Politics and Law: Accountability of the Commonwealth Parliament

Strengths of elections as a CP accountability mechanism

- Allow voters to (potentially) directly remove MPs from office, thus strongly holding them to account; - The characteristics of effective elections are met in Australia; and - Are particularly effective in the Lower House, due to the single-member electorates and majoritarian voting system used, as well as allowing for electoral strategies (e.g. Marginal seat and sitting member last campaigns) to be effectively employed.

Parliamentary committees as an accountability mechanism: Strengths

- Assist in the achievement of the major functions of Parliament, as specialised bodies that cooperate across political parties; - Can hold MPs to account for abusing parliamentary privilege or failing to avoid conflicts of interest, especially (theoretically) by punishing them; - Grant MPs the power to investigate and scrutinise other MPs, thus holding them to account; and - Often act as a vehicle for bringing matters of importance and controversy to public attention, thus effectively invoking the court of public opinion.

Ways in which the CP is held accountable

- Elections; - Parliamentary Committees; - The processes and procedures of CP; and - Judicial review.

Criteria for effective elections

- Free from intimidation or influence by those seeking to win office; - Allowing for fair expression, both in terms of the will of the majority and the respect and protection of minority rights; and - Regular and frequent.

Processes and procedures of the CP which can hold itself to account

- Hansard; - Question Time; - Grievance debates; - Order of Business/Notice Paper; and - Standing Orders. --> Matters of Public Importance; and --> Urgency motions.

Functions for which the CP is accountable

- Legislative, i.e. Passing statute law; - Debating and deliberating legislation; - Representing the people; and - Forming government and keeping it responsible for its actions (HoR). Also, individual MPs should: - Maintain the utmost probity; and - Propriety. Finally, the Senate is also responsible for: - Representing the States in law-making; and - Acting as a 'House of review'.

Powers of the presiding officer of each chamber

- May caution or warn MPs about their behaviour during a parliamentary session; and - If they persist in violating Standing Orders, they may be ordered from the chamber for a period of time, at the discretion of the presiding officer.

Features of the proportional voting system used in the Senate that reduce its ability to maintain accountability

- Multi-member electorates; - Malapportionment, derived from the equal State representation; - The broad complexity of the proportional voting system, which could potentially lead to high rates of informal voting; and - The relative infrequency with which Senators face elections.

Weaknesses of elections as a CP accountability mechanism

- Relatively infrequent, meaning voters can only directly hold MPs to account in a semi-regular manner; and - Less effective in the Senate courtesy of the multi-member electorates used, complexity of the proportional voting system and presence of malapportionment.

Powers/punishments exercisable by Privileges and Interests Committees

- Reprimand; - Fines of up to $5000 (for an individual); and - Imprisonment for up to six months (never exercised). --> Would necessitate a by-election. Note: Despite possessing such power in theory, in practice MPs are, even once referred to these committees (which is rare), are rarely asked to do more than apologise or withdraw comments.

Parliamentary committees as an accountability mechanism: Weaknesses

- Since they are not courts, they cannot exercise any judicial power and are therefore weak in the sanctions they impose; - In reality, they rarely even use the power they do have to their full extent; - Highly partisan in composition and therefore lack impartiality; and - Since they are composed in proportion to the number of seats won by political parties, House Committees tend to be dominated by the executive government.

Features of the preferential voting system that allow it to maintain a high degree of (CP) accountability

- Single-member electorates; and - Majoritarian nature.

Sections _____ and __ of the Constitution ensure that accountability is maintained through elections, by stipulating that the Senate and HoR, respectively, shall be "________ ______ __ ___ ______".

Seven; 24; directly chosen by the people.

Judicial review: Strengths

- The HC constitutionally possesses the power to directly hold the CP to account by striking down its Acts as "ultra-vires"; and - HC decisions are legally binding.

Internal processes and procedures of the CP as an accountability mechanism: Strengths

- The President of the Senate, due to the (typically) hung nature of this chamber, tends to be relatively impartial and non-partisan and therefore fair in their application of Standing Orders; - It is these processes and procedures - namely Standing Orders - that enable CP to function effectively at all and administer its areas of responsibility; - Hansard improves transparency; and - MPIs, grievance debates and urgency motions all allow for additional scrutiny.

Internal processes and procedures of the CP as an accountability mechanism: Weaknesses

- The partisan nature of the Speaker of the HoR, which often leads to the unfair application of the Standing Orders of this chamber; - The partisan nature of most MPs generally, which leads to party politics often dominating these internal checks; - Standing Orders may be suspended or amended by a motion of the relevant chamber. Executive dominance facilitates this in the HoR; and - Most of these are associated with very little practical impetus; their lack of actual power limits their value as accountability mechanisms.

