Chapter Eleven: Accountability in the Parliament

Question 1

Electoral Systems

Answer 1

The framework from which elections are conducted, such as the existence of preferential voting in the lower house and proportional voting in the upper house.

Question 2

Electoral Processes

Answer 2

Processes which occur throughout the running of the election, such as the counting of the votes or the issuing of the electoral writ.

Question 3

Single Member Electorates

Answer 3

Electorates in which only one member is elected and represented, such as electorates within the House of Representatives.

Question 4

Majoritarian Electoral System

Answer 4

A feature of voting systems which over-exaggerate the influence of the major parties, creating stable Parliamentary majorities but severely underrepresenting minor parties.

Question 5

Constitutional Malapportionment

Answer 5

The idea that the constitution through section seven ensures that the Senate voting system suffers from malapportionment, since it states that an equal number of Senators must be selected from each state regardless of that state’s population.

Question 6

Swing

Answer 6

A percentage change of votes within a single member electorate, often used to show the amount the votes would have to change in order for the incumbent member to lose the vote.

Question 7

Sitting member last campaign

Answer 7

A type of campaign targeting an incumbent member in a seat in the lower house where it is attempted to make the incumbent member last in the order of preferences for as many votes possible in order to stop preference flows towards the incumbent member.

Question 8

Parliamentary Privilege

Answer 8

Special privilege that is given to members of Parliament that protects them from civil and criminal prosecution for anything that they say within Parliament whilst it is in session.

Question 9

Privilege Committee

Answer 9

A Parliamentary committee which monitors the use of Parliamentary privilege and other privileges of Parliament to ensure that no member misuses any of these privileges. If a member is found to do so, they can sanction that member. There are separate committees for both the Senate and the House.

Question 10

Interests Committee

Answer 10

A Parliamentary committee which monitors the financial interests of each member of Parliament to ensure that a conflict of interests is avoided and corruption minimised. In the House, this is part of the Privilege committee but in the Senate, these are two different committees.

Question 11

Codes of Conduct

Answer 11

Parliamentary rules which are developed by privilege and interests committees which act as guidelines on Parliamentary conduct. The committees may investigate and sanction any breaches of this code.

Question 12

Order of Business

Answer 12

The order of business refers to what each house will discuss on a certain sitting day, members wishing to participate in certain discussions must have their name listed on the order of business. The speaker and the president run each chamber according to its order of business.

Question 13

Standing Orders

Answer 13

Rules which are created in Parliament that dictate how certain functions of Parliament are carried out. They govern conduct, orders of business, how motions are passed and voted on, the passage of bills, how the speaker and president are addressed and other procedures.

Question 14

Due Process

Answer 14

Ensuring that the same process if followed each time an action is carried out so that the process is fair to all people.

Question 15

Hansard

Answer 15

A published transcript of everything that is said in both the House of Representatives and the Senate which is recorded live when Parliament is in session.

Question 16

Division of Labour

Answer 16

The idea that work within Parliament is done far more efficiently if it is split up between members through Committees.

Question 17

Specialization

Answer 17

The idea that work is done far more efficiently within Parliament if Parliamentarians specialise in a certain are of policy so that they deal with that specific issue faster.

Question 18

Standing Committee

Answer 18

A Committee that is created when Parliament is formed and dissolved when Parliament is dissolved.

Question 19

Select Committee

Answer 19

A committee that is created for a specific purpose and is dissolved when that purpose has been achieved.

Question 20

Marginal Seats

Answer 20

A single member electorate in which the incumbent member received less than 56% of the vote.

Question 21

Safe Seats

Answer 21

A single member electorate in which the incumbent member received more than 60% of the vote.

Question 22

How are elections important in terms of accountability?

Answer 22

Elections are the most effective accountability mechanism within the Australian democratic system as a whole. They are the only way citizens can affect the physical composition of Parliament and thus hold Parliamentarians directly to account for their previous term in office. Elections are also a way of giving the government a mandate as well as establishing a form of social contract. In terms of accountability, this means that the people delegate their sovereignty to Parliamentarians who in turn have the responsibility to represent their interests within government.

