Accountability

Bede Harris, author of the exemplary A New Constitution for Australia (London: Cavendish 2002) and new Constitutional Law Guidebook (Oxford: Oxford Uni Press 2009), has an Op Ed in today's Canberra Times. (The text is here but will shortly disappear behind the CT firewall.)

Dr Harris highlights two key changes to increase the accountability of the executive to the legislature: reform of the electoral system and an enhancement of the power of parliamentary committees.

First, in order to break the Labor/Coalition duopoly, it is necessary to adopt proportional representation for the House of Representatives. Unlike electoral systems based solely on geographic electorates, which favour parties with concentrations of support, proportional representation gives minor parties and independents a real chance of obtaining representation. This makes it far more difficult for large, monolithic parties to survive unless they act in a far more consultative way internally, because disaffected members can simply leave and form their own party.

He goes on to suggest "a radical change to the law of parliamentary privilege".

Although in theory parliamentary committees have the power to subpoena ministers and public servants, and to sanction them if they refuse to answer questions, that common-law power has never been tested at Commonwealth level (although it has been affirmed by the High Court in the case of the NSW Parliament). Ministers frequently refuse to answer questions and prohibit public servants from doing so. However, the law allows sanctions to be applied only by a House as a whole, rather than by committees.

The political reality is that ministers will never be called to account for refusing to answer questions: the two major blocs cooperate in shielding each other from scrutiny ... The remedy for this is to amend the Parliamentary Privileges Act so as to make ministers compellable witnesses before parliamentary committees, subject only to a court-adjudicated public immunity test, as was proposed by the Australian Democrats in a Bill introduced in 1994.

Furthermore, the power to compel evidence should be exercisable by a committee or a member thereof.

He notes in conclusion that

It is a matter of supreme irony that the legislative branch in the US has far greater power over the executive than does Parliament under our supposed system of responsible government, where the executive operates safe in the knowledge that it will never be subject to sanction by parliamentary committees so long as the two major parties collude in ensuring that Parliament's powers are never fully exercised.