Quality of Democracy
#16Key Findings
With an open, transparent electoral regime, Australia’s democracy falls into the upper-middle ranks (rank 18) in international comparison. Its score on this measure has declined by 0.5 points since 2014.
While civil rights and political liberties are generally well protected, anti-terrorism laws have become progressively stronger, prompting civil and human rights concerns. Severe COVID-19 lockdown measures imposed by state and territory governments, including bars to entry by residents of other states, were ruled constitutional by the High Court.
Asylum seekers are processed offshore, denying them the rights accorded to citizens. There is no restriction on private funding of campaigns, but recently passed laws sharply limit political donations from foreign government entities.
Anti-discrimination laws are generally strong. Same-sex marriage was recently approved by parliament. Corruption is generally well controlled. New media laws require digital platforms to pay publications for content they link to or display. Ownership of traditional media is highly concentrated.
While civil rights and political liberties are generally well protected, anti-terrorism laws have become progressively stronger, prompting civil and human rights concerns. Severe COVID-19 lockdown measures imposed by state and territory governments, including bars to entry by residents of other states, were ruled constitutional by the High Court.
Asylum seekers are processed offshore, denying them the rights accorded to citizens. There is no restriction on private funding of campaigns, but recently passed laws sharply limit political donations from foreign government entities.
Anti-discrimination laws are generally strong. Same-sex marriage was recently approved by parliament. Corruption is generally well controlled. New media laws require digital platforms to pay publications for content they link to or display. Ownership of traditional media is highly concentrated.
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How fair are procedures for registering candidates and parties?
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Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
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A few restrictions on election procedures discriminate against a small number of candidates and parties.
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Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
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Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
The Australian Electoral Commission (AEC) is an independent statutory authority that oversees the registration of candidates and parties according to the registration provisions of Part XI of the Commonwealth Electoral Act. The AEC is accountable for the conduct of elections to a cross-party parliamentary committee, the joint standing committee on electoral matters (JSCEM). JSCEM holds inquiries into and reports on any issues relating to electoral laws and practices and their administration.
There are no significant barriers to registration for any potential candidate or party. A party requires a minimum of 500 members who are on the electoral roll. A candidate for a federal election must be an Australian citizen, without dual citizenship, at least 18 years old and must not be serving a prison sentence of 12 months or more, or be an undischarged bankrupt or insolvent.
There were no changes to the laws relating to candidacy procedures in the period under review, and the process remains open, transparent and in line with international best practices.
There are no significant barriers to registration for any potential candidate or party. A party requires a minimum of 500 members who are on the electoral roll. A candidate for a federal election must be an Australian citizen, without dual citizenship, at least 18 years old and must not be serving a prison sentence of 12 months or more, or be an undischarged bankrupt or insolvent.
There were no changes to the laws relating to candidacy procedures in the period under review, and the process remains open, transparent and in line with international best practices.
To what extent do candidates and parties have fair access to the media and other means of communication?
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All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
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Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
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Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
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Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
There are no explicit barriers restricting access to the media for any political party or candidate. The media is generally independent, and highly activist. Furthermore, the public broadcasters – the Australian Broadcasting Commission (ABC) and the Special Broadcasting Service (SBS) – are required under the Australian Broadcasting Act to provide balanced coverage. In practice, the two dominant parties attract most coverage and it is somewhat difficult for minor parties to obtain media coverage. For example, the ABC has a practice of providing free airtime to each of the two main parties (Labor and the Liberal-National coalition) during the election campaign, a service not extended to other political parties. Print media is highly concentrated and biased toward the established parties. However, independent and minor-party senators do attract considerable media attention when the governing party does not have a majority in the Senate, and therefore requires their support to pass legislation. In recent decades, this has been the rule rather than the exception.
In terms of advertising, there are no restrictions on expenditures by candidates or parties, although no advertising is permitted in the three days up to and including polling day. Inequity in access to the media through advertising does arguably arise, as the governing party has the capacity to run advertising campaigns that nominally serve to provide information to the public about government policies and programs, but which are in fact primarily conducted to advance the electoral interests of the governing party.
In terms of advertising, there are no restrictions on expenditures by candidates or parties, although no advertising is permitted in the three days up to and including polling day. Inequity in access to the media through advertising does arguably arise, as the governing party has the capacity to run advertising campaigns that nominally serve to provide information to the public about government policies and programs, but which are in fact primarily conducted to advance the electoral interests of the governing party.
To what extent do all citizens have the opportunity to exercise their right of participation in national elections?
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All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
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The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
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While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
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The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
No changes to voting rights occurred in the review period. Registration on the electoral roll and voting are compulsory for all Australian citizens aged 18 years and over, although compliance is somewhat less than 100%, particularly among young people. Prisoners serving terms of three years or more are not entitled to vote in federal elections until after their release, but all other adult citizens can participate in federal elections and there is no evidence that any person has been prevented from voting.
Absentee voting and voting by mail are common and easily accessed. Australian citizens living abroad are eligible (but not required) to vote if they intend to return to Australia within six years.
In late 2021, the Morrison government sought to introduce voter identification requirements, ostensibly to reduce voter fraud. However, the Labor Party, Greens and a number of independents opposed the move on the basis that it represented an effort to suppress voting rather than an effort to reduce fraudulent voting.
