How is ministerial responsibility enforced in australia

Notably, there are some additional disclosure and voting obligations for directors: ss 27F—27J. If a person contravenes a civil penalty provision, a court may make various declarations and impose a pecuniary penalty and compensation: sch 2 cls 2—4.

There is a defence to s 23 for an officer if the officer is required to do the act under the Commonwealth Authorities and Companies Act s 27A 1 or in the course of the performance of duties as a public servant s 27A 2 , and in some circumstances for a director acting in good faith and after making proper inquiry if appropriate ss 27D—27E.

The defences to s 24 are the same as those for s see above n The defences to s 25 are the same as those for s see above n See also ss 8 , 12 4 excluded subsidiaries ; Auditor-General Act Cth s See also Auditor-General Act Cth s The Commonwealth Authorities and Companies Regulations do not presently prescribe any such authorities or impose any such obligations.

See also Fair Work Act Cth s They are thus afforded all the rights, duties and powers of an employer in respect of their APS employees, with authority to engage, terminate and determine their employment terms and conditions. How performance is actually measured is evolving: see at 13—16, 20—4, 28—31; KPMG, above n , 22—4. See Public Service Act s 10 1 ; text accompanying above nn — This is similar to the —10 result. See also Groves, above n 14 , 83— Notably, the amendment also mirrored the equivalent provisions in the Commonwealth Authorities and Companies Act ss 16 1 directors of Commonwealth authorities , 41 1 directors of wholly owned Commonwealth companies.

Receive and require reports, documents and information about operations of the authority and its subsidiaries. Give directions about procurement of property or services including to comply with the Commonwealth Procurement Guidelines. Receive information and documents about the involvement with a company, partnership, trust, unincorporated joint venture or other significant business activity.

Require interim reports on operations, financial statements and audit be provided to responsible Ministers. Public Service Minister. Determine the remuneration and other terms and conditions of employment of APS employees in exceptional circumstances. Give notice to an Agency Head who receives non-Commonwealth remuneration for performing duties as an Agency Head about forfeiting that remuneration. Receive a report from the Merit Protection Commissioner about an action of a statutory office holder.

Receive a report from the Secretary of any Department that is administered by the Agency Minister about a vacancy. Receive a report from the Secretary of any Department that is administered by the Agency Minister about terminating the appointment of the Head of an Executive Agency. Policy Agency. Department of Climate Change and Energy Efficiency. Department of Education, Employment and Workplace Relations. Mandatory Publishing Obligations for Procurement Activities. Department of Finance and Deregulation; the Treasury.

Autonomous Sanctions Regulations Cth. Obligations under International Agreements in Government Procurement. Department of Innovation, Industry, Science and Research. Equal Opportunity for Women in the Workplace Agency. Make Special Instructions about special public money.

Make determination establishing Special Accounts. Regulations may authorise issue of guidelines by Ministers. Issue Commonwealth Procurement Guidelines. Issue Commonwealth Grant Guidelines. Approve future commitments of public money. Specify a threshold for contingent liabilities.

Approve payments pending probate. Authorising act of grace payments. So, when a convention is broken, the consequences are usually political rather than legal. Instead of being brought before the courts, a convention breaker is more likely to suffer political criticism, be the subject of popular outcry, or be punished at the ballot box.

The general understanding is that ministers are accountable to parliament for their policy decisions, for the administration of their departments and for any relevant indiscretions. For some, it means the minister must resign upon the discovery of any misadministration or mistake. For others , accountability requires that the minister is obliged:.

A desire for greater certainty has led to some discussion in Australia — and elsewhere — of arguments in favour of codifying constitutional conventions and making them enforceable as a matter of law. This is certainly possible. This may undermine the extent to which the people can control their government. The question then becomes whether we prefer greater flexibility and democratic control over the government, or greater certainty and judicial control. But there may be a middle ground.

These conventions affect how government operates during election campaigns. But it offers clarity for those affected by the relevant constitutional conventions. Similar guidance documents on other conventions could provide greater certainty about the relevant unwritten rules. This article was originally published in The Conversation.

