, usually in the form of legislation, to set them up
• They are established by the very body whose degeneration requires their establishment, a body that is largely controlled by the very executive which has avoided accountability through that control
• In order to understand this paradox fully it is necessary to appreciate how accountability of government works
• Accountability, that is, the ability to compel the government to account for their actions, is an adjunct (accessory) of responsibility, the ability to remove from office particular ministers or governments.
• As the thesis of parliamentary debilitation has it, governments are no longer responsible to the parliament but ONLY to the electorate at election time
• Accountability therefore focuses on that mechanism of responsibility
• It essentially consists of public exposure of matters that effect the public perception of a government – such exposure can have that effect only if a great deal of public noise is made about it, because the public are a very large and diverse body of people most of whom pay little attention to public affairs most of the time.
• Governments try to avoid public exposure of their blunders and misdeeds and rewards to friends, because such exposure may erode public support
• If the government have the power to do so they will avoid accountability by removing accountability mechanisms
• Extra-parliamentary accountability bodies operate in this context – they function through the political process that focuses on public exposure and public perception bearing on the next election
• In this process, parliament is very important to their functioning – as parliament generates the political nose and political heat that has to arise from the public exposures by the accountability institutions for their work to have any effect
• In short, accountability is essentially a political process. It operates in the swap of politics
• Attempts have been made to get accountability out of the swamp of politics – in particular reforming governments have tried to lift matters of official misconduct out of politics by establishing high-powered inquisitorial bodies wired into the criminal justice system and partaking so something of the nature of criminal investigation agencies and something of royal commissioners
• In spite of its debilitation, then, parliament is still the key to maintaining accountability, even through extra-parliamentary bodies, because it is the principal forum of the political process and because accountability relies ultimately on the political process. Those bodies depend on that process for both their existence and their work

Government Advertising: Parliament and Political Equalityunderline text
- About advertising campaigns promoting government policy, and concerns with them.
- Being told what to think may be as much a concern as being told what to do. This is where advertising to sell government policy is problematic, for two reasons
o One that it erodes important, traditional distinctions between government and citizen
o Second that especially when done on the sale of the past decade it erodes political equality
- First, the relationship of government to citizen
- Strike down of the short lived labor ban on paid, broadcast, election advertising, the flaw in its reasoning was to reason from a US-style right to ‘free speech’ – Britain has a much broader ban, but is no less a representative democracy
- The HC should have reasoned, without being too post-modern that in a consumer age, television advertising may be essential to keep politics ‘sexy’ and before otherwise disengaged voters, especially given compulsory voting
- Lefists who criticize government have a central role to play in building society, just as conservatives who broach no caps on government advertising
Combet
- Combet sued something called ‘The Commonwealth of Australia’, as well as the Minister for Workplace Relations and the Minister for Finance
- The ACTU (Australian Council of Trade Unions – with the support of the ALP (Australian Labor Party) shadow minister) sought to restrain the Minister for Finance from approving payment of the government’s initial IR ads.
- In reality the case was a political gambit – had the ACTU won the practical effect would have been to embarrass the government, which to meet the debts and to continue its advertising, would have had to approach the parliament for a special appropriation for the campaign
- The case was framed as a fairly limited question of statutory interpretation
- That question was whether the 2005 budget covered expenditure in an IR ad campaign
- The ACTU argued that none of the departmental outcomes or the supporting portfolio budget statements mentioned anything approximating a campaign to advocate new policy, and that it contributed to none of the states budgetary ‘outcomes’ – yet in other areas the budget statement specifically set aside monies for advertising and communication strategies. The government, in its defense, argued that advertising was a normal incident of government, and that the budget allocation were broad enough to allow flexibility vague outcome of ‘Higher productivity, higher pay workplaces’
- A majority of five to two agreed with the government
- But 4 of them did so for narrow reasons that surprised, even blindsided, observers and participants alike.
- The 4-judge opinion used very fine distinctions to argue that ‘departmental items’ did not have to be linked to outcomes at all; only ‘administrative items’ did.
