ACCOUNTABILITY OF COMMONWEALTHclassic.austlii.edu.au/au/journals/FedLawRw/1980/26.pdf · 2018-10-27 · may be independent 0/ ministerial and parliamentary control. On the assumption

ACCOUNTABILITY OF COMMONWEALTHSTATUTORY AUTHORITIES AND "RESPONSIBLE

GOVERNMENT"

By JOHN GOLDRINO*

Recently, attention has been drawn to the proliferation in Australia0/ statutory authorities, which appear to be, to some extent, independent of government control. The Australian Constitution requiresresponsible government, and this article attempts to determine theextent to which the Constitution permits the establishmentof statutoryauthorities outside the traditional organisational structure of ministerial departments 0/ state, and to what extent such authoritiesmay be independent 0/ ministerial and parliamentary control. Onthe assumption that responsible government requires some measureof accountability of all parts 0/ the executive government 0/ theCommonwealth, the article examines the extent to which statutoryauthorities are accountable in accordance with the provisions 0/ theConstitution, and also whether any other areas 0/ law, especiallyadministrative law, may provide some measure 0/ accountability ofstatutory authorities.

1. INTRODUCTION

A lawyer considering the place of statutory authorities in the structureof the government of the Australian Commonwealth in 1980 facessomething of a dilemma. On the one hand, there are frequent assertions1

of a principle, important in the decision of the Engineers' case,2 that thesystem of government in the Commonwealth is responsible government,in which the policy-making role of Ministers is central. On the otherhand, at least one reputable political scientist3 has argued that "responsible government" no longer accurately describes the system of governmentin Australia; and there are howls of outrage from certain politicians atthe proliferation of "Qangos", independent statutory authorities, whichare part of "big government" but free from parliamentary control. Morethoughtful bodies, such as the Coombs Commission on GovernmentAdministration" and the Senate Stan~ing Committee on Finance and

• B.A., LL.B. (Syd.), LL.M. (Col.); Professor of Law, Macquarie University.1 E.g. N.S.W. v. The Commonwealth (1975) 135 C.L.R. 337, 364-365 per

Barwick C.l. Other examples are given n. 32 infra.2 (1920) 28 C.L.R. 129, 146..147.a Emy, "The Public Service and Political Control: The Problem of Account

ability in a Westminster System with Special Reference to the Concept ofMinisterial Responsibility" in Report of Royal Commission: Australian Government Administration (1976) (hereafter cited as "RCAGA") Appendix lB.

"RCAGA 4.4; cf. First Report of the Board of Inquiry into the VictorianPublic Service (1974); Wilenski, Review of New South Wales GovernmentAdministration. Interim Report. Directions for Change (1978) ch. 3.

353

354 Federal Law Review [VOLUME 11

Government Operations,S recognise that there may be a justification forthe existence of some statutory authorities which are to a greater orlesser degree free from direct government control, though there are toomany of them, that the statutory authority structure might be inappropriate for the purpose, and that the means of control and accountabilityof such authorities are unclear, varied, and often inadequate.

"Responsible government", on the Westminster model, has alwaysassumed that responsibility of government is through Ministers to therepresentatives of the people in Parliament. This system was the justification for some of the failures of traditional administrative law; therules of administrative law would not permit the courts to reviewadministrative decisions on their merits, largely on the assumption thatsuch review was effectively carried. out by Parliament. Yet the Commonwealth Administrative Review Committee found6 that the CommonwealthParliament was unable or unwilling to carry out this review as often asnecessary, if at all, and recommended the establishment of machinerywhich would examine not only those aspects of administrative decisionswhich were subject to review by the courts under establishedadministrative law rules, that is, the powers and procedures of thedecision-makers, but also the merits of administrative decisions. Theserecommendations, and the ancillary recommendations that those affectedby administrative decisions should have the means of knowing thatdecisions have been made and the reason for those decisions, havelargely been enacted as the Administrative Appeals Tribunal Act 1975(Cth), the Ombudsman Act 1976 (Cth) and the Administrative Decisions(Judicial Review) Act 1977 (Cth). Both the Ombudsman and theAdministrative Appeals Tribunal are themselves statutory authorities.But through them, it is suggested, the inadequacies of parliamentarysupervision of administrative action have been remedied" at least in part,and even if current investigation by, for example, the Senate Committee,leads to other reforms, the "New Administrative Law" provides a meansof making statutory authorities, like other parts of the executive government, more accountable. Statutory authorities appear to be part of theexecutive government of the Commonwealth.'