Ways in which the Australian electoral system satisfies the criteria of effective elections

- They are administered by the AEC, rather than those who are seeking office, keeping them free from such intimidation or influence. The secret ballot process is also significant in this regard; - Preferential voting in the House of Representatives (HoR) - which is almost always controlled by a majority government - allows for the effective expression of the will of the majority, while proportional voting in the Senate enables a diversity of input and closer mirror representation as well as, therefore, minority representation. Also, compulsory voting ensures a true expression of the will of the people; and - Section 28 stipulates that Members of the HoR (MHRs) can serve a maximum of three years in an elected term, while Section Seven establishes six-year rotating terms in the Senate. Together, these Sections establish regular and frequent elections in the nation.

Judicial review: Weaknesses

- Time-consuming and expensive process; - Courts cannot act proactively, i.e. They can only hold the CP to account when presented with a suitable case. This leads to unchallenged (but unconstitutional) legislation remaining active at times, as the CP is not held to account; and - Special Leave must be granted for a case to be heard before the HC.

"Commonwealth Electoral Act (1918)"

A CP statute which establishes preferential voting in the HoR in Australia. Among others, this Act is administered by the AEC.

"Commonwealth Electoral Amendment Act (1949)"

A CP statute which establishes proportional voting in the Senate in Australia.

"Commonwealth Electoral Amendment Act (2016)"

A CP statute which reformed the proportional voting system in the Senate by introducing optional preferential voting below the line for the election of individual senators and removing Group Voting Tickets (whereby "preference deals" between political parties had controlled the distribution of preferences, rather than the actual voters themselves). This made the Senate voting system more democratic, such that it better reflected the intentions of voters, thus enfranchising them.

Point of order

A call by an MP in a parliamentary session for the enforcement of Standing Orders, by calling attention to a violation of the thereof or a mistake in procedure. These require the presiding officer of the relevant chamber to make a ruling thereon.

High Court of Australia (HCA or HC)

A constitutional court which is the highest court of all Australian court hierarchies. It is established by Section 71 of the Constitution and possesses original jurisdiction defined by Sections 75 and 76 and appellate jurisdiction expressed in Section 73.

Grievance debate

A discussion in the House of Representatives during which MHRs may speak about complaints and matters of concern to them or their constituents, so as to scrutinise those responsible therefor.

Privileges Committee

A parliamentary committee - formed in each House of Parliament - which holds MHRs and Senators to account for their conduct as parliamentarians and their use of parliamentary privilege. This is necessary in order to prevent this from being abused and becoming a license to say anything (for example, misleading the Parliament). In the HoR, this takes the form of the House Standing Committee of Privileges and Members' Interests, while in the Senate this is present as the Senate Standing Committee of Privileges. This is an internal accountability mechanism.

Interest Committee

A parliamentary committee - formed in each House of Parliament - which holds parliamentarians to account for their assets, income and other interests in order to ensure that no conflicts of interest arise or exist. In the HoR, this takes the form of the House Standing Committee for Privileges and Members' Interests, while in the Senate it exists as the Senate Standing Committee of Senators' Interests. This is an internal accountability mechanism.

Select committee

A parliamentary committee formed for a specialised purpose. This is disbanded upon reporting to Parliament.

Standing committee

A parliamentary committee which endures for the life of a parliament. This is near-permanent, forming again (but in different composition) upon the election of a new Parliament.

Matters of Public Importance (MPIs)

A parliamentary procedure that allows MPs to speak in Parliament about current issues that have not already been raised in debate and/or are not covered in the Order of Business/Notice Paper. This is typically used by the Opposition to hold the government accountable for aspects of its administration but can be used by an sitting MP. It is a subset of Standing Orders.

Urgency motion

A parliamentary procedure that allows MPs to speak in Parliament about issues they perceive as urgent/pressing. This can allow for scrutiny of other Members/parties and is a subset of Standing Orders.

Election

A process that enables citizens to choose their representatives to sit in a representative legislature and act as their delegates or trustees in law-making. This is the most important method by which the CP is held accountable, since it allows voters to directly express their will, including by removing Members of Parliament (MPs) from office and thus keeping them answerable to the people.

Fairly safe seat

A seat in which the elected candidate received between 56% and 60% of the vote, e.g. Aston.

Marginal seat

A seat in which the elected candidate received less than 56% of the vote, e.g. Cowan.