Citations:
Proposed voter ID law: https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6811
Absentee voting and voting by mail are common and easily accessed. Australian citizens living abroad are eligible (but not required) to vote if they intend to return to Australia within six years.
In late 2021, the Morrison government sought to introduce voter identification requirements, ostensibly to reduce voter fraud. However, the Labor Party, Greens and a number of independents opposed the move on the basis that it represented an effort to suppress voting rather than an effort to reduce fraudulent voting.
Citations:
Proposed voter ID law: https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6811
To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?
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The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
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The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
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The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
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The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
All candidates in state and federal elections are entitled to public funding, subject to obtaining at least 4% of the first preference vote. The amount to be paid is calculated by multiplying the number of votes obtained by the election funding rate for that year. The funding rate is indexed every six months to increase in line with the consumer price index. For the 2019 election, it was AUD 0.2756 per eligible vote in both houses of parliament (House of Representatives and Senate). The total election funding paid in the 2019 federal election was AUD 69.6 million. The Australian Electoral Commission administers the distribution of funding and provides full public accounts of payments made.
For private funding, there are no limits on the value of donations, and while there are disclosure rules, they are not comprehensive and vary considerably across state governments. At the federal level, for example, candidates endorsed by a registered political party may roll their reporting of donations received into their annual party return, which, in the case of the 2019 federal election, was not due for release until October 2020. The AEC does, however, rigorously monitor and enforce the disclosure requirements in place. Several of the state and territory governments have in recent years legislated to improve disclosure requirements for private funding and in some cases limit donations. Other states, such as Victoria, introduced a non-binding Code of Conduct in October 2011.
In June 2017, an investigation by journalists into Chinese attempts to influence Australian political parties revealed that both major political parties accepted donations believed to have originated from the Chinese government. The prime minister subsequently ordered an inquiry into espionage and foreign interference laws. The conflict between Australia and China escalated in late 2017: the Australian government accused China of undue interference, while Chinese commentators have labeled Australia an agent of the United States.
Following the rise in public scrutiny of Chinese influence within the Australian political system, legislation was passed in November 2018 that bans donations of more than AUD 100 from foreign governments or state-owned enterprises to any “political actor” – including parties, individual candidates and significant political campaigners. Additionally, The Foreign Influence Transparency Scheme commenced on 10 December 2018. Its purpose is to provide public and governmental decision-makers with a view of the nature, level and extent of foreign influence on Australia’s government and political process. The scheme introduces registration obligations for persons and entities who have arrangements with or undertake certain activities on behalf of foreign principals.
Citations:
http://www.lo c.gov/law/help/campaign-finance/australia.php
https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1819/Quick_Guides/ElectionFundingStates
https://www.ag.gov.au/Integrity/foreign-influence-transparency-scheme/Pages/default.aspx
For private funding, there are no limits on the value of donations, and while there are disclosure rules, they are not comprehensive and vary considerably across state governments. At the federal level, for example, candidates endorsed by a registered political party may roll their reporting of donations received into their annual party return, which, in the case of the 2019 federal election, was not due for release until October 2020. The AEC does, however, rigorously monitor and enforce the disclosure requirements in place. Several of the state and territory governments have in recent years legislated to improve disclosure requirements for private funding and in some cases limit donations. Other states, such as Victoria, introduced a non-binding Code of Conduct in October 2011.
In June 2017, an investigation by journalists into Chinese attempts to influence Australian political parties revealed that both major political parties accepted donations believed to have originated from the Chinese government. The prime minister subsequently ordered an inquiry into espionage and foreign interference laws. The conflict between Australia and China escalated in late 2017: the Australian government accused China of undue interference, while Chinese commentators have labeled Australia an agent of the United States.
Following the rise in public scrutiny of Chinese influence within the Australian political system, legislation was passed in November 2018 that bans donations of more than AUD 100 from foreign governments or state-owned enterprises to any “political actor” – including parties, individual candidates and significant political campaigners. Additionally, The Foreign Influence Transparency Scheme commenced on 10 December 2018. Its purpose is to provide public and governmental decision-makers with a view of the nature, level and extent of foreign influence on Australia’s government and political process. The scheme introduces registration obligations for persons and entities who have arrangements with or undertake certain activities on behalf of foreign principals.
Citations:
http://www.lo c.gov/law/help/campaign-finance/australia.php
https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1819/Quick_Guides/ElectionFundingStates
https://www.ag.gov.au/Integrity/foreign-influence-transparency-scheme/Pages/default.aspx
Do citizens have the opportunity to take binding political decisions when they want to do so?
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Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
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Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
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Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
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Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Citizens do not have the legal right to propose and take binding decisions on matters of importance to them at any level of government. Since the establishment of the Federation in 1901, citizens have voted on specific issues 44 times, with eight of those succeeding. They cannot initiate the process. Some of these referendums have covered important issues, such as the 1967 referendum on the status of indigenous people in Australian society. However, no referendum has succeeded since 1977. National referendums are mandatory in the case of parliament-proposed changes to the constitution. Constitutional amendments must be approved in a referendum and the result is binding. In addition, states and territories may also hold referendums on issues other than constitutional amendments.