It would appear that the concepts of "accountability" and "responsiblegovernment" are connected: accountability seems to be one of theattributes of responsible government. But it may be the case that evenwithin the executive government of the Commonwealth there are elementswhich do not comply with the requirements of the Constitution thatgovernment be responsible. This article attempts to examine the' extent

G Senate Standing Committee on Finance and Government Operations (hereafter cited as "Rae Committee"), Statutory Authorities of the Commonwealth •First Report (1979) Parliamentary Paper No. 1/1979, cbs 1 and 2.

6 Commonwealth Administrative Review Committee (hereafter cited as "KerrCommittee"), Report (1971) Parliamentary Paper No. 144/1971, para. 363.

, E.g. Repatriation Commission v. Kirkland (1923) 32 C.L.R. 1.

1980] Accountability of HResponsible Government" 355

to which the Constitution permits the existence of statutory authoritiesand the extent to which they must be subject to the control and directionof Parliament and other organs of government. It also examines whetherother areas of the law, especially the principles of administrative law,may provide some means of accountability and responsibility of statutoryauthorities.

Only the statutory authorities created by or under the authority ofthe Commonwealth Parliament are examined here. It may be thatsimilar principles of constitutional theory and administrative practiceapply to the governments of the States, though it is not so clear that anyof the State Constitutions, while establishing systems of responsiblegovernment, contain provisions similar to those of section 64 of theCommonwealth Constitution, which may be open to an interpretationwhich affects the creation or operation of statutory authorities.

In practice, every statutory authority is, either directly or indirectly,subject to the political and financial control of the government of theday.8 No matter to what extent a statute may seek to provide that anauthority is to be free from political control, the government has threemajor means of exercising influence. First, unless the authority is financially self-sufficient, it will depend on Parliament for its funds, which mustbe appropriated according to law.9 In practice, and in law, no appropriation will be made unless the government approves.10 Secondly, ingeneral, the appointment of individuals to fill the statutory offices willbe in the gift of the government of the day. Finally, subject to theConstitution, Parliament can repeal or amend any legislation which ithas enacted. This is the ultimate sanction. In fact, it is usually notnecessary for the government to invoke any of this machinery; themerest hint of any of these types of action is often enough to pull theauthority into line with the views of the government.11 In terms of majorpolicy, the independence of statutory authorities is as mythical as theresponsibility of Ministers to Parliament.

The question of the legal and constitutional position of statutoryauthorities has arisen in other countries, notably Canada,12 but there,as in Australia, possibly with good reason, the consideration has focussedon political and financial accountability of statutory authorities. Nevertheless, it does seem an opportune time to examine the legal andconstitutional aspects as well.

8 Kernaghan, "Political Control of Administrative Action: Accountability orWindow-Dressing?" (1976) 17 Les Cahiers de Droit 927; Harding, OutsideInter/erence (1979) gives an account of political pressures on the AustralianBroadcasting Commission.

9 Commonwealth Constitution, SSe 81, 83.10Id. s. 56.11 Harding, Ope cit. chs 2, 3, 6.12 Canada, Privy Council Office, Crown: Corporations: Direction, Control,

Accountability (1977); Law Reform Commission of Canada Working Paper 25,Administrative Law: Independent Administrative Agencies (1980) especially 13-15.


2. STATUTORY AUTHORITIES

a. What is a UStatutory Authority"?

