Horizontal Accountability
#17Key Findings
In the category of horizonal accountability, Australia falls into the sample’s middle ranks (rank 17).
Australia has a well-established and highly effective judicial system, featuring broad independence from the executive. While there is no bill of rights, civil rights are protected by legislation and the constitution. These rights are generally respected, although protest laws have been tightened.
The incidence of explicit corruption is low, although there is a widespread perception of corruption in public life. Political financing practices and government contracts processes raise concerns about favorable treatment. A new anticorruption commission has been created.
Parliamentarians have adequate resources at their disposal to monitor government activity, but parliaments’ capacities have declined relative to the executive.
Australia has a well-established and highly effective judicial system, featuring broad independence from the executive. While there is no bill of rights, civil rights are protected by legislation and the constitution. These rights are generally respected, although protest laws have been tightened.
The incidence of explicit corruption is low, although there is a widespread perception of corruption in public life. Political financing practices and government contracts processes raise concerns about favorable treatment. A new anticorruption commission has been created.
Parliamentarians have adequate resources at their disposal to monitor government activity, but parliaments’ capacities have declined relative to the executive.
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Is there an independent audit office? To what extent is it capable of exercising effective oversight?
10
9
9
There exists an effective and independent audit office.
8
7
6
7
6
There exists an effective and independent audit office, but its role is somewhat limited.
5
4
3
4
3
There exists an independent audit office, but its role is considerably limited.
2
1
1
There is no independent and effective audit office.
Australia has well-resourced audit offices at federal and state levels, ensuring effectiveness in this area. The Australian National Audit Office (ANAO), led by the Auditor-General, audits Commonwealth agencies’ financial statements and conducts performance assessments. Parallel institutions exist at the state level to monitor state agencies’ activities. While there is little evidence of corruption or extreme maladministration in the public sector, commentary suggests some areas of weakness, including procurement, cybersecurity, and grants administration (Macdonald 2022). Furthermore, it has been observed that on a few occasions there have been efforts by an Australian government to obstruct the oversight activities of the Auditor-General by resorting to the doctrine of cabinet confidentiality (Patrick 2023). However, this practice and line of argument is unusual.
Citations:
Macdonald, A. 2022. “ANAO Auditor-General Says Public Sector Regularly Falls Short in Three Areas.” The Mandarin August 26. https://www.themandarin.com.au/198283-anao-auditor-general-says-public-sector-regularly-falls-short-in-three-areas/
Patrick, R. 2023. “If the Premier Won’t Be Transparent, the Auditor-General Should Take Action.” In Daily October 9. https://indaily.com.au/opinion/2023/10/09/if-the-premier-wont-be-transparent-the-auditor-general-should-take-action
Citations:
Macdonald, A. 2022. “ANAO Auditor-General Says Public Sector Regularly Falls Short in Three Areas.” The Mandarin August 26. https://www.themandarin.com.au/198283-anao-auditor-general-says-public-sector-regularly-falls-short-in-three-areas/
Patrick, R. 2023. “If the Premier Won’t Be Transparent, the Auditor-General Should Take Action.” In Daily October 9. https://indaily.com.au/opinion/2023/10/09/if-the-premier-wont-be-transparent-the-auditor-general-should-take-action
Is there an independent authority that effectively holds government offices accountable for their handling of data protection and privacy issues?
10
9
9
An independent and effective data protection authority exists.
8
7
6
7
6
An independent and effective data protection authority exists, but its role is somewhat limited.
5
4
3
4
3
A data protection authority exists, but both its independence and effectiveness are considerably limited.
2
1
1
There is no effective and independent data protection office.
The Office of the Australian Information Commissioner (OAIC) supports privacy regulation. The agency is independent and effective, despite challenges posed by recent high-profile data breaches highlighting weaknesses in the information protection architecture across private and public sector organizations (Tran 2023).
Citations:
Tran, D. 2023. “Data Breaches Affecting Millions of Australians Are on the Rise, Information Commissioner Says.” ABC News March 1. https://www.abc.net.au/news/2023-03-01/data-breaches-revealed-by-australian-information-commissioner/102039710
Citations:
Tran, D. 2023. “Data Breaches Affecting Millions of Australians Are on the Rise, Information Commissioner Says.” ABC News March 1. https://www.abc.net.au/news/2023-03-01/data-breaches-revealed-by-australian-information-commissioner/102039710
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To what extent does an independent judiciary ensure that the government, administration and legislature operate in accordance with the constitution and law?
10
9
9
The judiciary effectively ensures that the government and legislature act in accordance with the law.