The Citizen Initiated Referendum Bill, which would have enabled citizens of Australia to initiate legislation for the holding of a referendum to alter the constitution, was presented and read in the Senate in 2013, but did not proceed and lapsed at the end of the 43rd parliament in September 2013.
Citations:
http://www.aph.gov.au/~/media/05%20 About%20Parliament/54%20Parliamenta ry%20Depts/544%20Parliamentary%20Library/Handbook/43rd_PH_Part5.ashx
Williams, George/Hume, David, 2012, People Power: The History and Future of the Referendum in Australia
Citizen Initiated Referendum Bill 2013, No.
, 2013 (Senator Madigan), A Bill for an act to enable the citizens of Australia to initiate legislation for the holding of a referendum in relation to altering the constitution, and for related purposes, http://www.restoreaustralia.org.au/petition-ups/CIR%20Bill.pdf
Australian Election Commission, Referendum dates and results, http://www.aec.gov.au/Elections/referendums/Referendum_Dates_and_Results.htm
The Citizen Initiated Referendum Bill, which would have enabled citizens of Australia to initiate legislation for the holding of a referendum to alter the constitution, was presented and read in the Senate in 2013, but did not proceed and lapsed at the end of the 43rd parliament in September 2013.
Citations:
http://www.aph.gov.au/~/media/05%20 About%20Parliament/54%20Parliamenta ry%20Depts/544%20Parliamentary%20Library/Handbook/43rd_PH_Part5.ashx
Williams, George/Hume, David, 2012, People Power: The History and Future of the Referendum in Australia
Citizen Initiated Referendum Bill 2013, No.
, 2013 (Senator Madigan), A Bill for an act to enable the citizens of Australia to initiate legislation for the holding of a referendum in relation to altering the constitution, and for related purposes, http://www.restoreaustralia.org.au/petition-ups/CIR%20Bill.pdf
Australian Election Commission, Referendum dates and results, http://www.aec.gov.au/Elections/referendums/Referendum_Dates_and_Results.htm
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To what extent are the media independent from government?
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Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
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The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
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The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/market access for private media.
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Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Media organizations – both public and private – are largely independent from government, although the main public broadcaster is accountable to a board of directors appointed by the government. Censorship has mainly been restricted to material of a violent or sexual nature. However, there are several potentially significant threats to media independence. For one, regulation of ownership of media is politicized and some owners are regarded as favorable to the incumbent government.
Various pieces of recently passed legislation also impinge on media freedom. The Anti-Terrorism Act 2005 allows for control orders to restrict freedom of speech by individuals and the freedom of the media to publish their views. The National Security Legislation Amendment Bill 2014 restricts the ability of journalists to report on secret intelligence operations, with up to 10 years in jail imposed for exposing errors made by security agencies. Further, the Data Retention Act makes it almost impossible for journalists to protect government sources; the Foreign Fighters Act potentially criminalizes stories covering militant extremists; and the most recently passed measure, the Foreign Interference and Espionage Act, significantly broadens the scope of information defined as “classified.”
Recent events have shown that the government is prepared to use these laws to restrict media freedom. Federal police raids on journalists’ homes and media offices have clearly been driven by political motives rather than by national-security concerns. This has given rise to a concerted campaign by journalists and media organizations for changes to legislation that would protect the media and whistleblowers, with proponents arguing that the country’s democratic functioning is at stake. In response to raids on a journalist’s home and the offices of the ABC, Australian newspapers appeared with blackened front pages in October 2019.
Citations:
http://www.theaustralian.com.au/business/media/call-to-scrap-security-laws-that-could-jail-journos/news-story/0b7b4d888751c0b11dc093ccb11c07bd
http://www.pressfreedom.org.au/press-media-alliance-freedom-report/introduction/foreword
https://pressfreedom.org.au/the-publics-right-to-know-3aee204f9036
https://freedomhouse.org/report/freedom-press/2015/australia
https://www.theguardian.com/media/2021/may/19/australia-needs-to-strengthen-press-freedom-laws-and-promote-transparency-inquiry-finds
http://www.abc.net.au/news/2017-12-14/china-backlash-australia-questions-of-political-interference/9258462
https://www.bbc.com/news/world-australia-50119559
Various pieces of recently passed legislation also impinge on media freedom. The Anti-Terrorism Act 2005 allows for control orders to restrict freedom of speech by individuals and the freedom of the media to publish their views. The National Security Legislation Amendment Bill 2014 restricts the ability of journalists to report on secret intelligence operations, with up to 10 years in jail imposed for exposing errors made by security agencies. Further, the Data Retention Act makes it almost impossible for journalists to protect government sources; the Foreign Fighters Act potentially criminalizes stories covering militant extremists; and the most recently passed measure, the Foreign Interference and Espionage Act, significantly broadens the scope of information defined as “classified.”
Recent events have shown that the government is prepared to use these laws to restrict media freedom. Federal police raids on journalists’ homes and media offices have clearly been driven by political motives rather than by national-security concerns. This has given rise to a concerted campaign by journalists and media organizations for changes to legislation that would protect the media and whistleblowers, with proponents arguing that the country’s democratic functioning is at stake. In response to raids on a journalist’s home and the offices of the ABC, Australian newspapers appeared with blackened front pages in October 2019.