Question 23

Explain how certain electoral processes and systems are necessary to ensure accountability

Answer 23

The mere occurrence of elections does not necessarily mean that accountability is being ensured, states like North Korea have elections but their elections in no way ensure accountability. In order for elections to ensure accountability, the way in which they are carried out needs to meet standards of good government. These are:
• Elections must be free from intimation and coercion of voters
• Elections must allow for fair expression of the views of all voters
• Elections must be regular and reasonably frequent
Australia achieves these standards through a number of features. Elections are managed by an independent commission, the Australian electoral commission. The preferential voting and proportional voting systems used in the House and the Senate respectively also allow the views of all voters to be expressed. Finally, section seven outlines a 6 year fixed term for senators and section 24 outlines a 3 year maximum term for members of the House of Representatives. Thus, Australian elections therefore achieve accountability.

Question 24

How does the constitution on the most basic level define Parliamentary accountability?

Answer 24

The constitution dictates through sections 7 and 24 that Parliamentarians must be re-elected by the people, thus the constitution at the core level ensures at the very least basic accountability.

Question 25

What is Parliament theoretically accountable for?

Answer 25

Parliament should be held accountable for what the people expect Parliament should do, which essentially are the core functions of Parliament. These are accountability of the government, representation of the people, creating and maintaining legislation and acting as a forum for debate. Additionally, the roles of the Senate and the House of Representatives are different, as such Senators and members of the House of Representatives are held to account in different ways.

Question 26

In practice, who is being held accountable in the modern political landscape and why?

Answer 26

In practice, voters do not vote for individual Parliamentarians, they vote for political parties and the ideologies and ideals they represent. Modern voters therefore when they think of the previous Parliament will not think about how well Parliament has performed its functions, but rather how well their preferred party has performed within Parliament.

Question 27

Explain using two examples how single member electorates better ensure accountability

Answer 27

Single member electorates naturally ensure a higher level of accountability, since only one member is elected voters within that electorate will become well acquainted with that member. What they do in Parliament is broadcast by the media and voters in that area will likely see them perform various roles in Parliament. Likewise if any hint of political failure or scandal is present the voters within that electorate will become aware of this. For example, in 2007 ALP member Craig Thompson was elected to Parliament. He was formerly the head of the Health Services Union (HSU) and after he moved on from that position when he was still in Parliament it became known during a regular auditing process evidence was found showing that Craig Thompson has misused a union credit card. He was promptly removed from the frontbench of the ALP and moved to the backbench, and he later made a statement to Parliament under Parliamentary privilege claiming that the allegations were lies and others in the HSU had set him up. Craig Thompson lost his seat in the 2013 general election, showing how the people within his electorate held him accountable. In the 2013 general election, Liberal MP Sophie Mirabella was the only Liberal member to lose their seat. This was found to be linked to the fact that she was not prioritizing her duties as a representative of her electorate as much as her duties as shadow minister in addition to claims regarding her personal conduct, as a result she was voted out for the more favourable Cathy McGowan. She was picked as the Liberal candidate for the seat in the 2016 general election, but before the election she publicly stated on a sky news interview that her electorate missed out on a 10 million dollar health package because she was not elected. This media event backfired, with the majority of electors being insulted and the electorate voting to bring Cathy McGowan back as the member of the House. The people within that electorate were thus able to hold their elected member strongly to account.

Question 28

How do majoritarian electoral systems misrepresent the true intentions of the collective voting body to a certain extent?

Answer 28

All majoritarian electoral systems incorporate what is known as a ‘winners bonus’ to a certain extent. In any individual electorate, it is extremely difficult for a minor party candidate to win a seat, it almost always falls towards a major party. In this way, the influence of the major parties and in particular the party that wins government is almost always exaggerated in a majoritarian system. The composition of the lower house therefore is not reflective of the voting intentions of Australia as a whole.