Associate Professor Ryan Goss. Read more. ANU College of. Join our mailing list First Name. Here the Senate Committee looking into the Pay TV case in provided the most official Australian study of ministerial accountability. Its report offers a nice list of factors which determine whether a resignation is appropriate. I leave you to savour that mixture of moralism and realpolitik. John Cain, the Premier of Victoria, once said:.

It is all politics, nothing else. The test of resignation is whether you want to go into the next election with a smelly bag of dead fish in the cart. That splendid public servant, Sir Geoffrey Yeend, whom I miss so much on this visit, wrote a surprising letter to The Canberra Times three years ago:. It is not for Parliament to determine the penalty for any ministerial shortcoming—and certainly not a chamber divided on party lines.

But the parliamentary process can expose a minister and enable the electorate, ministerial colleagues or the Prime Minister to make judgments about efficiency, competence and honesty. In Australia we have a long line of ministers and ex-ministers who have suffered from this exposure, ultimately if not immediately.

The first article I ever wrote about Australian politics was provoked by the VIP planes affair of and the non-resignation of Peter Howson. It ended:. What emerges from this case is surely that resignation must almost always be regarded as primarily a political matter.

In cases where there has been a gross breach of convention a minister must go because the political price of letting him stay would be prohibitive. But there are no absolute constitutional rules But, even if I downplay resignation, I am not a cynic.

In Australia, as in Britain, I have yet to meet a minister who doubts the extent to which his life is regulated by collective responsibility. I have yet to meet a senior official who denies the centrality of individual ministerial responsibility in everyday bureaucratic life. Now let me turn back to the light that Scott throws on individual ministerial responsibility.

Sir Richard declined to say whether any ministers should resign. But the Opposition demanded two scalps. They did not get it. Nor did they get the second scalp, that of William Waldegrave. As Minister at the Foreign Office he had in twenty-seven letters to MPs and in nineteen parliamentary questions denied the relaxation of the export guidelines which had allowed machine tools to go to Iraq.

It was generally accepted that Waldegrave was an honourable man but he had certainly misled the House. In circumstances where disclosure might be politically or administerably inconvenient, the balance struck by the Government comes down, time and time again, against full disclosure. The answers to PQs That failure was deliberate. A senior Foreign Office official told the Scott Inquiry that in —89 three ministers agreed to change the guidelines, but they:.

Their reasoning appears to have been that any announcement, however carefully drafted, would upset somebody. Arguably this was not misleading Parliament but it may be represented as culpably failing to inform Parliament of a significant change …. There is a handbook, once a secret but now in the public domain, called Questions of Procedure for Ministers.

One paragraph in the latest issue reads:. Ministers must not knowingly mislead Parliament and the public and should correct any inadvertent errors at the earliest opportunity.

They must be as open as possible with Parliament and the public, withholding information only when disclosure would not be in the public interest, which should be decided in accordance with established parliamentary convention, the law and any relevant Government Code of Practice. Out of evil cometh good. The Scott Report has a legacy.

The Commons Select Committee on the Public Service has produced a bi-partisan report which recommends that the House of Commons establish a code of conduct covering ministerial accountability. The report argues that Parliament itself should define what is required from ministers in answering questions:.

The report wants MPs to complain to the Ombudsman when departments withhold information and wants it to become standard practice for the Government to explain the grounds on which information has been withheld. The Conservative Party majority on the Committee would not go so far as to recommend a Freedom of Information Act or a parliamentary officer to investigate breaches of the new code.

But the report does suggest special parliamentary commissions to establish the facts on complex subjects, like the Arms-for-Iraq affair. All this is progress—a hopeful direct reaction to the Scott Report. It may go nowhere. Alas, it was not followed up. However, constitutional change is in the air in Britain. The Labour Party and the Liberal Democrats are very explicitly committed to it. Labour may well lose its enthusiasm, after, as it seems likely, it wins a majority next May.

Oppositions love to devise reform proposals, but once in power other priorities come to the fore. Debates over procedural change are time-consuming and the rewards of change are long term, not immediate. All governments of whatever party, and all people in executive positions are impatient with parliamentarians, prying, embarrassing, delaying the smooth implementation of their policies. Often parliamentary questioning is tiresome and unhelpful.