8
7
6
7
6
The judiciary usually manages to ensure that the government and legislature act in accordance with the law.
5
4
3
4
3
The judiciary fails to ensure effective legal compliance in some crucial cases.
2
1
1
The judiciary fails to ensure effective legal control.
Australia has a well-established and highly effective judicial system, with the High Court of Australia (HCA) at its apex. Appointment processes are quite independent, with political considerations playing no more than a marginal role in determining who is appointed as judges. The norms of the Westminster system leave most “political” matters to the executive to define and determine, giving the executive significant discretion on controversial questions. That said, on matters that touch on the law, judicial independence from politics is widely accepted in both the legal and political communities, as evidenced by the reluctance of judges to make statements that would reveal any ideological or partisan preferences, and the deference that politicians show to the courts on legal questions.
Such deference is shown even when the courts reach judgments that are clearly opposed to government policies. A recent example is provided by the HCA’s decision on 8 November 2023 to rule indefinite immigration detention unlawful, causing the collapse of a policy that both major parties had supported while in power. Although the government did act in accordance with the court’s judgment by immediately freeing all those held in detention, it immediately prepared new legislation that would allow the government to re-detain a released individual by submitting to a court evidence that the person has been convicted (either in Australia or overseas) of a crime that carries a sentence of seven years or more, and the court agrees that the individual poses “an unacceptable risk of committing a serious violent or sexual offense” and there is “no less restrictive measure available” to keep the community safe (Peterie and Nethery 2023).
HCA jurisprudence is sophisticated, and it is supported by rich legal debate among legal practitioners and academics. Among the challenges facing the judiciary that have received attention in recent times are the struggles with achieving satisfactory levels of diversity among judicial officers, workload and well-being considerations, and difficulty with removing judges for consistently poor performance or misconduct.
Citations:
Peterie, M., and Nethery, A. 2023. “What is the government’s preventative detention bill? Here’s how the laws will work and what they mean for Australia’s detention system.” The Conversation. https://theconversation.com/what-is-the-governments-preventative-detention-bill-heres-how-the-laws-will-work-and-what-they-mean-for-australias-detention-system-219226
Appleby, G., Le Mire, S., Lynch, A., Opeskin, B. 2019. “Contemporary Challenges Facing the Australian Judiciary.” Melbourne University Law Review 42 (2): 299-369. https://law.unimelb.edu.au/__data/assets/pdf_file/0004/3066880/NEW-Appleby-422-Advance-1.pdf
Such deference is shown even when the courts reach judgments that are clearly opposed to government policies. A recent example is provided by the HCA’s decision on 8 November 2023 to rule indefinite immigration detention unlawful, causing the collapse of a policy that both major parties had supported while in power. Although the government did act in accordance with the court’s judgment by immediately freeing all those held in detention, it immediately prepared new legislation that would allow the government to re-detain a released individual by submitting to a court evidence that the person has been convicted (either in Australia or overseas) of a crime that carries a sentence of seven years or more, and the court agrees that the individual poses “an unacceptable risk of committing a serious violent or sexual offense” and there is “no less restrictive measure available” to keep the community safe (Peterie and Nethery 2023).
HCA jurisprudence is sophisticated, and it is supported by rich legal debate among legal practitioners and academics. Among the challenges facing the judiciary that have received attention in recent times are the struggles with achieving satisfactory levels of diversity among judicial officers, workload and well-being considerations, and difficulty with removing judges for consistently poor performance or misconduct.
Citations:
Peterie, M., and Nethery, A. 2023. “What is the government’s preventative detention bill? Here’s how the laws will work and what they mean for Australia’s detention system.” The Conversation. https://theconversation.com/what-is-the-governments-preventative-detention-bill-heres-how-the-laws-will-work-and-what-they-mean-for-australias-detention-system-219226
Appleby, G., Le Mire, S., Lynch, A., Opeskin, B. 2019. “Contemporary Challenges Facing the Australian Judiciary.” Melbourne University Law Review 42 (2): 299-369. https://law.unimelb.edu.au/__data/assets/pdf_file/0004/3066880/NEW-Appleby-422-Advance-1.pdf
How well does the executive branch and its members uphold and safeguard civil rights, and to what extent do the courts effectively protect citizens against rights violations?
10
9
9
There are no limits or constraints on the realization of civil rights.
8
7
6
7
6
There are no significant limits or constraints on the realization of civil rights.
5
4
3
4
3
There are some significant limits or constraints on the realization of civil rights.
2
1
1
There are multiple significant limits or constraints on the realization of civil rights.