- The distinction they said was between expenditures ‘managed’ by an agency or authority on behalf of the government, as opposed to those ‘controlled’ by the department
- The majority gave no clue as to what constraints, if any, limit ‘departmental expenditure’ is at large, this raises the spectre of billions of dollars being subject neither to input or outcomes limits
- Presumably the limits, if any, must be set outside the budget process, and in a ‘job description’ based on the sorts of subject matters implied in the title of each portfolio, since the legislation administered by a department cannot delimit the field into which new policy measures may stretch
- Gleeson CJ separate reasons in support of the government’s case are considerably more credible and transparent. Where as the majority’s method sees driven by a desire to escape the inescapable, namely confronting the controversial policy questions surrounding the limits of government advertising, the CJ addresses them head on. ‘Persuading the public… of the merits of government policy as the drafting of advice and legislation. Not that he would necessary are not so abstract as to be meaningless, it is up to Parliament to insist on more specific and transparent budgetary drafting it so wishes.
- CJ wishes to portray the budget papers as essentially the work of Parliamentary choice.
- The unstated assumption in his reasoning is that executive control of parliament, especially in the House, is not a matter for judicial notice
- IN a rich dissent Justice Kirby devotes considerable attention to the underlying question of policy, principle and constitutional balance. He concludes that no promotional advertising of pre-legislative policy fits the constitutional expression ‘the ordinary annual services of the Government’
- He does so by deferring to the 1965 compact – an agreement between the Senate and the house of reps – which requires that appropriations for expenditure on ‘new policies not previously authorized by special legislation’ are not covered by the ordinary Appropriations Act. The Compact was meant to ensure that expenditure on policies not yet presented to the Senate, not be hidden in the ordinary Appropriations Act that the Senate cannot amend. CJ Gleeson could reply that expenditure on advertising a new policy is not the same as expenditure to implement it; though the offence to the Senate is no less
- Justice Kirby’s judgment would have rendered the IR campaign, like the pre-1998 election GST campaign, unlawful without special appropriations bill to cap expenditure on large scale, especially electronic, campaigns
- The line that Kirby J draws around policy that is not yet approved by Parliament is not just a formal nicety to avoid the executive massaging popular opinion or, as he and McHugh J put it, pressuring the parliament. Parliament often delegates power to the executive and the executive has some prerogative powers. But what we are dealing with, in the IR and GST campaigns, are pre-legislative policies, and as McHugh and Kirby JJ said, the campaigns are far from being sketches of policy ideas, inviting public consultation. Rather they are rhetoric and argumentative campaigns in the same partisan mode as the ACTU’s scare campaign.
Changes to the Framework for Government Advertising
- Greater accountability and transparency of government via advertising
- In this regards advertising fulfills a crucial service and an important democratic function
- Governments have an obligation to establish a framework for delivering this information in a transparent, accountable and fiscally responsible way
- In 08 the Rudd government introduced guidelines to enhance the transparency and accountability in the use of public funds in this crucial area, and directly respond to community concern about the potential for public funds to be misused under the guise of public information
- The Rudd government reforms in this area have ensured advertising campaigns are not independently reviewed for compliance with guidelines, properly targeted and non-political in nature

Guidelines on Information and Advertising Campaign in Australia by Australian Government Departments and Agenciesunderline text
- Learn?