Safe seat

A seat in which the elected candidate received more than 60% of the vote, e.g. Curtin

Conflict of interest

A situation in which a parliamentarian's private or political concerns clash with their public duties. These are monitored by Interest Committees, since public officials must act in the public interest and not use their position to advance their own personal or political standing. This involves the declaration of all assets, investments and other sources of income to avoid accusations therearound and maintain accountability.

Malapportionment

A situation in which the number of voters in an electoral division is inconsistent with the number of voters in other divisions (outside of an acceptable margin of difference). This undermines the democratic principle of "one vote, one value", since the votes of people in smaller electorates effectively have greater power, due to their increased ability to affect election outcomes (with candidates in these electorates requiring a smaller amount of votes to achieve an absolute majority). This is present in the Senate as a result of the provisions of Section Seven (with, for example, Tasmanian voters having 13.7 times the voting power of New South Wales voters).

Parliamentary committee

A subset of parliamentarians formed into a group for a particular area of specialisation. These can be either standing or select and formed by either House of Parliament or both (i.e. Joint).

Proportional voting

A system of voting used in multi-member electorates, by which a number of candidates who have received a predetermined quota of votes are elected. This constitutes the labelling of preferences by electors, either above the line (where at least six preferences must be indicated) or below the line (12). After the distribution of first preference votes, all candidates who have received the quota of votes are elected and and their surplus votes are redistributed at a reduced transfer value (which allows for no distinction to have to be made between surplus votes and votes "in the quota", thus allowing for all votes to be transferred and, therefore, retaining their equal value), to the second-preference candidates of electors. This process continues until a certain number of candidates have reached the quota and are, therefore, elected.

Majoritarian

A type of electoral system in which the candidate/Party endorsed by the majority alone wins the right to govern and represent the people in law-making. This is a 'winner takes all' system characterised by a 'winner's bonus' in which the number of seats the election winner receives is amplified relative to the number of votes in their favour. This is an aspect of the preferential voting system and promotes the formation of stable majority governments. It also applies to single electorates/seats and who wins the right to sit in CP therein.

Preferential voting

A voting system that allows voters to rank candidates in order of their preferences. An absolute majority (50 percent plus one) of votes is required to be elected. If this is not achieved after the distribution of the first preference votes (i.e. The counting of the primary vote), then the candidate with the least amount of votes is eliminated and the second preference votes of the electors who preferenced this candidate first are distributed among the remaining candidates. This process of elimination and redistribution is continued until an absolute majority is achieved by a candidate. Only formal votes are counted under this system.

Multi-member electorate

An electorate in which voters choose more than one representative to represent them and their interests in CP. This is a feature of the Senate.

Single-member electorate

An electorate in which voters choose only one representative to represent them and their interests in CP. This is used in the HoR.

Australian Electoral Commission (AEC)

An independent statutory authority responsible for administering elections - including the "Commonwealth Electoral Act (1918)" - in Australia. This keeps them free from intimidation or influence from those seeking office and therefore upholds their effectiveness.

Standing Orders can hold parliamentarians to account in that MPs are _____ by them (and, therefore, the ________ _______'s interpretation thereof).

Bound; presiding officer;

Propriety

Decency, including acting without influence from conflicts of interest or corruption.

Judicial review holds the legislature to account by forcing it to ______ and _______ the legislation it passes in court and, if the __ finds that it is unconstitutional, ________ _____ legislation as "ultra-vires". This is one of the ____ significant (although it is overall only a ________ accountability mechanism, due to its limitations) ways in which the CP is held to account, as it must prove that its Acts adhere to codified _____ __ _____. Furthermore, other _______ courts can hold the CP accountable to a very limited extent through _________ ______________ and the application of the various rules and maxims thereof, which give _______ to CP Acts, ensuring that they remain _______ and deliver ____ outcomes. Moreover, this (i.e. The need for statutes to be written "__ ______") necessitates their ________ writing/wording.

Defend; justify; HC; striking down; most; moderate; heads of power; federal; statutory interpretation; meaning; current; just; in futuro; flexible.

Judicial review holding the CP to account: Example (sitting MPs)

In the 'Section 44 Crisis' of 2017-18, the HC interpreted Section 44(i) such that the possession of dual citizenship should disqualify citizens from sitting in Parliament. MPs thereby removed included Barnaby Joyce, Scott Ludlam, Larissa Walters, Malcolm Roberts and Fiona Nash.

Standing Orders/presiding officer holding the CP to account (as well as illustrating their weaknesses): Examples

During her Speakership of the HoR from 2013-15, Bronwyn Bishop undeniably exhibited partisan bias in ejecting (under Standing Order 94A) approximately 400 MHRs from this chamber, including just three from the government.