Citations:
http://www.theaustralian.com.au/business/media/call-to-scrap-security-laws-that-could-jail-journos/news-story/0b7b4d888751c0b11dc093ccb11c07bd
http://www.pressfreedom.org.au/press-media-alliance-freedom-report/introduction/foreword
https://pressfreedom.org.au/the-publics-right-to-know-3aee204f9036
https://freedomhouse.org/report/freedom-press/2015/australia
https://www.theguardian.com/media/2021/may/19/australia-needs-to-strengthen-press-freedom-laws-and-promote-transparency-inquiry-finds
http://www.abc.net.au/news/2017-12-14/china-backlash-australia-questions-of-political-interference/9258462
https://www.bbc.com/news/world-australia-50119559
To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?
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Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
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Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
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Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
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Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
Australia has a very high degree of concentration of media ownership, with the ownership of national and state newspapers being divided mainly between two companies: Rupert Murdoch’s News Corporation and the John Fairfax Group. The concentration of newspaper ownership has resulted in a low level of diversity in reporting and editorial positions. There is slightly more diversity in broadcast media, with the government funding two bodies, the Australian Broadcasting Corporation and the Special Broadcasting Service, to provide a balance to the main commercial outlets. There are also three main commercial companies, none of which is politically aligned.
The potential for greater concentration of media ownership increased following the passing in 2017 of amendments to the Broadcasting Services Act 1992. The amendments repeal two regulations that prevented any single person from controlling commercial television licenses that broadcast to more than 75% of the federal population or controlling more than two regulated forms of media (i.e., commercial radio, commercial TV or associated newspapers) in one commercial radio license area. Following the passage of this legislation, in mid-2018 a merger was announced between Channel 9, one of the three commercial free-to-air television networks, and Fairfax Media, the second-largest newspaper proprietor and owner of various radio stations.
A positive development in 2021 was the government’s success in implementing a news media mandatory bargaining code that requires digital platforms – especially Google and Facebook – to pay news media companies for content they link to or display. This, in principle, helps to promote media plurality by increasing the viability of a broader number of news media outlets. However, there has been criticism that the code does little for small and regional news media operators. The value of payments from Google and Facebook under the code is not known because the agreements are “commercial in-confidence.”
Citations:
How the Fairfax takeover will further concentrate Australia’s media. The Guardian. 2 August 2018. Available at https://www.theguardian.com/news/datablog/2018/aug/03/the-fairfax-takeover-and-how-it-will-worsen-australias-media-industry-squeeze
https://www.acma.gov.au/news-media-bargaining-code
https://theconversation.com/is-the-news-media-bargaining-code-fit-for-purpose-172224
The potential for greater concentration of media ownership increased following the passing in 2017 of amendments to the Broadcasting Services Act 1992. The amendments repeal two regulations that prevented any single person from controlling commercial television licenses that broadcast to more than 75% of the federal population or controlling more than two regulated forms of media (i.e., commercial radio, commercial TV or associated newspapers) in one commercial radio license area. Following the passage of this legislation, in mid-2018 a merger was announced between Channel 9, one of the three commercial free-to-air television networks, and Fairfax Media, the second-largest newspaper proprietor and owner of various radio stations.
A positive development in 2021 was the government’s success in implementing a news media mandatory bargaining code that requires digital platforms – especially Google and Facebook – to pay news media companies for content they link to or display. This, in principle, helps to promote media plurality by increasing the viability of a broader number of news media outlets. However, there has been criticism that the code does little for small and regional news media operators. The value of payments from Google and Facebook under the code is not known because the agreements are “commercial in-confidence.”
Citations:
How the Fairfax takeover will further concentrate Australia’s media. The Guardian. 2 August 2018. Available at https://www.theguardian.com/news/datablog/2018/aug/03/the-fairfax-takeover-and-how-it-will-worsen-australias-media-industry-squeeze
https://www.acma.gov.au/news-media-bargaining-code
https://theconversation.com/is-the-news-media-bargaining-code-fit-for-purpose-172224
To what extent can citizens obtain official information?
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Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
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Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
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Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
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Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
Since 1982, access to government information has been largely regulated by the Freedom of Information Act (FOI Act). Under this act, applications for information from the government must be made in writing and agencies must respond within 30 days.
The original FOI Act granted ministries considerable discretion and defined a number of exemptions, including for cabinet documents; internal working documents; documents affecting national security, international relations or relations with states; documents affecting enforcement of law and protection of public safety; documents affecting federal financial or property interests; documents relating to business affairs or research; and documents affecting the national economy.
Compliance with the FOI Act was heavily and widely criticized in the past, and the Labor government elected in 2007 passed several pieces of legislation and new regulations that sought to improve community access to government information. This included: the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009; the Freedom of Information (Fees and Charges) Amendment Regulations 2010; the Australian Information Commissioner Act 2010; and the Freedom of Information Amendment (Reform) Act 2010, under which requirements to publish information were increased as of 1 May 2011.