But often it is well judged. Governments are very far from infallible and it is healthy to have a critical Opposition and still more to have critical friends within the majority party to publicise objections to past policies, to present administration and to future proposals.

I have learnt in the past few weeks to admire much of what the Australian Senate does to scrutinise and improve the work of Labor and of Coalition governments, to make them more responsible.

In the current ferment over constitutional reform in Britain I am clear that we have a lot to learn from Australia. But I must not end on too humble a note. Your system is not perfect.

You in your turn have things to learn from Britain, even from the sour report of Sir Richard Scott. We have much to learn from Britain. It is the other way about. I would suggest to you that the Senate is a denial of the supremacy of the representative House. It is the denial of the primacy of the representative House.

It is an undemocratic body, and it is a cancellation of the Westminster system. It is the death certificate of the Westminster system, and there is no doubt about it. Dr Butler — Well, I would say that the Senate is a great deal more democratic than the House of Lords, first, and second, my point is not actually to argue about the supremacy of either Chamber, but I do think—I am certainly conscious having lived the last four weeks on the Senate side of this building—that there is a sense of genuine, I think honourable, pride among people working in the Senate committees, that they are doing a useful job in drawing attention to various matters.

I have not gone into the question of delaying or refusing supply or amending budgets, which are obviously arguable questions, and I would not want to give necessarily a clean bill of health to the status quo in that area. But I have no shadow of doubt that a large amount of useful criticism of government is done by the Senate, and that the Senate has, on many areas, exercised a thoroughly healthy restraint on what can be too arbitrary a government when you have the absolute authority of a disciplined party in a single chamber situation, or in a bi-cameral situation where you have total party discipline in both places.

I do not want a second chamber that is a rubber stamp of the first chamber, and therefore I have, I think, increasingly over the thirty years I have been coming to this country, come to think that the Senate, not a panacea, not a solution to everything, is an extraordinarily healthy influence and on the whole has been a much healthier influence in the period since the government lost its majority in the Senate.

Questioner — As another personal opinion, I most strongly disagree with the former speaker, but what I would like to ask you Sir, is whether you think the proposed New Zealand system, I think it is called the MMP system, will be an improvement in getting a representative Parliament?

Dr Butler — Well I think it is a nice paradox. The New Zealand situation is fascinating, and you will watch what happens on October 12 when New Zealand has this election. It is worth reminding you, because it does have a parallel interest for Australia, that both parties were getting pretty unpopular—they made promises then seemed to renege on them in the s.

One promise was they would set up a commission to look into the New Zealand electoral system—a judge and an academic and a couple of other people that used to report—which recommended something, it was called MMP, but it was more or less the same as the West German system, where half the seats are single member seats as now, and the other half of the seats are elected proportionally to produce a proportionally representative House.

Now, they had a referendum which voted 84 percent for a change in the system, and 70 percent for a change to this particular MMP system, which was then confirmed three years later by a referendum which voted something like 54—46 in favour of a change of system. It was so much the law of unintended consequences. The public was cross with the politicians so they forced on them a system which the politicians disapproved of. Both the great bulk of the Labour Party and the National Party disapproved of the change—which, in fact, is going to enormously enhance the amount of party politicking because no party will ever again in New Zealand get a clear majority under this system.

So, the rules of the game of New Zealand politics are being absolutely and fundamentally changed by this exercise in mass democracy. Now why I say I thought it had an interesting Australian parallel, if I may touch on delicate contemporary matters, is when you come to the republic question.

There is no doubt from the opinion polls that the mass of the Australian people when asked a simple question, want a directly elected president, but the politicians, if you are to move to a republic, want a president elected by a two-thirds majority of the two Houses sitting together, or some variant of that with states being involved, which would guarantee that whoever was nominated would be acceptable to majority and minority parties.

Some sort of compromise figure would emerge. Now, if you actually have a direct election, I cannot conceive that you would get anybody other than a politician elected.