Question 29

Why is the Senate not held to account for its traditional role?

Answer 29

The Senates traditional role in the constitution was to represent the States, however even directly after federation Senators almost always represented their parties over their states interests. Therefore, Senators are held to account for the actions of their party not the representation of their state. There are examples of Senators showing representation to their states, however, such as the Nick Xenophon team in its representation of South Australian interests.

Question 30

How is the main aim of the proportional voting system achieved?

Answer 30

A proportional voting system aims to achieve proportionality between the number of votes a party receives and the number of seats they gain in Parliament. This aim is achieved in the Senate through the use of multi-member electorates, since in multimember electorates support for minor party candidates can get them elected.

Question 31

What factors affect the accountability of voting in the Senate?

Answer 31

* The existence of multimember electorates * The single transferable vote system * The frequency of election terms * Constitutional malapportionment

Question 32

How do multi-member electorates and by extension the proportional voting system fair in terms of accountability?

Answer 32

Multi-member electorates do not achieve the same level of accountability that single member electorates do. There are multiple candidates that are elected per electorate so a voter does not know who they should hold to account for the performance of the electorate within parliament, and multiple members makes it difficult for a voter to have a connection with their representative and track their actions within Parliament. Moreover, the Single Transferable Voting system that is used in the Senate makes the voting system more complicated and harder for a voter to try hold an individual accountable. Over 90% of voters regularly vote above the line where a voter must number at least four parties rather than candidates, and the parties themselves have control of which of their candidates are higher in the group voting ticket, so accountability for individual Parliamentarians is weak. Voting below the line allows a voter to direct their vote to individual candidates, and with the introduction of the 2016 Senate voting reforms it is now far easier for a voter to vote below the line and the risk of an informal vote had decreased. Because there is a such small amount of people who vote below the line though, accountability remains weak within multimember electorates.

Question 33

How does the frequency of Senate elections affect accountability?

Answer 33

The frequency of Senate elections reduces accountability as well, six years is quite a long election term which gives fewer opportunities for voters to hold their representatives directly to account. Bill Heffernan for example was a Senator from 1996 to 2016 but only faced the electorate twice.

Question 34

How does constitutional malapportionment weaken accountability in the Senate?

Answer 34

Constitutional malapportionment is guaranteed through section seven of the constitution, which means that voters from New South Wales have approximately 13.7 times less voting power than voters from Tasmania in the upper house. What this means in terms of accountability is that Tasmanian Senators are held to account far weaker than New South Wales Senators because they are answerable to a significantly smaller section of the population. An example of such a Senator who was not held to account as a result of this is independent Senator Brian Harradine who single handily held the Senate balance of power form 1994-1996 whilst being accountable to a comparative small number of voters.

Question 35

How can the margin by which a seat is held in the lower house contribute to accountability?

Answer 35

Seats in the lower house are referred to either as marginal or safe seats depending on how close the last election in that seat was. Marginal seats are often targeted by rival parties or pressure groups because they are the easiest seats to potentially win. The candidate in a marginal seat therefore is examined under very close detail and held to the highest state of accountability for their actions. The term of Parliamentarians in safe seats is watched very carefully and those members are conscious of the fact that their actions are being watched, thus accountability is ensured for their entire electoral term. Major party leaders will often visit as many marginal seats as they can before an election. An example of a marginal seat is the seat of Cowan, which up to 2016 was held by a Liberal MP but after the 2016 election the seat was won by a Labor MP by a margin of just over one thousand votes.

Question 36

How can sitting member last campaigns promote accountability?

Answer 36

Sitting member last campaigns target individual candidates and hold them highly accountable by attempting to get them placed last on the preference list by as many voters as possible. This can have a highly damaging effect to the final vote share between the two most likely candidates, and can lead to the opposing candidate winning the seat only after preference distribution. An example of a sitting member last campaign is in the 2016 election for the seat of Bass in Tasmania that was being held by Liberal member Andrew Nikolic. Andrew lost his seat by more than 10% owing greatly due to the sitting member last campaign organised by the pressure group Getup.