In the study of public administration, much attention is given to thedefinition and classification of the many types of commissions, corporations, offices and instrumentalities which at some time or another arereferred to as "statutory authorities". For the purpose of this legalanalysis little classification is required and the definition of "statutoryauthority" by Professor Enid Campbell which was accepted by the RaeCommittee appears adequate:

An office or organisation, corporate or unincorporated, constitutedby or pursuant to powers conferred by an Act of Parliament whosefunctions and authority are derived wholly or principally from Actof Parliament or from subordinate legislation made thereunder.13

This definition excludes various corporations, such as Qantas AirwaysLimited, which is incorporated under the Companies Act of Queensland.In functional terms, the operations of such corporations may be indistinguishable from those of a statutory authority established under theterms of a specific Act or Ordinance. Many authorities created specificallyby legislation are given corporate status, but the fact that they arecreated by a particular piece of legislation marks them out from corporations incorporated under, for example, the Companies Act 1961(N.S.W.). The very fact that they owe their existence to a specific pieceof legislation makes the statutory authorities considered in this articlesignificantly different. Principles of administrative and constitutional lawapply to them which do not apply to companies incorporated under theprovisions of the Companies Act. Conversely, principles of law whichapply to companies often have no application to statutory authorities.

b. History of the Development and Use of the Statutory Authority inA ustralia14

Before the extensive reforms of the public service in Britain in theearly and middle parts of the nineteenth century, much of the administration, which admittedly then had a smaller role than it does today,was in the hands of boards and commissions whose members wereappointed by Ministers purely on the basis of patronage. To some extent

13 Administrative Law Study Guide, Faculty 0/ Law, Monash University (1977)28, quoted in Rae Committee, First Report Ope cit. para. 2.5.

14 Most of what appears in this part of the article is the result of my associationwith Dr Roger Wettenhall, and is based on his work, notably "Early RailwayManagement Legislation in New South Wales" (1960) 1 Tasmanian UniversityLaw Review 446; "Modes of Ministerialisation" (1976) Public Administration(Part I) 1, (Part II) 425; "Report on Statutory Authorities", RCAGA AppendixIK; "Commonwealth Statutory Authorities: Patterns of Growth" (1977) 36Australian Journal of Public Administration 351; "Commonwealth StatutoryAuthorities: Exploring the Field" (1979) 38 Australian Journal of PublicAdministration 176. The Canadian position, summarised by Canada Privy CouncilOffice, supra n. 12, 11-15, is similar.

1980] Accountability 0/ "Responsible Government" 357

the vestiges of this system survive in the United States today. It wasjustified on the ground that it protected Ministers against the growthof a powerful bureaucracy which might come to exercise real power.However, it was also criticised by the "democrats" for whom representative and responsible government was an article of faith, on the basisthat the execution of policy, enacted into legislation by the Parliament,and the advice given to the Sovereign in respect of the exercise ofprerogative powers should be in the hands of a Minister who sat in theParliament and depended on the Parliament's support for his continuancein office. It followed that those responsible for the day-to-day executionof the laws and the business of government would be responsible to aMinister; they would form part of a department of state, for the wholeof whose activities the Minister would answer to the Parliament. Theministerial department became the normal structure for governmentadministration.1s

This was the model which was accepted in the United Kingdom at thetime the Australian colonies were achieving internal self-government; aswith so much else of the machinery of government, the colonies acceptedthe British, particularly the English, model. In the Australian coloniesself-government was responsible government, and ministerial departments on the Westminster model flourished, but geographical differencesled to modification of the model. The great distances led to the failureof the early projects for railways to be constructed and operated byprivate -enterprise as in Britain. Railways were obviously desirable but,because they were unlikely to show an immediate profit, the interventionof the state was necessary to ensure that they were built. Yet if politicianswere to determine where railways were to be built, and who was toobtain work on the railways, there were many opportunities for porkbarrelling and corruption, and especially for inefficiency. It was decided,first in Victoria, that it was desirable for the railways to be placed underthe control of a Commission, which would be independent of politicalcontrol, at least in its day-to-day operations.16 The arrangement survived,though with less independence than had been hoped; it was copied inmost respects in New South Wales by the Government of Sir HenryParkes, with a greater degree of independence of the Parliament, and agreater degree of efficiency.17 This type of statutory authority or Commission became the model for the organisation of other public utilitiesin the Australian colonies.

