Recommendations to protect and enhance the Rule of Law, Accountability and the Public Trust in Australia
Overall ART recommends a set proposals involving strengthening of, and some judicious additions to, a range of independent integrity and accountability institutions. This will include a ‘beyond best practice’ Commonwealth Integrity Commission (CIC). We recognize that Parliament must be at the heart of any accountability or integrity system – supporting, and being supported by, the other integrity institutions. Parliament has an indispensable role in maintaining the Rule of Law.
1. Parliamentary Oversight and Scrutiny of Delegated Legislation: All exemptions from disallowance and sun-setting of delegated legislation are to be in primary legislation; existing limitations on disallowance to be justified by Attorney-General and approved by Senate or removed from legislation. The Senate itself should not allow any exemptions from disallowance except in exceptional circumstances.
2. Parliamentary Oversight and Scrutiny of Treaties: If a treaty proposed by the government is acceptable to the Treaties Committee, it should be ratified and enacted into domestic law. If it is unacceptable to the Treaties Committee, it should not be ratified. Australia should restore its acceptance of the compulsory jurisdiction of the International Court of Justice to its pre 2002 levels.
3. Parliamentary Oversight and Control of Appropriations: Parliament should exercise its powers over money bills during consideration of the budget process. It should demand sufficient detail to understand the public benefit that justifies entrusting those funds to the relevant minister and require the government to propose a clarifying amendment or alternatively consider an amendment deleting the undisclosed item. Where the use of funds is relatively novel, separate legislation should be required.
4. Going to War: Before entering a ‘war of choice’ truly independent legal and military advice is sought by, and presented to, a parliamentary committee made up of the cabinet security sub-committee and their shadows followed by a vote of both houses. Australia should ratify the Rome Statute amendments that allow prosecutions for the crime of aggression.
5. Question Time: should be made more effective.
6. Parliamentary Committee Resources: Committees should be funded to employ a greater 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. 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.
8. Appointment of Commissioners and heads of integrity agencies: Each Independent Officer of Parliament (Auditor General, Ombudsman, Information Commissioner, Commonwealth Integrity Commissioner, Human Rights Commissioner, Ethics Counsellor, Ethics Commissioner etc.) should be appointed by a legislated cross-party process that involves prior approval by the majority of a nominated parliamentary committee including at least one vote from a government and an opposition member.
9. Commonwealth Integrity Commission: A ‘beyond best practice’ commission should be created as a major, essential feature of an effective integrity system and good governance. It must have the powers of a standing royal commission, subject to ‘watch the watchdog’ similar to those adopted in Queensland.
All public officers (MPs, public servants, contractors to government, etc) are liable to CIC investigation of alleged unethical or illegal actions. These include the power to conduct public hearings into either specific allegations or general corruption issues, if it determines that that is in the public interest. It would be empowered to make findings of fact and recommendations in a public report. Matters involving potential criminal prosecutions could be referred to law enforcement authorities.
10. Assessment of Integrity Risks: There should be parliamentary procedure for assessment of the risk that propose legislated powers may be abused and recommend the best means for avoiding or mitigating them (with inputs from the CIC).
11. Judicial Review of Administrative Actions: The trend to strip the Federal Court of many review powers must be reversed with a return of full judicial review functions and all limits re-examined and justified before scrutiny of bills committees.
12. International Law and judicial review: Legislation should clarify that treaties Australia has signed and international law in general are highly relevant considerations for the exercise of entrusted power and both elected and appointed officials should be subject to judicial review for a failure to do so.
13. Right to Know: Information produced by the government for the purposes of making and recording decisions is the property of the people. One needs a good argument to deny access by the people to their property. There are some good arguments for such denial but they are overused and should be subject to veto by the Information Commissioner. Withholding information to prevent public discovery that a minister or senior public servant was wrong, foolish, unethical or, especially, lying is a serious abuse of power and therefore corrupt.
14. A Judicial Commission: should be created to make recommendations and appointment by similar approach to heads of integrity agencies.
A similar approach for appointment of Royal Commissioners and DPPs should be created.
15. Funding of Integrity Agencies: The role of recommending the funding level to the Parliament should be assigned to a relevant parliamentary committee or an independent commission.
16. Codes of Conduct: The code (or network of codes) needs to be more comprehensive in content (most notably workplace bullying and harassment (sexual or otherwise) and reach (covering all MPs, staffers and senior officials with any necessary modifications to reflect their roles). Breaches should be investigated by an “Ethics Commissioner” who should be chosen by the bi-partisan process for other key integrity agencies and their officials. The code should be drafted by a bi-partisan senate committee and be voted on by both houses of parliament. To help ministers, MPs and senior civil servants avoid breaches, an Ethics Counsellor should also be appointed who can offer ethics training and ongoing advice.
17. Truth in political advertising legislation: It is an offence for to corporations in competitive markets to engage in misleading and deceptive conduct. ART argues that politicians, parties and supporters should have the same duty in the ‘market of ideas’. More generally there needs to be negative consequences for lying and misleading.
18. Accountability of MPs and their parties via elections: Public funds, resources and powers should not used to create advantages for candidates or parties, whether manipulating electoral boundaries, election timing, government advertising, pork-barrelling or secret agreements between coalition parties.
19. Money and Politics: Cash and in kind Political donations be regulated with: disclosure in real time; limits on any single donor, retention of public funding for elections, anti-avoidance mechanisms, bans on some donors such as foreign governments and corporations (as in US) and industries that have too much to gain from governmental decisions.
20. The Media as an Accountability Mechanism: To ensure that the media play their roles in holding governments to account, professional journalism should be supported and concentration of media ownership should be reduced by diverse ownership, ‘Angel investors’ and charities which do not have an agenda but want to support quality news, Trust ownership (e.g. The Guardian); supporting the ABC, financially and otherwise, as the quality standards-setter in Australian journalism; adoption and enforcement of ABC style standards for all news media. Professionalisation of journalists and editors with editorial charters to ensure their independence from the views of owners is essential.
21. Governance Reform Commission: An enduring national Governance Reform Commission (following the model of the Queensland ‘Electoral and Administrative Reform Commission’) would review all aspects of governance and make recommendations to Parliament (which would be very hard to ignore) and develop an expertise in such reforms and a strong understanding of the need for new and reformed institutions to understand each other’s roles and the ways they could be mutually supportive.