- Principle 1: Campaigns should be relevant to government responsibilities
- Principle 2: Campaign materials should be presented in an objective, fair and accessible manner and be designed to meet the objectives of the campaign
- Principle 3: Campaign material should be objective and not directed at promoting party political interests
- Principle 4: Campaigns should be justified and undertaken in an efficient, effective and relevant manner
- Principle 5: Campaigns must comply with legal requirements and procurement policies and procedures

The Integrity Branch of Governmentunderline text
- The Idea of Integritybold text
- Considered as a branch of government, the concept focuses on institutional integrity rather than personal integrity
- The role of the integrity branch is to ensure that the concept is realized, so that the performance of governmental functions is not corrupt, not merely in the narrow sense that officials do not take bribes, but in the broader sense of observing proper practice
- Beyond issues of legality, the integrity of a governmental institution is determined by two additional considerations
- First, the maintenance of fidelity to the public purposes for the pursuit of which the institution is created
- Secondly, the application of the public values, including procedural values, which the institution was expected to obey
- Overlap of Functions
- Many of the existing institutions of the three recognized branches of government including the Parliament, the head of state, various executive agencies and the superior courts, collectively constitute the integrity branch of government
- The idea of ‘separation of powers’ – has always been an oversimplification
- More accurate to describe the system as one of ‘separated institutions sharing powers’
- E.g. the extent to which the executive performs legislative functions, even amending actual legislation
- Integrity Institutions
- Parliament as an institution – its primary function is legislation – however – does more than pass statutes. The traditional role of ministerial responsibility in a Westminster system “accountability” can be understood, in part, as the performance of an integrity function. The institutional manifestation of such responsibility: the existence of a formal Opposition, the significance of daily question time and inquires by parliament committees, perform the integrity function of government
- The integrity function of the Parliament lies at the heart of the legitimacy of our governmental process
- It does more than legislate – it performs an important role in ensuring power conferred upon the executive and on judges, given the authority of Parliaments to remove judicial officers, are properly performed
- The integrity function is performed, or is able to be performed, by the Governor-General and Governors in the Australian federal system
- In our system a head of state must, of course, act on the advice of an appointed Minister. In its origins, this was a constitutional requirement intended to protect Parliament from the arbitrariness of royal authority
- Integrity role of the governor general
- A reserve power of undefined but limited scope may exist in exceptional circumstances enabling the head of State to act other than strictly on the basis of advice – a controversial issue
- The GG has a responsibility to see that the system works as required by the law and conventions of the constitution, but he does not try to do the work of the Ministers
- Many of the institutions of the integrity branch appear to be emanations of the executive. However, of the years a number of such institutions have, by legislation and practice, developed an independence which has become institutionalized and often entrenched. Such institutions perform supervisory roles with respect to each of the three branches – although most are concerned with the executive
- Perhaps oldest such institution is the centralized audit office – Auditor-General – ensuring that government expenditure is properly made by means of financial audit is clearly an integrity function. Its focus is justice/morality
- The definition of what constitutes ‘corruption’ for relevant purposes may vary, but the integrity function is clear. The jurisdiction of such bodies extends beyond the members of the executive branch
- Complaints and concerns with the efficiency or courtesy of particular persons is dealt with by Ombudsmen and other mechanisms of complaint handling. Complaint mechanisms are designed to improve the quality of decision-making and are more in the nature of the performance of an executive function, than an integrity function. Nevertheless, many complaint handling bodies, including Ombudsmen, do perform integrity functions
- Integrity issues are often the focus of attention of public inquires. These are conducted by Parliamentary Committees and by the executive government inquires, notably Royal Commissions
- The Judiciary’s Roleitalic text
- Judicial institutions and the performance of integrity functions by the Courts
- Constitutional law is a clear case of an integrity function directed towards the legislature
- Judicial review is a manifestation of the integrity branch of government
- At a federal level, Australian administrative law has a constitutional dimensions by reason of s759(v) of the Constitution, which expressly confers jurisdiction to the High Court with respect to the constitutional writs or prohibition and mandamus. – even more clearly a manifestation of an integrity function
- Policing the Boundaryitalic text
- The legality and merits dichotomy does not involve a bright line test. The boundary is porous (spongy) and ill defined.
- Over the recent decades Australian administrative law has diverged from that of England
- The reason for the difference is to be found in the HC chapter III jurisprudence. There Separation of powers under the Cth Constitution is of a different quality to anything that has been accepted in the UK.
- The scope of the Kable doctrine appears likely to be resolved by the HC in the near future. The doctrine of separation of powers has a similar degree of rigour under State Constitutions, including under s106-108. The separation of judicial power requires restraint on the part of the courts when approaching the border of executive, let alone legislative, power.
- Judicial Legitimacyitalic text
- Administrative law has long since emerged from Dicey’s denial that it existed at all, to be recognized as a distinct body of law
- Put forward the idea of an integrity branch of government as an alternative statement, at a high level of generality, that can provide a broader context within which the case law on judicial review can develop, without transgressing the proper role of a judiciary in a democratic polity

The Commonwealth Ombudsman – an integrity branch of government?underline text
- Spigelmen CJ proposed we should recognize ‘an integrity branch of government as a forth branch, equivalent to the legislative, executive and judicial branches’ which will
o Ensure that the each governmental institution exercises the powers conferred on it in the manner in which it is expected to and/or required to do so and for the purposes of which those powers were conferred, and for no other purposes
- The institutions Spigelmen CJ suggested as forming part of this branch are emanations of the executive which have be legislation and by practice developed institutionalized independence, such as the Auditor-General and the Ombudsman
- Case study: immigration
- The increasing focus on improving the overall integrity of the government by going beyong the individual complaint to improving the system of administrative decision-making can be seen in recent immigration investigations of the Ombudsman.