Citations:
Attorney General’s Department web site describing the 2009 and 2010 Freedom of Information reforms: http://www.ag.gov.au/RightsAndProtections/FOI/Pages/Freedomofinformati onreforms.aspx
http://www.oaic.gov.au/images/documents/freedom-of-information/app lying-the-foi-act/foi-guidelines/pa rt2_Scope_application_FOI_Act_v1.3.pdf
Statement by the Australian Information Commissioner, Freedom of Information Commissioner and Privacy Commissioner on the government’s decision to abolish the Office of the Australian Information Commissioner: http://www.oaic.gov.au/news-and-events/statements/australian-governments-budget-decision-to-disband-oaic/australian-government-s-budget-decision-to-disband-oaic
https://www.smh.com.au/environment/conservation/timber-advocates-use-freedom-of-information-to-access-emails-from-scientist-and-journalists-20211116-p599ee.html
The original FOI Act granted ministries considerable discretion and defined a number of exemptions, including for cabinet documents; internal working documents; documents affecting national security, international relations or relations with states; documents affecting enforcement of law and protection of public safety; documents affecting federal financial or property interests; documents relating to business affairs or research; and documents affecting the national economy.
Compliance with the FOI Act was heavily and widely criticized in the past, and the Labor government elected in 2007 passed several pieces of legislation and new regulations that sought to improve community access to government information. This included: the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009; the Freedom of Information (Fees and Charges) Amendment Regulations 2010; the Australian Information Commissioner Act 2010; and the Freedom of Information Amendment (Reform) Act 2010, under which requirements to publish information were increased as of 1 May 2011.
Citations:
Attorney General’s Department web site describing the 2009 and 2010 Freedom of Information reforms: http://www.ag.gov.au/RightsAndProtections/FOI/Pages/Freedomofinformati onreforms.aspx
http://www.oaic.gov.au/images/documents/freedom-of-information/app lying-the-foi-act/foi-guidelines/pa rt2_Scope_application_FOI_Act_v1.3.pdf
Statement by the Australian Information Commissioner, Freedom of Information Commissioner and Privacy Commissioner on the government’s decision to abolish the Office of the Australian Information Commissioner: http://www.oaic.gov.au/news-and-events/statements/australian-governments-budget-decision-to-disband-oaic/australian-government-s-budget-decision-to-disband-oaic
https://www.smh.com.au/environment/conservation/timber-advocates-use-freedom-of-information-to-access-emails-from-scientist-and-journalists-20211116-p599ee.html
Graph View
To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?
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All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
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The state respects and protects rights, with few infringements. Courts provide protection.
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Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
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State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
Australia is the only major established democracy which does not have a bill of rights. Civil rights are protected through a significant body of legislation and by the constitution, which contains certain implied rights which are subject to interpretation by the High Court. This was perhaps made most clear to the Australian people when state and territory governments imposed severe lockdown restrictions that were ruled by courts to be legal.
While Australia’s record of protecting human rights is internationally regarded as strong, criticism continues to be voiced regarding treatment of the indigenous population and the respect accorded to asylum-seekers’ civil rights. Both major parties support the policy of offshore processing of asylum-seekers, which is of course denying them rights enjoyed by Australian citizens.
Concerns have been raised about counterterrorism legislation. The Anti-Terrorism Act 2005 includes a variety of individual powers, including detention for up to 14 days, and restrictions on the movement, activities and contacts of persons subject to “control orders,” whether or not those persons have been accused or convicted of any offense. The coalition government has implemented four further tranches of legislation since October 2014. These include the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, which requires telecommunications service providers to retain and secure telecommunications metadata for two years. 22 agencies, including the Australian security intelligence organization, state police forces, the Australian crime commission and the Australian taxation office are able to view the data without a warrant. The act is opposed by a wide range of groups, including human rights organizations and civil liberties groups, on the basis that it represents an excessive encroachment on Australians’ privacy. Most recently, the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 grants the government explicit powers to revoke Australian citizenship from dual citizens convicted of engaging in terrorist-related activities. The bill has also been criticized for being unconstitutional and for allowing possible retrospective application.
In late 2017, the government announced new laws making it a criminal offense to be in possession of instructional terrorist material or to engage in terrorism hoaxes, and reached agreement with the states and territories to develop national facial biometric matching capability. And in December 2018, the government passed legislation that imposes new requirements on organizations to assist law-enforcement and security agencies with requests to access information, introduces new computer access warrants that enable law enforcement to covertly obtain evidence directly from a device, and increases the power of law enforcement to access data through search and seizure warrants. Opponents argue that these measures represent unjustified infringements on civil liberties.
Citations:
http://www.amnesty.org.au/news/comments/36221/
Leonard, P (February–March 2015). “The metadata retention debate rages on” Internet Law Bulletin: http://www.gtlaw.com.au/wp-content/uploads/The-Metadata-Retention-Debate-rages-on.pdf
https://theconversation.com/improved-citizenship-bill-still-invites-criticism-and-high-court-challenges-47153
https://apnews.com/article/asia-pacific-australia-lifestyle-travel-coronavirus-pandemic-a1d239e80be05c8cf393ec67d1b6cce2
https://www.theguardian.com/australia-news/2021/feb/24/clive-palmer-v-western-australia-border-ban-justified-by-risks-of-covid-19-high-court-reveals
While Australia’s record of protecting human rights is internationally regarded as strong, criticism continues to be voiced regarding treatment of the indigenous population and the respect accorded to asylum-seekers’ civil rights. Both major parties support the policy of offshore processing of asylum-seekers, which is of course denying them rights enjoyed by Australian citizens.