CP accountability being upheld through elections: Examples (HoR #2)

In 2016, Liberal MHR Jamie Briggs was held to account by his electorate of Mayo, experiencing a swing of 17.48% and thus losing this formerly safe seat to Nick Xenophon Team (NXT) candidate Rebekha Sharkie. Specifically, he was held accountable for sexual harassment allegations against him (which had previously resulted in his resignation from the Ministry) and persistently high unemployment in this division.

Parliamentary committee holding an MP to account: Example (Senate)

In 2020, the Senate Standing Committee of Senators' Interests investigated Nationals Senator Bridget McKenzie and found that she had failed to declare a conflict of interest regarding her membership of a shooting club which received $35980 worth of donations. She subsequently resigned from the Minister but, as a member of the government who did not face pressure from the PM, was not further punished.

Single-member electorates, as a part of the majoritarian electoral system, offer a ____ level of accountability, because they allow voters to easily ________ their local MHR and be _____ of their actions as well as, therefore, ____ who to hold to account for certain policies.

High; identify; aware; know.

Probity

Honesty and integrity.

Parliamentary committee holding an MP to account: Example (HoR)

In 2012, Labor MHR Craig Thomson was held accountable by the House Standing of Privileges and Members' Interests for misleading the HoR under parliamentary privilege. Specifically, he made a statement professing his innocence (despite later being found guilty) in a scandal involving the misuse of a Health Services Union (HSU) credit card - including the spending of $458000 of union funds on prostitutes - and naming members of the HSU who he alleged were involved in a conspiracy against him. Consequently, he was investigated by this committee and was formally reprimanded in 2016 by being asked to apologise to those individuals he falsely accused.

CP being held accountable through elections: Example (Senate)

In the 2016 election, Tasmanian Liberal Senator Richard Colbeck was demoted to the fifth spot on the voting ticket and was subsequently removed from office by the electorate. This was due to his support of Malcolm Turnbull in his leadership spill against Tony Abbott and failure to support same-sex marriage.

CP accountability being upheld through elections: Example (HoR)

In the 2019 Federal election, (Liberal) MHR and former Prime Minister (PM) Tony Abbott was held to account by his electorate of Warringah, experiencing a swing of 18.79% against him - and in the favour of Independent Zali Steggall and thus losing this formerly safe seat. Specifically, he was held accountable for abstaining to vote on the "Marriage Amendments (Definition and Religious Freedoms) Act (2017)" despite his electorate's support thereof, his policy of climate change denialism and the destabilising influence he had on Malcolm Turnbull as PM.

Judicial review holding the CP to account: Example (legislation)

In the case of "Williams 2 (2014)", the HC struck down the CP's "Financial Management and Accountability Amendment (Public Governance) Regulation (2014)", whereby it used Section 51(xxiiiA) - which permits the CP to legislate in areas that benefit students - as a head of power to continue its funding of the National Schools Chaplaincy Program (NSCP). Specifically, the HC interpreted the word "benefit" in such a way that it required students to receive a measurable aid and that the payment of an intermediary (in the form of a chaplain) was deemed not to come under this definition, making this an invalid head of power.

The capacity of the courts to maintain a strong check on legislative power derives from their firm ________ ____________ , - as established by Section __ - the forceful ____ __ ___ which operates in the nation and the HC's ______________ ____________ (Section __).

Judicial independence; 72; rule of law; constitutional jurisdiction; 76.

Overall, Australia's electoral system is effective to a _____ extent.

Large.

Malapportionment undermines accountability in that it makes certain Senators (e.g. Those of Tasmania) accountable to ____ constituents than others. This makes the power they wield ________________, for example, Tasmanian voters have ____ times the voting power of NSW voters.

Less; disproportionate; 13.7.

Multi-member electorates offer only a ________ level of accountability, because it is more _________ for voters to easily identify their local MPs and be _____ of their actions as well as, therefore, ____ who to hold to account for certain policies.

Moderate; difficult; aware; know.

Parliamentary privilege

Protection from the normal limitations on freedom of speech for MPs, which theoretically upholds the debate function of Parliament. This is an enhanced form of freedom of speech which is active whenever a Parliament is in session.

Standing Orders

Rules that govern the operation of each House of Parliament. These are established by Section 50 of the Constitution and are made by each House, to be enforced by the presiding officer thereof - the Speaker of the HoR and the President of the Senate.