Australia does not have a bill of rights. Instead, 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.
Civil rights in areas such as speech, association, political participation, and privacy are generally respected and enforced. However, recent moves in some states to tighten protest laws may limit civil rights necessary for civil disobedience and social movement activism. The political rights of Indigenous Australians remain insufficiently protected, and these communities are overrepresented in prisons and the penal system (Amnesty International 2023). Refugees and migrants face political risks that citizens are protected from.
One of the factors (Factor 4) measured by The World Justice Project tracks the protection of fundamental rights, focusing on rights that are firmly established under the United National Universal Declaration of Human Rights. According to this indicator, Australia is a high performer, ranking 19 out of 140 countries tracked by The World Justice Project. However, the trendline for Australia has been downward since 2015. The fundamental rights protection score recorded in 2023 is 0.78, but in 2020 that score was slightly higher at 0.79, and higher still in 2018 (0.81), and 2015 (0.82) (World Justice Project 2023).
Citations:
Amnesty International. 2023. “Amnesty International Report 2022/23: The State of the World’s Human Rights.” https://www.amnesty.org/en/documents/pol10/5670/2023/en/
World Justice Project. 2023. “WJP Rule of Law Index: Countries: Australia.” https://worldjusticeproject.org/rule-of-law-index/country/2022/Australia/Fundamental%20Rights/
Civil rights in areas such as speech, association, political participation, and privacy are generally respected and enforced. However, recent moves in some states to tighten protest laws may limit civil rights necessary for civil disobedience and social movement activism. The political rights of Indigenous Australians remain insufficiently protected, and these communities are overrepresented in prisons and the penal system (Amnesty International 2023). Refugees and migrants face political risks that citizens are protected from.
One of the factors (Factor 4) measured by The World Justice Project tracks the protection of fundamental rights, focusing on rights that are firmly established under the United National Universal Declaration of Human Rights. According to this indicator, Australia is a high performer, ranking 19 out of 140 countries tracked by The World Justice Project. However, the trendline for Australia has been downward since 2015. The fundamental rights protection score recorded in 2023 is 0.78, but in 2020 that score was slightly higher at 0.79, and higher still in 2018 (0.81), and 2015 (0.82) (World Justice Project 2023).
Citations:
Amnesty International. 2023. “Amnesty International Report 2022/23: The State of the World’s Human Rights.” https://www.amnesty.org/en/documents/pol10/5670/2023/en/
World Justice Project. 2023. “WJP Rule of Law Index: Countries: Australia.” https://worldjusticeproject.org/rule-of-law-index/country/2022/Australia/Fundamental%20Rights/
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 are effective and provide disincentives for public officeholders to abuse their positions.
5
4
3
4
3
Few integrity mechanisms are effective and provide disincentives for public officeholders to abuse 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.
Australia is a low-corruption country with evidence suggesting that instances of explicit corruption, such as bribery, are extremely rare. However, there is a widespread perception of corruption in public life, partly due to a lack of transparency or practices not conducive to the public interest. Political financing practices and government contract awarding processes raise concerns about favorable treatment and inappropriate personal gain.
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 2022 election.
In the past year, the federal government has established a new National Anticorruption Commission (NACC) with broad powers to investigate corruption across the Commonwealth public sector (Knaus 2023). ll states and territories have operated with integrity agencies for several decades, so the creation of this new body addresses a major gap in the country’s integrity framework. It remains to be seen whether the new organization will have a positive impact not only on actual corruption, but also on perceptions of corruption in the community. Despite the new institution, there remain concerns that whistleblowers, who expose corruption, are inadequately protected across Australian jurisdictions (Transparency International 2023).
Citations:
Transparency International. 2023. “Stronger Whistleblower Protections Key to Holding ‘Big Four’ Accountable, Hears Parliamentary Inquiry.” Transparency International Australia. https://transparency.org.au/whistleblower-protections-key/
Knaus, Christopher. 2023. “Australia Lifts Ranking on Global Anti-Corruption Index After Hitting Record Low.” The Guardian January 31. https://www.theguardian.com/australia-news/2023/jan/31/australia-lifts-ranking-on-global-anti-corruption-index-after-hitting-record-low
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 2022 election.
In the past year, the federal government has established a new National Anticorruption Commission (NACC) with broad powers to investigate corruption across the Commonwealth public sector (Knaus 2023). ll states and territories have operated with integrity agencies for several decades, so the creation of this new body addresses a major gap in the country’s integrity framework. It remains to be seen whether the new organization will have a positive impact not only on actual corruption, but also on perceptions of corruption in the community. Despite the new institution, there remain concerns that whistleblowers, who expose corruption, are inadequately protected across Australian jurisdictions (Transparency International 2023).
