Abstract
This chapter discusses how the doctrine of responsible government fails to operate in Australia because the rules of parliamentary privilege, coupled with the dominance of two major political blocs, ensures that the mechanisms which are theoretically available to parliament to ensure executive subordination to the legislature are never used. The chapter examines several instances of executive defiance of parliament and argues that the power of parliamentary committees to force members of the executive to answer questions need to be enhanced, drawing on the example of the United States where paradoxically, despite not having a system of responsible government, the executive is subject to the scrutiny of the legislature to a far greater degree in Australia. The chapter also discusses how the right of parliament to obtain information from the executive should be balanced against executive claims of public interest immunity. The chapter also argues that the method of choosing the Speaker of parliament needs to be reformed so as to ensure that the incumbent is genuinely independent.
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Notes
- 1.
Rudd (2017, pp. 306, 334–5, 420).
- 2.
Head (2009).
- 3.
Seccombe (2017).
- 4.
Seccombe (1998).
- 5.
Henderson (1998).
- 6.
Armstrong (1998).
- 7.
Coorey (2002).
- 8.
Atkins (2004).
- 9.
Franklin (2010).
- 10.
The Slipper saga is discussed in Singleton et al. (2012, p. 154).
- 11.
Australian Broadcasting Corporation (2013).
- 12.
Malone (2016).
- 13.
Commonwealth of Australia, House of Representatives Standing Orders, (2015) SO 94(a).
- 14.
Commonwealth of Australia, House of Representatives Standing Orders, (2015) SO 94(d).
- 15.
Laundy (1964, pp. 22–5).
- 16.
Laundy (1964, p. 7).
- 17.
- 18.
Rozzoli (2006, pp. 194–201).
- 19.
(1955) 92 CLR 157.
- 20.
- 21.
(1996) 40 NSWLR 650.
- 22.
Evans (2004, pp. 30, 57, 377).
- 23.
Evans (2004, p. 378).
- 24.
Evans (2004, Appendix 2, Paras 12 and 13).
- 25.
Evans (2004, pp. 416–7, 423).
- 26.
Walters (2004).
- 27.
Kirk (2004).
- 28.
- 29.
- 30.
Anderson (2016).
- 31.
Thompson (2006).
- 32.
Ryle et al. (2005).
- 33.
Evans (2002).
- 34.
In 1994 Senator Kernot of the Australian Democrats introduced a Bill which would have made it a criminal offence, prosecutable in the Federal Court at the instance of a House of Parliament, to fail to comply with an order of a House or a committee. The Bill would also have empowered the court to order compliance with the legislature’s request. The Bill provided for a public interest immunity defence, with the onus being on the accused to prove that the public interest in not complying outweighed the need for open parliamentary inquiries. Courts could conduct in camera hearings to determine whether the defence had been established. Unsurprisingly, the Bill was not proceeded with due to opposition by the major parties.
- 35.
(1996) 40 NSWLR 650.
- 36.
(1998) 195 CLR 424.
- 37.
(1999) 46 NSWLR 563.
- 38.
Evans (2004, pp. 643–4).
- 39.
Evans (2004, pp. 659–60).
- 40.
19 US (6 Wheat.) 204 (1821).
- 41.
273 US 135 (1927).
- 42.
273 US 135 (1927), 174.
- 43.
273 US 135 (1927), 177.
- 44.
273 US 135 (1927), 177.
- 45.
For a discussion of this case see Marshall (2004, pp. 792–7).
- 46.
Wilson (1913, p. 303).
- 47.
498 F.2d 725 (D.C. Cir. 1974) 732–3.
- 48.
418 US 683 (1974).
- 49.
Although this case involved the question of the extent to which executive privilege can serve to defeat a subpoena in which information or attendance of a witness is sought by the judicial branch (in other words, in court proceedings), what was held by the Supreme Court applies equally to cases where information is sought from the executive by the legislative branch. See Tribe (2000, p. 784).
- 50.
418 US 683 (1974) 705, 708.
- 51.
418 US 683 (1974), 703.
- 52.
418 US 683 (1974), 711–12. See also Senate Select Committee on Presidential Campaign Activities v Nixon 498 F.2d 725 (D.C. Cir 1974) and United States v A T & T 521 F.2d 384 (D.C. Cir 1976) and 567 F. 2d 121 (D.C. Cir 1977).
- 53.
418 US 683 (1974), 710–11.
- 54.
418 US 683 (1974), 713–14.
- 55.
433 US 425 (1977).
- 56.
433 US 425 (1977), 446–7.
- 57.
433 US 425 (1977), 443.
- 58.
On the political ramifications of claims of executive privilege see Louis Fisher (2002).
- 59.
Fisher (2002, p. 325).
- 60.
Fisher (2002, pp. 394–401).
- 61.
See Rozell (1994, p. 90).
- 62.
Rozell (1994, p. 150).
- 63.
Marshall (2004, pp. 806–08).
- 64.
(1978) 142 CLR 1.
- 65.
(1978) 142 CLR 1), 38–43.
- 66.