The model was seen as a means of maintaining the operations of somepublicly-owned utilities free from the rather rigid procedures _andpersonnel requirements of the public service; and while Parliaments

15 Webb, "Freedom and the Public Corporation" (1954) 13 Public Administration 101.

16 Eggleston, State Socialism in Victoria (1932); Wettenhall, Railway Management and Politics in Victoria, 1856-1906 (1961).

1'7 Wettenhall (1960), Ope cit.


could, if they wished, exercise policy control over the authority, andappointments to its managing body, they had little influence over itsoperations and staffing policy. As governments came more and moreunder the influence of the political arm of the Labor movement, theyaccepted that state intervention in many other areas of the economy wasjustified and in many cases necessary. The statutory authority modelwas a convenient one for the establishment or operation of a stateowned enterprise, especially where it was somewhat "commercial" in itsoperations. With the establishment of "orderly marketing" of primaryproducts, again the statutory authority was a suitable device.

It was not surprising that, at Federation, the founding fathers tookover from the colonies not only the forms of government, but also thetypes of apparatus used by the colonial governments to carry on theiroperations. The Constitution itself, in section 101, provided for theestablishment of an Inter-State Commission, modelled on English,American, and colonial commissions,18 to control interstate trade andcommerce. However, there was no other specific mention of statutoryauthorities in the Constitution. This did not hinder the Parliament fromcreating such authorities: ten were created by 1910, and thereafter therewas a fairly steady, and at times spectacular, growth in the number ofauthorities.19 The Rae Committee identified 241 Commonwealth statutoryauthorities in 1978 (not including statutory authorities established underthe legislation of the Territories, of which there may be an equalnumber) and admitted that its list may not be complete.-

The functions and classification of the various statutory authoritieswill be considered infra, but it is worth noting that they fall into anumber of different types. The RCAGA identified some general principles which might justify the existence of independent statutoryauthorities.21 Though these principles are under scrutiny by the RaeCommittee, and though the RCAGA considered that the number ofstatutory bodies should be reduced and that, where possible, functionsshould be assumed by departments,22 those principles are worth stating:

The independence may be required:

(a) to avoid political control or full political accountability, aswhen the function is quasi-judicial, regulatory, involves grantsor subsidies, or entails higher educational opinion-forming orresearch activities; or

(b) to avoid departmental procedures or control, for example whenperformance of commercial activities is required, particularly

18 Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) 825.

19 Wettenhall (1977), (1979), Ope cit.20 Rae Committee, First Report Ope cit. ch. 2; in its Fourth Report (1980)

Parliamentary Paper No. 107/1980, the Committee has noted a further growth inthe number of statutory authorities.

21 RCAGA para. 4.4.10.DId. para. 4.4.2.

1980] Accountability of "Responsible Government" 359

in competition with private enterprise, or when a separatechannel of advice or separate evaluation of policies is desired;or

(c) to relieve ministers of responsibility for day-to-day adminis-tration of detailed and self-contained tasks.23

In fact, many of the statutory authorities of the Commonwealth Government fit under one or more of these classes. Some, such as the AustralianNational Airlines Commission, the Australian Coastal Shipping Commission, the Australian Broadcasting Commission, Telecom Australia, thePipeline Authority, and the various statutory primary products marketingauthorities carry on activities which may be described as "commercial",whether or not the authority competes with privately-owned enterprisesor whether it enjoys a statutory monopoly. It may be desirable that suchbodies should not have to comply with the rather rigid requirements ofthe Public Service Board with respect to, inter alia, staff and procedures.For some such "enterprise" authorities it is necessary that personnelemployment and procedures more closely resemble the practices of aprivate corporation than a department of state. Others, like the AustraliaCouncil, administer grants and subsidies, and for this reason should atleast be seen to be independent of the control of Ministers, whosemotives may appear to be politically coloured. A further group, includingthe Trade Practices Commission, the Taxation Boards of Review, theAdministrative Appeals Tribunal, and, perhaps most importantly, theConciliation and Arbitration Commission, exist to regulate variousaspects of social and economic activity. Yet others, like the C.S.I.R.O.,the Law Reform Commission and the Australian National University,carry out research and teaching, which, it is thought, are best donewithout political control. The Rae Report contains a full classification.24