Citations:
Transparency International. 2023. “Stronger Whistleblower Protections Key to Holding ‘Big Four’ Accountable, Hears Parliamentary Inquiry.” Transparency International Australia. https://transparency.org.au/whistleblower-protections-key/
Knaus, Christopher. 2023. “Australia Lifts Ranking on Global Anti-Corruption Index After Hitting Record Low.” The Guardian January 31. https://www.theguardian.com/australia-news/2023/jan/31/australia-lifts-ranking-on-global-anti-corruption-index-after-hitting-record-low
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Do members of the legislature possess sufficient personnel and structural resources to effectively monitor government activities?
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9
9
As a group, legislative members have access to a range of resources that are suited for effectively monitoring all government activity.
8
7
6
7
6
As a group, legislative members have access to a range of resources that are suited for effectively monitoring a government’s key activities.
5
4
3
4
3
As a group, legislative members have access to a range of resources that are suited for selectively monitoring some government activities.
2
1
1
The resources provided to legislative members are not suited for any effective monitoring of the government.
Legislators have a range of resources to monitor government activities and influence the lawmaking process, which tends to be dominated by the executive under Westminster-style principles. Parliaments have well-resourced libraries that undertake research and produce reports. Perhaps more significant are the activities of parliamentary committees, which can question ministers to ensure accountability and conduct inquiries drawing on expertise from the community, such as academics and civil society actors.
Parliamentarians also have access to advisers. However, after the 2022 election, the Labor government reduced the number of advisers for independent members of parliament funded by the Commonwealth from four to one, and reduced funding for advisers to minor parties. This move met with fierce opposition from independents and minor parties, but the government argued that increased resourcing of the Parliamentary Library would ensure that parliamentarians continued to have sufficient resources.
Despite the significant resources at their disposal, Australian parliaments’ capacities have declined relative to the executive’s. Political scientists like James Walter identify a decades-long strengthening of the Prime Minister’s Office, with greater focus on the leader and personal advisers at the expense of parliamentary influence (Walter 2021).
Citations:
Walter, J. 2021. “Power without Purpose.” Inside Story. https://insidestory.org.au/power-without-purpose/
https://www.aph.gov.au/About_Parliament/Parliamentary_departments/Parliamentary_Library/FlagPost/2022/July/Personal_employee_positions
Parliamentarians also have access to advisers. However, after the 2022 election, the Labor government reduced the number of advisers for independent members of parliament funded by the Commonwealth from four to one, and reduced funding for advisers to minor parties. This move met with fierce opposition from independents and minor parties, but the government argued that increased resourcing of the Parliamentary Library would ensure that parliamentarians continued to have sufficient resources.
Despite the significant resources at their disposal, Australian parliaments’ capacities have declined relative to the executive’s. Political scientists like James Walter identify a decades-long strengthening of the Prime Minister’s Office, with greater focus on the leader and personal advisers at the expense of parliamentary influence (Walter 2021).
Citations:
Walter, J. 2021. “Power without Purpose.” Inside Story. https://insidestory.org.au/power-without-purpose/
https://www.aph.gov.au/About_Parliament/Parliamentary_departments/Parliamentary_Library/FlagPost/2022/July/Personal_employee_positions
Are legislative committees able to exercise oversight of government activities in practice?
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9
9
The legislature is able to exercise its oversight function.
8
7
6
7
6
The legislature is able to exercise its oversight function most of the time.
5
4
3
4
3
The legislature faces constraints in exercising its oversight function in a significant number of cases.
2
1
1
The legislature’s oversight function is frequently and severely compromised.
Parliamentary committees are critical to the Australian accountability architecture. These committees have the power to call witnesses and demand documents for review. While governments can attempt to stall committees’ efforts, a bigger constraint is the executive’s power to influence committee membership. The majority party has disproportionate influence in this process, posing problems for oversight committees. For example, the parliamentary committee overseeing the new National Anticorruption Commission was proposed to be chaired by a non-government politician, but this was rejected (Public Integrity 2022).
Citations:
Public Integrity. 2022. “Media Release: Independent Oversight Key to Effective National Anti-Corruption Commission.” Centre for Public Integrity. https://publicintegrity.org.au/media-release-independent-oversight-key-to-effective-national-anti-corruption-commission/
Citations:
Public Integrity. 2022. “Media Release: Independent Oversight Key to Effective National Anti-Corruption Commission.” Centre for Public Integrity. https://publicintegrity.org.au/media-release-independent-oversight-key-to-effective-national-anti-corruption-commission/
Do legislative committees have the capacity to investigate unconstitutional or illegal activities carried out by the executive branch?