Question 37

How do privilege committees fulfil a role in accountability?

Answer 37

Parliamentary privilege as well as the general conduct of Parliamentarians is monitored by the privilege committees in each house, in this way the privilege committees ensure accountability in Parliamentarians for their conduct and their speech in Parliament. For example, in 2012 when Labor MP Craig Thompson was under investigation for money laundering in his former position as the national secretary of the Health Services Union, he made statements to the House of Representatives saying that he had been framed by other members of the union. These statements were in breach of Parliamentary privilege and the claim went through the Privilege Committee within the lower house. The Committee only delivered its findings in 2016 and decided that Mr Thompson should be ‘reprimanded’. The weakness of the privilege committees is that they are made up of members of Parliament themselves who are not an independent body, and it also has no power to make any legal sanctions against members who are found to have breached Parliamentary Regulations.

Question 38

How do interests committees fulfil roles in accountability?

Answer 38

Interests committees ensure that there are no conflict of interests that exists for Parliamentarians, which ensures that Parliamentarians are held accountable for their positions as policy makers to ensure that they are making policy to benefit their electorate not themselves.

Question 39

What is the role of the speaker and the president of the house and how can this infringe upon accountability?

Answer 39

The roles of the Speaker in the House of Representatives and the President in the Senate are to act as the presiding officer of each house, enforcing and interpreting the standing orders of that particular chamber. Parliamentarians are subject to the will of their presiding officer and they have the power to expel members from their chamber for a certain period of time due to an infringement of the standing orders. The president is elected by the whole of the Senate which usually means there is compromise between the government and the other parties, but the speaker is chosen only by the government. This can infringe upon accountability because the speaker can apply standing orders in a biased manner, they may even feel pressured to do so since their position is held at the discretion of the government and therefore the Prime Minister. For example, from 2013-2015 the speaker Bronwyn Bishop ejected 400 members from the House, a mere three of these being government members.

Question 40

What is the overall significance of standing orders in relation to accountability?

Answer 40

Standing orders are important for ensuring due process within Parliament. Without rules that outline how processes are carried out, there would be inequality among members within the Parliament. Standing orders establish due process for procedures like question time and the statutory process, and if they didn’t exist these processes would become extremely inefficient and also unfair. The fact that the government is able to change standing orders whenever they want however significantly weakens accountability in the lower house because theoretically the government can change rules to benefit themselves and burden the opposition.

Question 41

How does Hansard promote accountability?

Answer 41

Hansard provides transparency between the people and the government by ensuring that everything that is said in Parliament is recorded and published for anyone to read. This ensures that the people know what Parliamentarians are saying in Parliament and the people can hold them to account directly for what they say.

Question 42

How is the work of Parliament accomplished if it only sits about one third of the year?

Answer 42

Parliament is able to complete its work efficiently and effectively through the principles of division of labour and specialization. Committees divide the different aspects of policy that Parliament considers and these committees then specialise in certain areas of policy. Committees have a specific membership and area of work to focus on, in this way the work of Parliament can be done in the most efficient way.

Question 43

Describe how the membership, duration and purpose of committees is determined

Answer 43

Committees can be either standing or select and either in the House or the Senate. The members must be of the current Parliament and can only participate in committees in their house or joint committees. All committees have a specific purpose, whether that be a general area of legislation that they review or a specific issue that they follow up. Some committees also inquire into the actions of the government and the public service. All standing committees are created on the first sitting day of Parliament and select committees are created as they are needed.

Question 44

How is the composition of a committee determined and how does this impact the effectiveness of the committee?