Alister v The Queen (1984) 154 CLR 404. See also Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 171 ALR 379 and NTEU v Commonwealth (2001) 111 FCR 583.
- 67.
(1999) 46 NSWLR 563.
- 68.
Confidentiality would thus not apply to a document merely because it had been physically present during a cabinet meeting – for an example of trolley-loads of documents being wheeled into cabinet meetings simply in order for it to be said that they were ‘cabinet documents’ see Roberts (2006).
- 69.
The issue of how cases involving ineligibility under s 44 are processed is discussed in Chap. 11.
References
Anderson S (2016) Senior officials refuse to answer questions on payments to people smugglers. ABC News. 5 Feb 2016
Armstrong G (1998) Damage control as speaker quits. The West Australian. 4 Mar 1998
Atkins D (2004) Proposal to have an impartial speaker. The Courier Mail. 19 Mar 2004
Australian Broadcasting Corporation (2006) Labor questions legality of Senate estimates gag. News On-line. 14 Feb 2006
Australian Broadcasting Corporation (2013) Bishop: Gillard’s misogyny speech should not have been allowed. Radio National Breakfast. 17 September 2013. http://mpegmedia.abc.net.au/rn/podcast/2013/09/bst_20130917_0832.mp3. Accessed 17 Oct 2019
Coorey P (2002) Behaviour hits the bottom line. Adelaide Advertiser. 1 July 2002
Evans H (ed) (2004) Odgers’ Australian Senate practice, 11th edn. Department of the Senate, Canberra
Evens H (2002) The Australian Parliament: time for reformation. Address to the National Press Club. 24 Apr 2002. https://australianpolitics.com/2002/04/24/harry-evans-parliamentary-reform-speech.html. Accessed 17 Oct 2019
Fisher L (2002) Congressional access to information: using legislative will and leverage. Duke Law J 52(2002):323–402
Franklin M (2010) Independents secure overhaul of parliament. The Australian. 7 Sept 2010
Griffiths E (2013) Immigration Minister Scott Morrison defies Senate order to release information about Operation Sovereign Borders. ABC News. 19 Nov 2013
Head M (2009) The Haneef inquiry: some unanswered questions. J Aust Law Teach Assoc 2:95–112
Henderson G (1998) PM’s backflip on speaker reform. The Courier Mail. 9 Mar 1998
House of Representatives (2015) Standing orders. Commonwealth of Australia, Canberra
Kirk A (2004) ABC Television. The World Today. 1 June 2004
Laundy P (1964) The Office of Speaker. Cassell, London
Lynch A (2001) Called to account – in praise of the estimates process. Canberra Times. 2 Oct 2001
Maiden S (2006) Gag in Senate illegal, clerk warns. The Australian. 12 Apr 2006
Malone P (2016) Tony Smith as Speaker returns order to the Parliament. Sydney Morning Herald. 6 Feb 2016
Marshall W (2004) The limits on Congress’s authority to investigate the president. Univ Ill Law Rev 781–825
Parliament of Australia (2019) Senate brief no 5 consideration of estimates by the Senate’s legislation committees. https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Senate_Briefs/Brief05. Accessed 21 Oct 2019
Peake R (2006) Cover-up claim as officials gagged. Canberra Times. 14 Feb 2006
Roberts G (2006) To hell with the critics. The Australian. 26 Aug 2006
Rozell M (1994) Executive privilege: the dilemma of secrecy and democratic accountability. Johns Hopkins Press, Baltimore
Rozzoli K (2006) Gavel to Gavel: an insider’s view of parliament. University of New South Wales Press, Sydney
Rudd K (2017) Not for the faint-hearted – a personal reflection on life, politics and purpose. Macmillan, Sydney
Ryle G, Pryor L, Metherell M (2005) Senate boss blasts PM’s monarch. Sydney Morning Herald. 21 June 2005
Seccombe M (1998) Unlike Howard, at least Halvo was true to his word. Sydney Morning Herald. 4 Mar 1998
Seccombe M (2017) The true story of Michaelia Cash’s union raids. The Saturday Paper. 4 Nov 2017
Singleton G, Aitkin D, Jinks B, Warhurst J (2012) Australian political institutions, 10th edn. Pearson, Frenchs Forest
Thompson K (2006) Public accountability non-existent in Howard Govt. The Canberra Times. 26 Sept 2006
Tribe L (2000) American constitutional law, volume One, 3rd edn. Foundation Press, St Paul
Walters P (2004) A fearless public servant. The Australian. 17 Aug 2004
Ward A (2012) Parliamentary Government in Australia. Australian Scholarly Publishing, North Melbourne
Wilson W (1913) Congressional Government; a study in American politics. Houghton Mifflin, Boston
Zander J (2014) As it happened: Scott Morrison fronts Senate committee over asylum seeker policies. ABC News. 31 Jan 2014
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Harris, B. (2020). Holding Government to Account. In: Constitutional Reform as a Remedy for Political Disenchantment in Australia. Springer, Singapore. https://doi.org/10.1007/978-981-15-3599-4_7
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