- 2006 the ombudsman released 3 damning reports into the immigration department’s handling of 20 people detained in Australia’s immigration system
- The reports identify a number of mistakes by the department of immigration (DIMA)
- Concluded that the DIMA’s administration was unsatisfactory
- Made recommendations for administrative improvements which include training officers to ensure they understand the applicable legislation and policies, ensuring that records are accurately recorded and maintained, and improving internal monitoring and review practices
- The urging reports by the ombudsman highlights how an effective ombudsman institution can suggest improvements in public administration and strengthen the accountability framework in Australia
- Significant limitation is that the recommendations are not enforceable – they are not a guarantee
- The recommendations suggested by the ombudsmen were accepted by the DIMA – which indicated it was taking action to address the issues identified
- More than a complaint-handling mechanism?bold text
- The Cth ombudsman annually investigates thousands of complaints from members of the public about the administrative decisions of he government agencies like the DIMA
- Over its 30 years of operation the office has handled over 400 000 complaints and dealt with many more written and oral inquires
- The reactive individual complaint handling role is the traditional core business of the Cth ombudsman and is critical for principles of democracy and accountability
- Undoubtedly this role contributes to the integrity of government administration through improving the quality of decisions with respect to the executive function
- Importantly, the integrity function of the ombudsman extends beyond the individual complaint taking role – the office now places growing emphasis upon being a proactive system reformer rather than a reactive complaint handler
- Arguments in favor of an integrity branch of government
- The creation of more than three branches of government has international precedent (Costa Rica)
- There is a broad improvement internationally to recognize the importance of integrity system
- In Australia democratic accountability of Government to its citizens is achieved through the doctrine of responsible government – a doctrine reliant upon there being a separation between the arms of government
- The ombudsman as demonstrated in the DMIA case study can in addition to the judiciary and the legislature assist to ensure that activities of government agencies are subject to substantial scrutiny
- Ombudsman through its recommendations for administrative changes, and monitoring of responses to recommendation made can play an active role in upholding the rule of law and contribute to the traditional forms of accountability such as judicial review

The Sources and Scope of the Commonwealth Power to Spendunderline text
- Pape v Federal Commissioner of Taxation is the first significant case for more than 30 years on the sources and scope of the Cth constitutional power to spend.
- In issue was the validity of one of the measure taken by the Cth to stimulate the Australian economy at the outset of the GFC, in wake of the G20 meeting in late 2008 and early 2009
- The Tax Bonus for Working Australians Act (No.2) provided for the payment of the amounts ranging between $900 to $250 to eligible Australian taxpayers from April 2009
- Its validity was challenged by a potential recipient of such a payment, whose standing was partially conceded by the Cth, undermining its attempt to contest the standing of the plaintiff to challenge the validity of the Act as a whole and rendering the outcome of the case relatively insignificants a pointer to taxpayer standing
- The challenge reached the full court as a special case on the basis of the agreed facts that included the severity of the global macroeconomic conditions. The States of NSW, SA and WA intervened
- Four justices, French CJ and, in a joint judgment, Gummow, Crennan and Bell JJ, accepted that the challenged Act was a valid exercise of the incidental legislative power of the Parliament in s51(xxxix) of the Australian Constitution, in support of the executive power in s61
- In a second joint judgment, Hayne and Kiefel JJ rejected the combined executive power and incidental legislative power as a basis for the Act but held that once read down so that the amount of the bonus payable did not exceed a recipient’s tax liability, it could be supported as an exercise of the taxation power (s51(ii)). Heydon J held the Act was invalid
- The principal purpose of the comment is to tease out what appear to be the doctrinal consequences of the decision in Pape, which in turn have implications for the constitutionality of direct spending by the Cth for purposes beyond the reach of its substantive legislative powers. The capacity of the Cth to spend for such purposes will be described, admittedly loosely, as the Cth’s “spending power”.