Marginal seat campaigns - whereby marginal seats are ________ by political parties in their election campaigns - can _______ accountability therein, although they can also ______ accountability in safe and fairly safe seats, due to such a diversion of resources. Sitting member last campaigns - in which voters are encouraged to __________ sitting MPs last on their ballot paper - can also ______ accountability, especially when ________ ______ involve their resources. Both of this strategies can only be used in the single-member electorates of the ___.

Targeted; enhance; reduce; preference; uphold; pressure groups; HoR.

Section Seven

The Section of the Constitution which establishes the Senate as a "State's House" with an equal number of senators (no less than six) per State and each State voting as a single electorate. It also stipulates that these senators should be "directly chosen by the people", which, together with Section 24, serves to establish representative government in the nation. Moreover, it enshrines the six-year rotating terms of senators.

Section 24

The Section of the Constitution which expresses the 'nexus clause', guarantees that the HoR should be "directly chosen by the people" (thus, together with Section Seven, serving to establish representative government in the nation), establishes the HoR as the 'people's House', with electorates to be assigned according to the number of people who live in them and guarantees each Original State at least five seats therein.

Section 72

The Section of the Constitution which outlines the GG's executive and express power of appointing HC justices which, in reality, is undertaken by the PM (typically in consultation with the Cabinet and State Attorneys General). This Section of the Constitution also guarantees the tenure of High Court judges until the forced retirement age of 70 (unless they are convicted by both Houses for "proved misbehaviour or incapacity"), thus protecting them from political pressure.

Section 28

The Section of the Constitution which outlines the GG's legislative and reserve power of dissolving the HoR. It also establishes the three-year terms of Members of the HoR (MHRs).

Section 76

The Section of the Constitution which outlines the additional original jurisdiction of the HC. Crucially, this includes its constitutional jurisdiction.

Section 17

The Section of the Constitution which outlines the appointment of the President of the Senate, through a majority vote of the Senate.

Section 35

The Section of the Constitution which outlines the appointment of the Speaker, through a majority vote of the HoR

Section 50

The Section of the Constitution which stipulates how each House of Parliament may make and amend its own Standing Orders.

Order of Business/Notice Paper

The agenda of each House of Parliament for a sitting day, by which its presiding officer runs affairs. Only those parliamentarians listed herein may participate in proceedings, ensuring orderliness of and organisation in business.

Electorate

The collective group of citizens in an electoral division (or broader country or area as a whole) who are entitled to vote in an election.

Hansard

The official record of all of the proceedings of the CP, which are made publicly available and therefore offer a degree of accountability therein.

House Standing Committee of Privileges and Members' Interests

The parliamentary committee, specific to the HoR, which holds MHRs to account for their use of parliamentary privilege, avoidance of conflicts of interest and general conduct as parliamentarians.

Senate Standing Committee of Senators' Interests

The parliamentary committee, specific to the Senate, which holds Senators accountable for their avoidance of conflicts of interest.

Senate Standing Committee of Privileges

The parliamentary committee, specific to the Senate, which holds Senators accountable for their use of parliamentary privilege.

Compulsory voting

The political and legal principle whereby citizens are required to vote in elections, or else incur punitive measures. This upholds the effectiveness of elections by ensuring the true expression of the electorate's wishes.

Speaker of the House of Representatives

The presiding officer of the Lower House, who is responsible for maintaining the functioning of this chamber in accordance with its Standing Orders. They are chosen by the government (a process which in reality becomes a prerogative of the PM) and are therefore partisan. This position is currently occupied by Tony Smith and is enshrined in Section 35 of the Constitution.

President of the Senate

The presiding officer of the Senate, who is responsible for the functioning of this chamber in accordance with its Standing Orders. They are chosen by the (typically) hung Senate and therefore tend to be relatively impartial and non-partisan. This position is currently occupied by Scott Ryan and is enshrined in Section 17 of the Constitution.

Judicial review

The process whereby the judiciary holds the legislature accountable. It does so by interpreting statutes in a legally-binding manner or even, in the case of the HCA, using its constitutional jurisdiction to strike down CP legislation as "ultra-vires" (outside of the scope of its power).

Secret ballot

The process whereby voters cast their votes privately and anonymously, without external pressure to coerce them into voting a particular way. This upholds the effectiveness of elections by ensuring they remain free from intimidation or influence by those seeking office.

Commonwealth Parliament (CP)

The sovereign institution in the Australian political system, existing to represent the people and the States in law-making. Hence, it has the functions of forming government and debating such legislation (as well as that of responsibility), as the fundamental institution of the nation's representative democracy.