SECTION 2. ACCOUNTABILITY MECHANISMS – PROBLEMS & OPPORTUNITIES FOR REFORM
7. ACCOUNTABILITY VIA PARLIAMENT
7.1 Question Time
While elections are the means by which governments are held accountable through losing their majorities, Parliament is intended to hold them accountable on a day-to-day (or, at least, sitting day by sitting day) basis. Traditionally this was through MP’s asking questions. However, question time is limited and largely wasted through ‘Dorothy Dixers’ and ‘answer avoidance’.
Question Time’s failure as an accountability mechanism arises from the flaws in its original design. The Speaker’s Ruling (1901) left Ministers with discretion as to if and how they answered a question.[i] The recent Committee recommendations[ii] were disappointingly inconsequential. The fundamental flaw should be corrected by:
- The Speaker’s making a Ruling redressing the 1901 Ruling and making other reforms requiring ministers to provide answers to questions and similarly setting requirements for questions;
- After a trial period of the operation of the above Ruling, Standing Orders being amended to make similar provision, with any amendment found to be desirable;
- The Prime Minister issuing revised guidelines for ministers supportive of and complementary to the above Ruling.[iii]
Question Time should be made more effective
7.2 Parliamentary Committee Resources
Parliamentary Committees have more time to debate and greater subject matter expertise through committee staff and some members. They have a right to demand production of any document or to summon any witness. Ministers will normally instruct staffers and may instruct public servants not to appear. But Parliament is the final arbiter of what information and witnesses it can demand. Committees are reluctant to move from an invitation to a demand for two reasons – retaliation when governments change and the concern that they might have to jail the summoned witness for contempt. The first is not worthy of any MP who claims to support accountability and the Rule of Law. The second is easily dealt with. It is not necessary to jail the staffer/ or public servant in question. The House (the Senate) acting on the recommendation of a Committee, can go to Court seeking a declaration that the government instruction is ultra vires and that the Parliament has a right to hold the Minister in contempt.[iv] Once the Declaration is issued, there is legally no instruction and the staffer/public servant has no reason not to appear
Parliamentary Committee Resources: Committees should be funded to employ further staff to help them in their role Committees should never be dominated by either major party and the UK practice of ear-marking some important committees chaired by Opposition nominees should be adopted.
7.3 Ministerial Staff Accountability
In the absence of amendments to the ministerial code as proposed, then at a minimum any legislation for an Integrity Commission should not place any limits on the power of the commission to require the appearance of staffers and public servants.
Parliamentary committees should be able to employ further staff to help them in their role (a bit like counsel assisting) and should be funded for it. Membership should never be dominated by either major party and the UK practice of ear-marking some important committees chaired by Opposition nominees should be encouraged.
All departments and statutory authorities (corporate Commonwealth entities and non‑corporate Commonwealth entities) are required to report to Parliament[v] rather than merely to the relevant minister. Ministers should notify the relevant parliamentary committee of any exercises of their shares in government owned corporations (or golden share in part privatised corporations).
Ministerial staff members (sometimes referred to as advisers) have an important role to play. Ministerial standards formally make ministers accountable for the actions of their staffers. But ministers are rarely required to accept any formal responsibility for staff actions, even if they admit them. Staff actions are by their nature often hidden, and easily deniable whether or not they were taken with the Minister’s implied or explicit consent. Neither the minister nor the staff members are held to account for staff actions in any forum of parliament.
It is important to know what actions a staffer has taken before the relevant minister can be held accountable for it. Accordingly, ministerial staff should be liable to be called as witnesses to parliamentary committees to provide information and explain their role in any policy developments, but not comment on policy, on a similar basis to the appearance of public servants.
Breaches of the staffer’s code should be investigated independently by the commissioner who would need to determine if the staffer breached the code and whether the minister had ordered or encouraged the staffer then the commissioner may find against the minister.
Ministerial Staff Accountability: The ministerial code (the ‘Statement on Ministerial Standards’) should proscribe any instructions preventing the appearance of staffers and public servants from appearing before committees and include a positive duty to provide all requested information to committees. Exceptional, sensitive security information could be provided to a committee made up of shadow ministers of those ministers who sit on the security sub-committee of cabinet. CIC legislation should not place any limits on the power of the CIC Commission to require the appearance of staffers and public servants.
[i] More than a century of rulings in Parliaments around Australia are based on a Speaker’s Ruling that “the Minister is not obliged to answer any question”, supplemented by later rulings that “the Minister may answer the question in any way that he (or she) sees fit” have opened the way for the present abuse of Question Time. Coghill & Hunt (1998) “REFORMING QUESTION TIME” Legislative Studies, Vol. 12, No. 2, Autumn 1998, pp. 36-51
[ii] Standing Committee on Procedure 2021 A window on the House: practices and procedures relating to Question Time
[iii] Accountability Round Table 2021 submission (39) to the Inquiry into the practices and procedures relating to question time, Standing Committee on Procedure.
[iv] See Australian Constitution s49 and Egan v Chadwick (1999) 46 NSWLR 563.
[v] Subsection 46(1) of the Public Governance, Performance and Accountability Act 2013 (PGPA Act)