There remains a significant number of authorities whose activities arein practice indistinguishable from those of the departments of state, andmuch of the critical comment has been directed towards them.

Political scientists and administrative theorists admit readily that thestatutory authority is part of the machinery of government, and that itshould not be exempt from the normal processes of democratic government. A typical view is that of Sir Richard Boyer, then Chairman of theAustralian Broadcasting Commission, writing in 1957:

Parliament is the supreme expression of the people's sovereigntyin a democratic society and its Ministers, either corporately as aCabinet., or individually as holders of their portfolios, are heldresponsible to Parliament, and through Parlialllcnt to the electorate.There are therefore two interrelated problems which have to befaced in the creation of a Statutory Corporation. The first is theobvious one of principle. Parliament cannot divest itself of all

23ld. para. 4.4.10.24 Cf. Wilenski, Ope cit. paras 3.7-3.12.


responsibility for any of its actions, including the actions of bodiesset up by it. It has therefore to determine the degree and themethods of delegating day-to-day responsibility while retainingnecessary reserve powers. On the other hand Parliament has todevise, in the setting up of its Corporation, machinery which willbe effective administratively and appropriate for its particularactivity. Unless both these requirements can be met, there areseeds of trouble, and possible failure must be reckoned with, butto satisfy both is by no means easy. If the accent is to be heavilyplaced on the safeguarding and magnifying of Parliament's reservepowers, the necessary measure of independence and sense ofresponsibility of the Corporation is apt to be lost. On the otherhand, if the efficiency of the Corporation is sought to the exclusionof proper democratic safeguards, the whole concept of publicresponsibility can be in jeopardy.25

But perhaps the model suggested by Sir Richard no longer applies: forthe bureaucrats inside the ministerial departments, and the Ministersthemselves, may already have placed matters in a situation where theindependence of statutory authorities, at least on issues of major policy,and on some matters of administration, is merely a myth. This may bealso the result dictated by law. In addition, Sir Richard's model contemplates accountability and responsibility of statutory authorities toParliament, and through Parliament to the people. It does not contemplate a direct responsibility of those authorities to the people affectedby the activities of the authorities, which may be the result of changesin administrative law. It is to those questions that this examination ismainly directed.

c. Classification of Statutory Authorities

Much of the effort of the RCAGA and its advisers and consultants,and also of the Rae Committee, and of similar inquiries in Canada,has been devoted to the classification of statutory authorities. This isappropriate, as different accounting or policy requirements may apply toan authority set up to register tax agents from those of an authority setup to operate interstate airline services or to enforce the law relatingto restrictive trade practices. If there are criteria by which someclassification of statutory authorities can be made, for the purpose ofdifferentiating between the legal principles which apply, they may be:first, whether the statute establishing the authority provides a measureof control and direction in the Minister or not, and secondly, whetherthe authority is "purely governmental" (or "purely administrative") orwhether its functions are quasi-judicial. However, from the strictly legalview, all statutory authorities are established as part of the executivegovernnlent, and if the Constitution requires, as will be argued, that the

25 Boyer, "The Statutory Corporation as a Democratic Device" (1957) 16Public Administration 29, 30.


executive government in all its parts be responsible and accountable,then the same legal questions arise in respect of all statutory authorities.