Concerns have been raised about counterterrorism legislation. The Anti-Terrorism Act 2005 includes a variety of individual powers, including detention for up to 14 days, and restrictions on the movement, activities and contacts of persons subject to “control orders,” whether or not those persons have been accused or convicted of any offense. The coalition government has implemented four further tranches of legislation since October 2014. These include the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, which requires telecommunications service providers to retain and secure telecommunications metadata for two years. 22 agencies, including the Australian security intelligence organization, state police forces, the Australian crime commission and the Australian taxation office are able to view the data without a warrant. The act is opposed by a wide range of groups, including human rights organizations and civil liberties groups, on the basis that it represents an excessive encroachment on Australians’ privacy. Most recently, the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 grants the government explicit powers to revoke Australian citizenship from dual citizens convicted of engaging in terrorist-related activities. The bill has also been criticized for being unconstitutional and for allowing possible retrospective application.
In late 2017, the government announced new laws making it a criminal offense to be in possession of instructional terrorist material or to engage in terrorism hoaxes, and reached agreement with the states and territories to develop national facial biometric matching capability. And in December 2018, the government passed legislation that imposes new requirements on organizations to assist law-enforcement and security agencies with requests to access information, introduces new computer access warrants that enable law enforcement to covertly obtain evidence directly from a device, and increases the power of law enforcement to access data through search and seizure warrants. Opponents argue that these measures represent unjustified infringements on civil liberties.
Citations:
http://www.amnesty.org.au/news/comments/36221/
Leonard, P (February–March 2015). “The metadata retention debate rages on” Internet Law Bulletin: http://www.gtlaw.com.au/wp-content/uploads/The-Metadata-Retention-Debate-rages-on.pdf
https://theconversation.com/improved-citizenship-bill-still-invites-criticism-and-high-court-challenges-47153
https://apnews.com/article/asia-pacific-australia-lifestyle-travel-coronavirus-pandemic-a1d239e80be05c8cf393ec67d1b6cce2
https://www.theguardian.com/australia-news/2021/feb/24/clive-palmer-v-western-australia-border-ban-justified-by-risks-of-covid-19-high-court-reveals
To what extent does the state concede and protect political liberties?
10
9
9
All state institutions concede and effectively protect political liberties.
8
7
6
7
6
All state institutions for the most part concede and protect political liberties. There are only few infringements.
5
4
3
4
3
State institutions concede political liberties but infringements occur regularly in practice.
2
1
1
Political liberties are unsatisfactory codified and frequently violated.
Political liberty is strongly protected by the courts, but is not unfettered. As in other Western countries, anti-terrorist legislation has raised a major challenge to political liberties. The Anti-Terrorism Act 2005 makes any act of sedition illegal, such as urging the overthrow of the government by violence or force, and outlaws any organization that advocates the use of violence or force for that end. One of the main criticisms of the legislation is that it lacks sufficient judicial oversight.
Freedom of speech, religion, the right to organize and the right to strike are not constitutionally guaranteed. However, various High Court judgments, and Commonwealth and state legislative provisions provide at least some protection in this regard.
Federal police raids on a journalist’s home and a broadcaster’s office in June 2019, purportedly to protect national security (but in fact very clearly motivated by political concerns), have been interpreted by many as an increased willingness by the government to suppress whistleblowers and restrict the media’s ability to hold the government to account. Some also regard the design and administration of defamation laws as hampering political liberties, as they act in practice to protect governments, companies and powerful people from scrutiny.
Citations:
https://humanrights.gov.au/
https://www.fairwork.gov.au/tools-and-resources/fact-sheets/rights-and-obligations/industrial-action
https://www.npc.org.au/news/statement-on-the-afp-raids/
Freedom of speech, religion, the right to organize and the right to strike are not constitutionally guaranteed. However, various High Court judgments, and Commonwealth and state legislative provisions provide at least some protection in this regard.
Federal police raids on a journalist’s home and a broadcaster’s office in June 2019, purportedly to protect national security (but in fact very clearly motivated by political concerns), have been interpreted by many as an increased willingness by the government to suppress whistleblowers and restrict the media’s ability to hold the government to account. Some also regard the design and administration of defamation laws as hampering political liberties, as they act in practice to protect governments, companies and powerful people from scrutiny.
Citations:
https://humanrights.gov.au/
https://www.fairwork.gov.au/tools-and-resources/fact-sheets/rights-and-obligations/industrial-action
https://www.npc.org.au/news/statement-on-the-afp-raids/
How effectively does the state protect against different forms of discrimination?
10
9
9
State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
8
7
6
7
6
State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
5
4
3
4
3
State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
2
1
1
The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Australia has developed a substantial body of anti-discrimination legislation, covering sex, race, ethnicity, marital status, pregnancy and disability. The body charged with overseeing this legislation, the Australian Human Rights Commission, is a statutory authority. Further, the Australian parliament passed a bill on 7 December 2017 that allows same-sex marriage. That bill followed a non-binding referendum that was supported by 61.6% of Australian voters.