10
9
9
The legislature is able to exercise its investigation function.
8
7
6
7
6
The legislature is able to exercise its investigation function most of the time.
5
4
3
4
3
The legislature faces constraints in exercising its investigation function in a significant number of cases.
2
1
1
The legislature’s investigation function is frequently and severely compromised
Parliamentary committees have considerable powers to call witnesses and demand documents. They are often well-resourced, enabling them to conduct in-depth probes of government action. A structural weakness is the executive’s control over the appointment of chairs for key accountability committees. Governments can subtly influence the work of these committees, even though they are meant to be formally independent. For instance, the private office of then-premier of Victoria, Daniel Andrews, was accused of pressuring Labor members to curtail potentially embarrassing hearings of the Integrity and Oversight Committee in the Legislative Assembly (Love 2022). Moreover, just as important as its capacity to exert influence in the legislature is the government’s considerably autonomy regarding its response to investigative/committee findings that are critical of the government or its proposals.
Citations:
Love, S. 2022. “Daniel Andrews’ Private Office Accused of Directing Labor MPs While They Were on an Independent Parliamentary Committee.” Sky News October 5. https://www.skynews.com.au/australia-news/politics/daniel-andrews-private-office-accused-of-directing-labor-mps-while-they-were-on-an-independent-parliamentary-committee/news-story/f9658a5c55e7ca7d3c6294711ab0ee84
Citations:
Love, S. 2022. “Daniel Andrews’ Private Office Accused of Directing Labor MPs While They Were on an Independent Parliamentary Committee.” Sky News October 5. https://www.skynews.com.au/australia-news/politics/daniel-andrews-private-office-accused-of-directing-labor-mps-while-they-were-on-an-independent-parliamentary-committee/news-story/f9658a5c55e7ca7d3c6294711ab0ee84
To what extent are the organization and operations of legislative committees effective in guiding the development of legislative proposals?
10
9
9
The organization and operations of legislative committees are well-suited for effectively monitoring ministry activity.
8
7
6
7
6
The organization and operations of legislative committees are, for the most part, suited for effectively monitoring ministry activity.
5
4
3
4
3
The organization and operations of legislative committees are rarely suitable for monitoring ministry activity.
2
1
1
The organization and operations of legislative committees are not at all suitable for monitoring ministry activity.
Parliamentary committees are effectively organized to monitor executive activity. There is broad alignment of standing committees with executive functional areas, and select committees can be established to investigate important but non-enduring issues. The government retains significant influence over the chairmanship of important committees and decides which committee recommendations to incorporate into legislative plans or actions, meaning the oversight powers of committees are not always fully exercised. This risk is greater in the House of Representatives than in the Senate. The House tends to have more seats allocated to the government and high party discipline, whereas the Senate has more minor-party and independent members of parliament, leading to more scrutiny of the government.
Committees benefit from being able to examine government activity in a small group. Generally, the small-group context supports mostly cordial and collegial relations in committees, even among politicians from rival parties. There are exceptions, however. For instance, the federal Parliamentary Joint Committee on Intelligence and Security (PJCIS) has attracted attention following the Labor government’s proposal to expand the committee membership (from 11 to 13 members) and open up spaces on the committee to minor parties and independents. The Liberal-National Coalition has expressed its strong opposition to these moves, causing tension in this normally collegial committee (Grayson 2023).
Citations:
Grayson, K. 2023. “Gatekeeping the parliamentary intelligence committee won’t make Australia safer.” The Strategist. https://www.aspistrategist.org.au/gatekeeping-the-parliamentary-intelligence-committee-wont-make-australia-safer/
Committees benefit from being able to examine government activity in a small group. Generally, the small-group context supports mostly cordial and collegial relations in committees, even among politicians from rival parties. There are exceptions, however. For instance, the federal Parliamentary Joint Committee on Intelligence and Security (PJCIS) has attracted attention following the Labor government’s proposal to expand the committee membership (from 11 to 13 members) and open up spaces on the committee to minor parties and independents. The Liberal-National Coalition has expressed its strong opposition to these moves, causing tension in this normally collegial committee (Grayson 2023).
Citations:
Grayson, K. 2023. “Gatekeeping the parliamentary intelligence committee won’t make Australia safer.” The Strategist. https://www.aspistrategist.org.au/gatekeeping-the-parliamentary-intelligence-committee-wont-make-australia-safer/