SECTION 1.UNPACKING THE RULE OF LAW, ACCOUNTABILITY AND THE PUBLIC TRUST
If the Rule of Law involves the requirement that officials must exercise only those powers that have been entrusted to them for the purposes for which they are entrusted with those powers, accountability is easily defined. Officials are accountable only to the extent to which they are required to demonstrate that they have used their entrusted power in officially approved ways and for the purposes that they were empowered. This is particularly true where discretionary powers have been conferred on officials.
For any government and its officials there is a range of accountability measures. At the centre of these is the Parliament which must be the centre of integrity and accountability institutions and the national and state ‘integrity systems’. However, it cannot be the only accountability institution. There is a beguilingly simple democratic circle in which the voters choose their Members of Parliament (MPs), the MPs choose their premier, the premier chooses the ministers, the ministers choose senior public servants and the policies they implement for the benefit of the voters and the voters decide whether to re-elect the MPs. Accountability goes in the opposite direction of the circle – civil servants are accountable to ministers, who are accountable to premiers, who are accountable to their MPs who are accountable to the voters.
In this circular model, anything that gets in the way of the virtuous democratic circle is undemocratic and to be resisted. The problem was that every single element along the circle could be, and often has been, corrupted. Policies and politicians could be bought, governments could use government resources to promote re-election and electorates be gerrymandered and voter suppression practised. The post-Fitzgerald reforms in Queensland sought to create new and reformed laws, norms and institutions to improve integrity and accountability. Collectively these were called an ethics regime[i], an ethics infrastructure (OECD)[ii], an integrity system[iii] by Transparency International (TI) or, in Queensland’s 20th anniversary reforms an ‘integrity and accountability system’[iv]
It should be noted that, in these systems, accountability is not necessarily vertical or hierarchical as in the simple model. Integrity institutions will generally be expected to be mutually supportive – e.g. audit offices and ombudsmen should pass on accounts or complaints about suspicious behaviour to the proposed Commonwealth Integrity Commission (CIC)[v] and the CIC should pass on cases of maladministration to ombudsmen and referral of misuse of resources to Auditors General. Some will assist parliament and its committees to do their work e.g. ombudsmen, and Auditors-General. They may also be mutually or horizontally accountable e.g. CIC actions should be subject to judicial review but judges can be investigated by a CIC (preferably involving a judicial commission).
[i]Sampford, C ‘Institutionalising public sector ethics’ in Noel Preston (ed), Ethics for the public sector: education and training (Federation Press, 1994) 14-34.
[ii] OECD Ethics in the Public Sector: Current Issues and Practices, (OECD 1996).
[iii] Transparency Internationals preferred term. Pope, J, TI Source Book 2000 (Transparency International, 2000). Pope, TI’s first CEO, worked with Sampford to develop the methodology for national integrity system assessments
[iv] see https://cabinet.qld.gov.au/documents/2009/Nov/Integrity%20and%20Accountability%20Reforms/Attachments/response-to-integrity-accountability.pdf Prof Sampford was a member of the Premiers “Integrity Round Table that drew this up.
[v] We use the term “Commonwealth integrity commission.” ICAC is a widely used recognized term – though such bodies appear under various names – Criminal Justice Commission, Crime and Misconduct Commission, Crime and Corruption Commission, Independent Broad Based Anti-Corruption Commission and, in many Asian jurisdictions ‘Ombudsman’. ART has no problem with the proposed name (Commonwealth Integrity Commission): we want it to have the powers and functions of the most advanced ICACs and explicitly eschew the kind of provisions that the Newman government introduced and were soundly rejected by ART and other experts.