In November 2021, the government sought to pass the Religious Discrimination Act, which would ostensibly prohibit religious discrimination. However, the proposed exemptions would in fact legalize discrimination on the basis of religion, for example, by permitting a (religious) school to dismiss an employee because of their faith. It is also possible that the legislation would permit discrimination on the basis of other, normally protected traits, such as sex, sexuality and marital status. The bill currently appears unlikely to be passed in the Senate in its current form.
Citations:
http://abcnews.go.com/International/australian-parliament-approves-sex-marriage-lengthy-national-debate/story?id=51637900
https://www.abc.net.au/news/2021-11-24/government-religious-discrimination-bill-explained/100645502
https://www.abc.net.au/news/2021-06-03/racism-asian-australians-korea-covid-stereotypes/100181468
In November 2021, the government sought to pass the Religious Discrimination Act, which would ostensibly prohibit religious discrimination. However, the proposed exemptions would in fact legalize discrimination on the basis of religion, for example, by permitting a (religious) school to dismiss an employee because of their faith. It is also possible that the legislation would permit discrimination on the basis of other, normally protected traits, such as sex, sexuality and marital status. The bill currently appears unlikely to be passed in the Senate in its current form.
Citations:
http://abcnews.go.com/International/australian-parliament-approves-sex-marriage-lengthy-national-debate/story?id=51637900
https://www.abc.net.au/news/2021-11-24/government-religious-discrimination-bill-explained/100645502
https://www.abc.net.au/news/2021-06-03/racism-asian-australians-korea-covid-stereotypes/100181468
Graph View
To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?
10
9
9
Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
8
7
6
7
6
Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
5
4
3
4
3
Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
2
1
1
Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
Governments and administrations generally adhere to existing laws and respect court decisions. That said, jurisdictional uncertainty between the federal and state governments is an issue that means the legality of some actions by the executive is tested in court and on occasion found not to be legal. Two recent cases highlighting this uncertainty are a 2013 High Court challenge to the constitutionality of the Minerals Resources Rent Tax (MRRT) introduced by the federal government in 2012, and a 2014 High Court challenge to the constitutionality of federal funding of school chaplains. The High Court ruled the MRRT constitutional, but ruled the chaplaincy program unconstitutional.
The COVID-19 pandemic saw state governments assert their considerable powers under the constitution. Notably, state governments closed their borders to residents of other states and territories, which many people had thought was unconstitutional, but which the High Court found was in fact constitutional.
Citations:
Michael Crommelin, ‘The MRRT Survives, For Now: Fortescue Metals Group Ltd v Commonwealth’ on Opinions on High (16 September 2013)
Gabrielle Appleby ‘Commonwealth left scrambling by school chaplaincy decision’ The Conversation, 19 June 2014: https://theconversation.com/commonwealth-left-scrambling-by-school-chaplaincy-decision-27935
https://www.abc.net.au/news/2020-11-06/clive-palmer-loses-high-court-challenge-against-wa-border-close/12855286
The COVID-19 pandemic saw state governments assert their considerable powers under the constitution. Notably, state governments closed their borders to residents of other states and territories, which many people had thought was unconstitutional, but which the High Court found was in fact constitutional.
Citations:
Michael Crommelin, ‘The MRRT Survives, For Now: Fortescue Metals Group Ltd v Commonwealth’ on Opinions on High (16 September 2013)
Gabrielle Appleby ‘Commonwealth left scrambling by school chaplaincy decision’ The Conversation, 19 June 2014: https://theconversation.com/commonwealth-left-scrambling-by-school-chaplaincy-decision-27935
https://www.abc.net.au/news/2020-11-06/clive-palmer-loses-high-court-challenge-against-wa-border-close/12855286
To what extent do independent courts control whether government and administration act in conformity with the law?
10
9
9
Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
8
7
6
7
6
Independent courts usually manage to control whether the government and administration act in conformity with the law.
5
4
3
4
3
Courts are independent, but often fail to ensure legal compliance.
2
1
1
Courts are biased for or against the incumbent government and lack effective control.
There is strong judicial oversight of executive decisions. Judicial oversight occurs through a well-developed system of administrative courts and through the High Court. That said, the scope for judicial review of government actions is very much affected by legislation allowing for or denying such review. Nonetheless, government and administrative decisions are frequently reviewed by courts. There is a strong tradition of independent judicial review of executive decisions. This tradition stems to a significant extent from the evolution of administrative law, which has spawned an administrative courts process through which complainants may seek a review of executive action. The executive branch generally has very little power to remove judges, which further contributes to the independence of the judiciary. Furthermore, there are many instances in which courts have ruled against the executive. The executive has in the past generally accepted the decisions of the courts or appealed to a higher court, rather than attempting to circumvent the decision.
To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?
10
9
9
Justices are appointed in a cooperative appointment process with special majority requirements.
8
7
6
7
6
Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
5
4
3
4
3
Justices are exclusively appointed by different bodies without special majority requirements.
2
1
1
All judges are appointed exclusively by a single body irrespective of other institutions.