A point which may be relevant is whether the authority is establishedindependently of a department of state, or whether it is intended to existand operate within such a department. For example, though the Ministerfor Business and Consumer Affairs is responsible for the Trade PracticesCommission, the Commission, physically and administratively, is quiteseparate from the Department of Business and Consumer Affairs.However, the same Minister is also responsible for the activities of theComptroller-General of Customs, and the Comptroller-General and theBureau of Customs form a central part of the Department. The DirectorGeneral of Social Security and the Secretary of the Department ofTransport are both the Permanent Heads of their Departments, and bothare statutory authorities, having functions conferred upon them bystatute; the functions are independent of the departmental roles whichthe officers play, but it may well be that in their operations the officersmake no real distinction between their activities as departmental officersand those which they perform in their role as statutory authorities. Thismay have some constitutional significance.

3. "RESPONSIBLE GOVERNMENT"

In the standard works on political theory and on constitutional lawit is difficult to find a definition of "responsible government" thoughmany of the authors describe how the concept operates.26 In Australia,the position is substantially less clear after the events of 1975. In outline,it may be assumed that the concept envisages a situation where theexecutive government depends upon some other institution or collectionof persons for its tenure of office, and is therefore required to accountto that other institution or those other persons for the manner in whichthe functions of the executive government are carried out. In the Westminster system, which couples representative government with responsiblegovernment, the executive government, in this case the Cabinet, dependson the support of the House of Commons for its tenure of office, and,in theory, must answer to that body for its actions. There has beenconsiderable discussion of whether and to what extent this responsibilityis collective or individual, but that is not pertinent here.

Quick and Garran27 assumed that this was the system of governmentaccepted by the founding fathers as the basis of the government of theAustralian Commonwealth. Yet federalism was also basic to the creationof the Constitution, and the only basis upon which the smaller Stateswould accept federation was the existence of a States' House, or Senate,with strong powers. At the 1891 Convention the newspaper proprietor

26 E.g. de Smith, Constitutional and Administrative Law (3rd ed. 1977) 161-172;Jaensch and Weller (eds), Responsible Government in Australia (1980).

21 Ope cit. 706.


J. W. Hackett, who was a delegate from Western Australia, emphasisedthe need for a strong Senate, and expressed his view that responsiblegovernment was not successful in the Canadian federation. He also saidthat he did not believe that it had succeeded in the United Kingdom;he appeared to be rather sceptical of democracy, and put States' rightsin the federal compact above the democratic interest. He made, thefamous statement that "either responsible government will kill federation,or federation in the form in which we shall, I hope, be prepared toaccept it, will kill responsible government".28 The power of the Senate,as demonstrated in 1974 and 1975,29 is such that the Australian Commonwealth system of government is not responsible in the same senseas the government of any of the States, or indeed of any other nationwith a system of responsible government. Despite the fact that theUpper Houses of the State Parliaments can refuse, and have refused,Supply, it does not appear even to have been questioned seriously thata government with the support of a majority of members in the LowerHouse should provide the executive government of the State. Theprovisions of sections 7 and 57 of the Commonwealth Constitution givethe Senate a hold on office that distinguishes it from other UpperHouses. The fact that it has always been an elected chamber with aspecific constitutional function may give to the actions of the Senate alegitimacy that may not always have attached to the actions of LegislativeCouncils, at least until they became elected houses. It is still true of theCommonwealth government that the executive will be chosen on thebasis of support of a majority of the House of Representatives, but, tomaintain itself in office, it is now clear that any government also requiresthe support of a majority of Senators on crucial issues, such as Supply.In this sense the government must, in at least one sense, be said to beresponsible also to the Senate.so

In this context, responsibility and accountability must be seen asconnected. A government which does not account for its actions byexplanation or defence can, at least in theory, lose the support of oneor both of the Houses of Parliament. In this context we are concernedboth with the mechanisms for reporting the activities of the executivegovernment to Parliament, and with the reverse mechanism, the meansby which the wishes of Parliament (in so far as Parliament can be said tohave any identifiable wishes), the institution to which the governmentis responsible, can be conveyed to the public servants who make up the

28 C()nvention Debates (Sydney 1891) 280.29 Sawer, Federation Under Strain (1977) 121-129; Howard and Saunders, "The

Blocking of the Budget and Dismissal of the Government" in Evans (ed.), Laborand the Constitution 1972-1975 (1977) 258-270; Cooray, Conventions, the Australian Constitution and the Future (1979) 150.