Answer 44

The composition in terms of party representatives in each committee is proportionate to the composition of their respective chamber of Parliament. This means that all House committees are dominated by the executive but Senate committees are not and a much more diverse range of members can participate. There is clearly executive dominance in the House committees however this does not mean as much as it does in the House itself since committees are usually far less adversarial than the main chamber because the media and public eye is far less interested in what goes on inside them. This drops the need for political ‘point’ scoring and enables members form different parties to be far more cooperative.

Question 45

How do committees promote accountability within Parliament?

Answer 45

Committees are the strong backbone of Parliamentary procedure, they ensure far better than any of the main chambers that the functions of Parliament are carried out. Through debating, inquiring into, submitting proposals for legislation and seeing to represent people from certain sectors of society committees allow the functions of Parliament to be carried out away from the sensationalist floors of the main chambers, free from political point scoring. Committees raise the standards of Parliament significantly, and that is what accountability does, raises the standards.

Question 46

Explain how the Joint Committee on Human Rights and the Scrutiny of Bills Committee specifically focus on accountability

Answer 46

The Joint Committee on Human Rights as of 2011 is now mandatory to be created at the start of each Parliament. The committee ensures that all bills passed within Parliament comply with the international law on human rights and thus holds Parliament to account for the morality of its legislation. The Scrutiny of Bills Committee has been active since 1981 and reviews all legislation to make sure that it complies with the rule of law, certain assumed rights and Parliamentary propriety. Both these committees further accountability by ensuring the bills comply with expected standards.

Question 47

Outline the two ways in which the Judiciary can hold Parliament to account

Answer 47

The judiciary can hold the Parliament to account in two main ways: • By exercising the High Court’s power to adjudicate on the constitutional validity of any legislation passed in Parliament • By exercising the High Court’s and other federal courts power to interpret legislation passed within Parliament

Question 48

Explain how the High Court exercises its power to review the constitutional validity of legislation

Answer 48

Legislation that is passed within the federal Parliament must comply with the constitution, it therefore must be listed under the Parliamentary heads of power. If a party believes that this is not the case, they can then bring the case to the High Court, and only then can the High Court make a decision regarding the constitutional validity of certain legislation. The High Court cannot declare a law ultra vires if it is not brought before them, that is referred to as unchallenged legislation. A law that is declared ultra vires ceases to be enforceable in the Commonwealth immediately. An example of this process occurring is in 1951 with the Communist Party case. The Menzies government had passed a law in 1950 which forced the dissolution of the Communist Party and allowed the Governor General to declare further organizations affiliating with the Communist party unlawful and force them to dissolve as well as choosing people who were not allowed to be employed by the Commonwealth for Communist sympathies. The legislation as passed as a campaign promise, but in 1951 the Communist Party and various trade unions brought the case to the High Court, which ruled that because Australia was not in a state of war the Parliament did not have the power to outlaw certain organizations and thus the law was ultra vires. A more modern example is in 2014 when the High Court declared an amendment to the Financial Management and Accountability act 1997 ultra vires because the amendment tried to give the government a way of providing schools funding for chaplains but the High Court ruled that this did not constitute ‘direct benefits to students’ which is the head of power under section 51(xxiiiA).

Question 49

Explain how the Judiciary ensures accountability through statutory interpretation

Answer 49

The Courts are responsible for interpreting the will of the Parliament, but Parliament intentionally makes laws general so that they can apply to a broad range of situations and so that the courts can have some flexibility in the way they interpret the laws to ensure justice. Judges use maxims of statutory interpretation such as ejusdem generis and noscitur a sociis as well as the literal, golden and mischief rule to assist in interpreting several statutes so that they can apply to society in the way that the judges believe Parliament would have wanted. However, if judges must continually resort to using the mischief rule and interpreting legislation in a very broad manner then it sends a clear signal to Parliament that they should review the legislation so that it operates better within society. This is the synergy between the courts and the Parliament, Parliament makes the laws and the courts react and prompt review if the law is difficult to administer. In this way the courts hold the Parliament to account for creating effective legislation that can apply to a range of situations fairly.