Part I: Overview
What is the executive?
The Australian Government, like most Western democracies, follows the principle of separation of powers, where the three arms of government (the parliament, the executive and the courts) are independent of each other. This is supposed to protect against abuse of power and ensure each arm of government can keep the other arms accountable. The diagram below outlines the three arms of government.
Australia is a parliamentary democracy. The members of Parliament are elected by the citizens of their respective electorates to represent them in the law-making process and those citizens get a periodic opportunity to change representatives. Parliament in turn chooses some of its members to form the executive, delegates some functions to it, and holds it accountable for the manner in which it discharges those functions. In theory, the executive is accountable to Parliament which is accountable to all Australian citizens.
The executive arm of government is made up of the Prime Minister and the Cabinet (senior Ministers). Ministers are responsible for overseeing the departments and agencies under their portfolio. The fact that Ministers are also members of Parliament means there is not a strict separation of powers between the executive and the Parliament, which is often cited as a potential for abuse.
The executive administers and implements law and policy. For example, the Minister for Home Affairs is responsible for carrying out laws under the Migration Act 1958, as well as developing policy and practices to support those laws. As such, the executive can wield significant power under law, laws which can have significant impact on the lives of refugees and people seeking asylum.
The judicial arm of government refers to the courts, including the High Court and federal courts. The judiciary is responsible for interpreting the law, applying it to the case before it, and making binding decisions. Of relevance, an important function of the courts is to review the lawfulness of executive action. However, the courts are limited to only reviewing the legality of a decision, not the merits of such action. Administrative tribunals, such as the Administrative Appeals Tribunal, on the other hand, are quasi-judicial bodies which are responsible for reviewing the merits of an executive action.
This report, however, deals with non-judicial accountability mechanisms, and as such has not considered the role of the courts and tribunals in holding the executive to account.
Phil Larkin, ‘Ministerial Accountability to Parliament’ in Keith Dowding and Chris Lewis (eds), Ministerial Careers and Accountability in the Australian Commonwealth Government (ANU ePress, 2012) 95, 97.
What are non-judicial accountability mechanisms?
Non-judicial accountability mechanisms refers to a range of systems established to hold the executive accountable, outside of litigation in the courts. In this report we look at Freedom of Information legislation, the Parliament, the AHRC and Commonwealth Ombudsman and international mechanisms, including UNHCR and the UN Human Rights Committee, among others.
The non-judicial accountability mechanisms have been important in keeping the executive accountable. They have produced key reports and provided important information that the government has not wanted in the public sphere. They have produced outcomes for individuals behind the scenes, and provided avenues to influence the government.
The effectiveness of such mechanisms depends on certain preconditions. These include awareness of such mechanisms, their accessibility, and the capacity (including time and support) to use these mechanisms. It also depends on the capacity of these mechanisms to work effectively, including through their institutional mandates, resourcing, and their relationships with the sector and with government.
Most importantly, these mechanisms ultimately rely upon the receptiveness of a government to consider their recommendations, and a recognition of the value and need for accountability. Non-judicial accountability mechanisms typically rely on persuading the government and cannot compel governments to act. Government policies and administrations that favour secrecy make it much more difficult for these mechanisms to ensure accountability and transparency. Governments can routinely reject recommendations, resist change or disclosure, or create enough administrative friction that people give up.
Nevertheless, non-judicial accountability mechanisms play a vital role in holding the executive to account, especially during this time when the government is implementing harmful policies and practices against refugees and people seeking asylum.