30 This difficulty, though not the extent of it, was foreseen by Quick and Garran,Ope cit. 706. ct. Richardson, "The Legislative Power of the Senate with respect toMoney Bills" (1976) 50 A.L.J. 273.


executive government. The present meaning of "accountability" will beconsidered later.

It is clear that in the Engineers' case31 Isaacs J. who had been anactive participant in the Constitutional Conventions characterised thegovernment of the Commonwealth as responsible government, and didso by way of response to an argument that the striking down by theCourt of the "implied" doctrines of reserve powers and immunity ofinstrumentalities would create some sort of tyranny by destroying theposition of the States. Responsible government was seen both as a partof the Constitution and as a protection against the undue concentration,or abuse, of power.

In more recent cases, Barwick C.J. in particular has stressed that theConstitution requires responsible government:

Sections 62 and 64 of the Constitution introduced responsiblegovernment: on the one hand, leaving aside most exceptionalcircumstances, the Crown acts on the advice of its Ministers, and,on the other hand, the Ministers are responsible to the Parliamentfor the acts of the Crown. In the long run the Parliament, comprising the House of Representatives and the Senate, is in a positionto control the Executive Government.3'2

This judgment was delivered on 17 December 1975, in sufficient timeto reflect the current realities of the Australian Constitution. What hasnot been changed by the events of 1975 is the idea that Ministers areresponsible to Parliament for the acts of the Crown, that is, the executivegovernment, and control that branch of the government. Yet, accordingto the political scientists, that is not what happens, and nowhere is it lesstrue than in the area of statutory authorities.

The other side of the coin is the question of whether, and to whatextent, Parliament and Ministers may control the activities of statutoryauthorities, even in the absence of specific statutory provisions. Thatquestion, and the question of whether it is certain that statutoryauthorities form part of the executive government of the Commonwealth,or whether, indeed, some of them are part of the structure of governmentat all, will be dealt with infra.

31 (1920) 28 C.L.R. 129.32 New South Wales v. The Commonwealth (1975) 135 C.L.R. 337, 364-365;

his statements in Salemi v. MacKellar [No.2] (1977) 137 C.L.R. 396, 403 aresimilar in effect. In Victoria v. The Commonwealth (A.A.P. case) (1975) 134C.L.R. 338, 405-406, Jacobs J. refers to the important ro~e of Ministers in theexercise of executive powers, and in the same case, ide 384, Stephen J. refers tothe requirements in SSe 81 and 83 of the Constitution of appropriation of moneyby the Parliament as an aspect of parliamentary democracy which is basic to theConstitution. The view that the Constitution requires a system of responsiblegovernment has been advanced in a number of other cases, e.g. Theodore v.Duncan [1919] A.C. 696, 706; Australian Communist Party v. The Commonwealth(1951) 83 C.L.R. 1, 221-222; R. v. Kirby; ex parte Boilermakers' Society ofAustralia (1956) 94 C.L.R. 254, 275; Marks v. The Commonwealth (1964) 111C.L.R. 549, 554-558.


4. THE CONSTITUTION AND THE STRUCTURE OFGOVERNMENT

It is clear that under the Australian Constitution there is a formalseparation of legislative, executive and judicial powers. In Dignan's case33

it was made clear that the courts would not insist upon a rigid separationof powers which prohibited the executive arm of government fromexercising legislative powers under delegation from the Parliament,provided that Parliament also maintained a measure of residual control.34

However in the Boilermakers' case,Sli the High Court held that only thecourts established under Chapter III of the Constitution may exercisethe "judicial power of the Commonwealth" and the courts may exerciseonly that power (and its incidents). Significantly-for this discussionthe Commonwealth Court of Conciliation and Arbitration created in1904, which was the subject of the case, was, if not a court, one of thefirst regulatory statutory authorities to be established by the Commonwealth Parliament.

