SECTION 2. ACCOUNTABILITY MECHANISMS – PROBLEMS & OPPORTUNITIES FOR REFORM
8. INSTITUTIONS THAT ASSIST PARLIAMENT
Parliament has a pivotal role in making those entrusted with public power accountable for the exercise of that power. However, they need the contribution of other integrity agencies in support of that role. MPs have taken complaints of constituents to ministers and their departments with the ‘threat’ of a question in the house if the matter is not resolved. The Ombudsman extended this kind of work with its specialist trained staff who can go into much greater detail when examining alleged errors and maladministration, make recommendations and report them to Parliament. (For this reason the office was originally called the ‘Parliamentary Commissioner’.)
The Auditor-General has a critical role in Parliamentary control of finance and the interaction of parliamentary accounts committees. When Auditors General comment and media are on the look out for a story, they make one of the most potent institutional combinations for promoting integrity and accountability. The Australian National Audit Office’s (ANAO) examination of the purposes for which expenditure was made, the processes for approval and the exercise of discretion, are major contributions to accountability for the use of entrusted power. Hence, ensuring, respecting and actively protecting the independence of the Auditor General and the Department is a continuous responsibility.
While criminal justice institutions (integrity commissions, Police, DPPs) may receive information about potential corruption from the institutions cited above (e.g. if the Ombudsman suspects that alleged maladministration may be corruption), their deliberations on whom to investigate and prosecute are largely independent of Parliament. Errors are a matter for the courts, not parliaments (though it is good practice to have an independent commissioner to investigate complaints against integrity commissions and report to a Parliamentary Committee). However, well-constructed integrity commissions have a research function – examining the risk and extent of corruption and other forms of organised crime as well as the ways that they may be addressed. Institutions for the investigation and prosecution of criminal offences must be independent of Parliament and government ensuring that Parliament Criminal prosecutions are not the responsibility of parliament.
Parliamentary Committees can investigate major problems but sometimes the task becomes so large that a Royal Commission is needed. Royal Commissioners’ recommendations for reform naturally go to the government that appointed them. They should also go to relevant parliamentary committees for their comment and, in most cases, pressure the government to accept recommendations the committee endorses. Parliamentary committees may halt their enquiries during cognate Royal Commissions, but should not be required to do so on the insistence of the government.
In Queensland, the Fitzgerald Inquiry recommended an ‘Electoral and Administrative Reform Commission’ that examined every element of the governance of Queensland and recommended improvements on them, recognising the interactions between them. Its recommendations were submitted to a Parliamentary Committee which would then report to Parliament. Fitzgerald intended that this would be an ‘enduring body’ which could review each of those elements on a regular basis. This ‘lesson not learned’ is recommended for all jurisdictions.[i]
Parliamentary scrutiny committees should consider reports from the UN and other international bodies in their deliberations on legislative and executive action – though they are bound to come to their own conclusions.
All integrity agencies should be formally constituted as “Independent Officers of Parliament” who, following Victorian practice, are “entities established by statute, which are independent of the executive government and which assist parliament in carrying out its responsibilities to scrutinise the actions of the government.”[ii] 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 cross-party process determined by the Parliament backed by legislation. The best such mechanism was introduced by Queensland following the Fitzgerald Inquiry and actually proposed (and, it should be noted,) enacted by the outgoing National Party Government. Appointments require prior approval by a majority of the relevant parliamentary committee, with that majority including a member of both the government and opposition. This prevents either party seeking a ‘fellow traveller’. While it is not possible to give every independent and minor party a similar say, their roles might be enhanced by giving them rights to make representations to the relevant committee.
[i] Sampford, Charles “From From Deep North to Global Governance Exemplar: Fitzgerald’s Impact on the International Anti-corruption Movement” Griffith Law Review 2009
[ii] Parliament of Victorian 2017. Research Paper. Available from https://www.parliament.vic.gov.au/publications/research-papers/download/36-research-papers/13807-independence-of-parliament
Recommendation 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.