The High Court is the final court of appeal for all federal and state courts. While the constitution lays out various rules for the positions of High Court justices, such as tenure and retirement, there are no guidelines for their appointment – apart from them being appointed by the head of state, the governor-general. Prior to 1979, the appointment of High Court justices was largely a matter for the federal government, with little or no consultation with the states and territories. The High Court Act 1979 introduced the requirement for consultation between the state attorneys-general, which are the chief law officers at the state level, and the federal attorney-general. While the system is still not transparent, it does appear that there are opportunities for the states to nominate candidates for a vacant position. However, there has never been a High Court judge from either South Australia or Tasmania, which has been a long-standing bone of contention. Considering the importance of the High Court for the settlement of federal-state relations, there has been concern that judges with a strong federal perspective are regularly being preferred. From the perspective of the public, the appointment process is secret and the public is rarely consulted when a vacancy occurs. In recent years, a debate has emerged whether diversity, as well as representativeness, should be considered during the selection of judges.
Citations:
http://www.smh.com.au/federal-politics/political-opinion/easier-to-pick-a-melbourne-cup-winner-than-next-high-court-judge-20120312-1uwds.html
http://www.hcourt.gov.au/justices/about-the-justices
https://www.ruleoflaw.org.au/australia-high-court-appointment/
Citations:
http://www.smh.com.au/federal-politics/political-opinion/easier-to-pick-a-melbourne-cup-winner-than-next-high-court-judge-20120312-1uwds.html
http://www.hcourt.gov.au/justices/about-the-justices
https://www.ruleoflaw.org.au/australia-high-court-appointment/
To what extent are public officeholders prevented from abusing their position for private interests?
10
9
9
Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
8
7
6
7
6
Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
5
4
3
4
3
Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
2
1
1
Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Prevention of corruption is reasonably effective. Federal and state governments have established a variety of bodies to investigate corruption by politicians and public officials. Many of these bodies have the powers of Royal Commissions, which means that they can summon witnesses to testify. At the federal level, these bodies include the Australian Crime Commission, charged with combating organized crime and public corruption; the Australian Securities and Investments Commission, the main corporate regulator; and the Australian National Audit Office.
Nonetheless, significant potential for corruption persists. In the 2019 election campaign, the Morrison government pledged to introduce a Commonwealth Integrity Commission, a centralized, specialist center for investigating corruption in the public sector, but has so far failed to do so. There are also concerns that the body currently being contemplated by the government will not have sufficient powers to adequately counter corruption.
Questions of propriety are also occasionally raised with respect to the awarding of government contracts. Tender processes are not always open, and “commercial-in-confidence” is often cited as the reason for non-disclosure of contracts with private sector firms, raising concerns of favorable treatment extended to friends or favored constituents. Questions of inappropriate personal gain have also been raised when ministers leave parliament to immediately take up positions in companies they had been responsible for regulating – most recently occurring after the May 2019 election.
Australia has been reluctant to address cross-border corruption. A notable exception is the recent action of Australian federal police, which in October 2014 seized assets of allegedly corrupt Chinese officials. This joint operation with Chinese authorities has been a novelty.
Members of the Senate and the House of Representatives are required to report on their financial interests within 28 days of taking the oath of office. These registers were adopted by resolution of the House of Representatives on 8 October 1984 and the Senate on 17 March 1994. However, there have been instances of failure to comply with this requirement, usually with no consequences for the member concerned. Ministers are further subject to a ministerial code of conduct, introduced in 1996. However, this code has no legal standing, and is therefore unenforceable.
Citations:
https://www.ag.gov.au/integrity/consultations/commonwealth-integrity-commission-consultation-draft
https://www.lawcouncil.asn.au/resources/submissions/commonwealth-integrity-commission-proposed-reforms
http://www.theguardian.com/australia-news/2014/oct/23/australia-slow-to-tackle-international-corruption-with-just-one-case-in-court
http://www.transparency.org/cpi2015
Nonetheless, significant potential for corruption persists. In the 2019 election campaign, the Morrison government pledged to introduce a Commonwealth Integrity Commission, a centralized, specialist center for investigating corruption in the public sector, but has so far failed to do so. There are also concerns that the body currently being contemplated by the government will not have sufficient powers to adequately counter corruption.
Questions of propriety are also occasionally raised with respect to the awarding of government contracts. Tender processes are not always open, and “commercial-in-confidence” is often cited as the reason for non-disclosure of contracts with private sector firms, raising concerns of favorable treatment extended to friends or favored constituents. Questions of inappropriate personal gain have also been raised when ministers leave parliament to immediately take up positions in companies they had been responsible for regulating – most recently occurring after the May 2019 election.
Australia has been reluctant to address cross-border corruption. A notable exception is the recent action of Australian federal police, which in October 2014 seized assets of allegedly corrupt Chinese officials. This joint operation with Chinese authorities has been a novelty.
Members of the Senate and the House of Representatives are required to report on their financial interests within 28 days of taking the oath of office. These registers were adopted by resolution of the House of Representatives on 8 October 1984 and the Senate on 17 March 1994. However, there have been instances of failure to comply with this requirement, usually with no consequences for the member concerned. Ministers are further subject to a ministerial code of conduct, introduced in 1996. However, this code has no legal standing, and is therefore unenforceable.
Citations:
https://www.ag.gov.au/integrity/consultations/commonwealth-integrity-commission-consultation-draft
https://www.lawcouncil.asn.au/resources/submissions/commonwealth-integrity-commission-proposed-reforms
http://www.theguardian.com/australia-news/2014/oct/23/australia-slow-to-tackle-international-corruption-with-just-one-case-in-court
http://www.transparency.org/cpi2015