- In passing, however, attention also is drawn to the wider significance of the case for Australian federalism and for representative and responsible government. As an aid in understanding, the comment begins with an overview of the relevant constitutional framework and a summary of the relevant case law as it previously stood, before embarking upon consideration of the reasoning of the justices in Pape itself
- Constitutional Framework
- It is useful to begin with an overview of the provisions of the Constitution which are potentially relevant to the issue of spending, not only because of historical disagreement about the source of the Cth’s spending power but also because that court seems to be inclined to develop an holistic understanding of these provisions
- The two principal contenders for the source of a spending power have been the provisions dealing with the parliamentary appropriation in s81 and 83 of the Constitution and the general executive power in s61
o S81 – ‘All revenues or moneys raised or received by the Executive Government of the Cth shall form one Consolidated Revenue Fund, to be appropriated for purposes of the Cth’
o S83 ; ‘No money shall be drawn from the Treasury of the Cth except under appropriation made by law.’
o S61 – ‘The executive power of the Cth…extends to the execution and maintenance of this Constitution, and of the laws of the Cth
- Do not clearly confer authority to make such laws – nevertheless these sections are the source of a spending power
- The relationship between s61 and s51(xxxix) presents a series of difficulties from the standpoint of both federalism and representative government
- S53 and s54 limit the powers of the Senate over bills ‘appropriating revenue or moneys for the ordinary annual services of the government’ and to a lesser extent, over other appropriations bills and s56 reinforces executive control by requiring the purpose of an appropriation to be recommended by the GG to a House before an appropriation bill is passed
- S89 and s93 provided for the payment for the payment of moneys to the States in the early years of federation;s94 deals with the payment of surplus revenue to the States; s96 empowers the Parliament to make grants to the States on terms and conditions; and s97 makes interim provision for the audit of Cth receipts and expenditure
- Before Pape
- The Outcome in Pape
- In Pape, the HC walled called upon to determine the validity of the tax and bonus legislation against the background of an unsettled jurisprudence about both the soruce and scope of the Cth power to spend for purposes beyond its substantive legislative powers. Pape has resolved the issue of source, but the scope of the power remains as unsettled as ever.
- In part this consequence of the well-established preference of the court to resolve questions about the scope of constitutional authority on a case-by-case basis.
- In part, however, it is also the consequence of two other factors, peculiar to Pape
- One is the degree of ambiguity about whether the legislation id best viewed as a spending initiative or as an urgent response to a crises, for the purposes of determining its constitutional validity
- The second is a deep division that the issues and argument in Pape have exposed between members of the court over what Hayne and Kiefel JJ describe as ‘understanding the structure of the federation’, but that also affects relations between the legislature and the executive
- For 4 members of the court, French CJ, and Hayne, Kiefel and Heydon JJ, the constitution establishes a system of government in which legislative and executive power is divided for federal purposes along broadly, although not precisely, similar lines
- By contrast, Gummow, Crennan and Bell JJ seem prepared to accept a much broader scope for the Cth executive power in terms of both breath and depth, which equates the position of the Cth with that of the Executive in the UK at the time of federation, on the basis of reasoning that draws obliquely on a view of the Cth as the successor to the UK government once full independence was achieved
- It is convenient to consider the doctrinal significance of Pape by reference to the 3 more of less distinct issues
- The relevance of s81 and s83
- The scope of the executive power in s61
- The scope of s51(xxxix) in support of executive power
- Section 81 and 83
- Establishes s81 and 83 are not the source of a Cth power to spend
- There must be a valid appropriation before the money can lawfully be withdrawn to meet expenditure

- Section 61
- The source of authority for Cth spending typically is supplied by one or other of the substantive heads of legislative power
- Failing all else the authority for spending power can be sourced from executive power – with greater or lesser degrees of enthusiasm all justices expect Heydon J seemed to accepted that the formulation of Mason J in the AAP case adequately describes the scope of the executive power for this purpose
- Section 51 (xxxix)
- Once action is validly sourced in executive power, s51(xxxix) provides the authority for the legislation with respect to ‘matters incidental legislative power was presented in a relatively benign form in Pape’
- The Tax bonus created a right to receive a bonus and a duty to pay it but otherwise was regulation-light
- Both sets of majority reasons accepted its validity as legislation incidental to the exercise of executive power with little apparent difficulty and relatively little analysis
- Both sets also reiterated there are limits on the scope of incidental legislative power – particularly when used in support of executive power