Statutory authorities are part of the executive government, unless byvirtue of classifying their functions as being not part of the function ofgovernment3G it is possible to say that they are sui generis, or to begrouped with corporations incorporated under the Companies Acts andsimilar legislation.37 However, for the purposes of this article it is assumedthat any person or body charged with the function of giving effect tosome purpose expressed in legislation should be regarded as part of theexecutive government.

33 Victorian Stevedoring and General Contracting Co. Pty Ltd v. Dignan (1931)46 C.L.R. 73.

34 See also Cobb & Co. Pty Ltd v. Kropp [1967] 1 A.C. 141.35 R. v. Kirby; ex Parte Boilermakers' Society of Australia (1956) 94 C.L.R.

254; (P.C.) (1957) 95 C.L.R. 529. But in R. v. Joske; ex parte Australian BuildingConstruction Employees and Builders' Labourers' Federation (1974) 130 C.L.R.87, 90, 102, Barwick C.l. and Mason l. threw some doubt on the correctness ofthis decision.

36 This point seems to have been argued at least obliquely but not fullyconsidered in Bank of New South Wales v. The Commonwealth (1948) 76 C.L.R.1, 19 per Barwick K.C. arguendo. It would seem clear that once it is establishedthat the Commonwealth Parliament has power to legislate with respect to aparticular subject matter, its power includes the power to establish some institutionto carryon a related operation, even of a commercial nature (infra p. 367). Forother purposes, such as determining whether or not a particular statutory authorityfalls within "the shield of the Crown", the type of activity carried on by theauthority may be relevant: e.g. Grain Elevators Board (Victoria) v. DunmunkleCorporation (1946) 73 C.L.R. 70; Chief Secretary (N.S.W.) v. Oliver FoodProducts Pty Ltd (1959) 77 W.N. (N.S.W.) 122.

3'7 Canada Privy Council Office, Ope cit. 17 draws an analogy between statutoryauthorities and companies incorporated under companies legislation in terms ofthe members of governing bodies and their duties, and also in relation to theposition of the government in exercising the powers of corporate shareholders onbehalf of the public. The analogy may be worth developing, but in legal termswould not seem greatly to assist, despite the organisational similarities betweensome statutory authorities and some larger private corporations.

1980] Accountability of uResponsible Government" 365

Bodies such as the Conciliation and Arbitration Commission, theCommonwealth Scientific and Industrial Research Organization, theAustralian National University and the Canberra College of AdvancedEducation cause some difficulty: they do not fall clearly within eitherthe legislative, executive or judicial arms of government. Yet a bodysuch as the A.C.T. Schools Authority would seem to carry out functionsof the executive government, and it is not difficult to argue by analogythat if its educational functions are part of the executive branch ofgovernment, then those of the Canberra College of Advanced Educationmust be treated similarly. The educational functions of the AustralianNational University are not dissimilar from those of the Canberra Collegeof Advanced Education; should they not also be regarded as part of theexecutive government? And both College and University carry outresearch, and might possibly be regarded as similar in this respect to theC.S.I.R.O. However, such arguments are not always helpful, and it maybe better to look at various types of statutory authorities in terms oftheir functions, rather than of their legal structure, even though, in termsof the question of the degree to which such authorities are subject toministerial direction, a functional distinction may also be unproductive.Certainly a functional approach, coupled with a structural approach,has been applied for some types of characterisation of bodies establishedby statute.38

Chapter II of the Constitution deals with the Executive Governmentof the Commonwealth. The relevant provisions are sections 61, 62, 63and 64:

61. The executive power of the Commonwealth is vested in theQueen and is exercisable by the Governor-General as the Queen'srepresentative, and extends to the execution and maintenance ofthis Constitution, and of the laws of the Commonwealth.

62. There shall be a Federal Executive Council to advise theGovernor-General in the government of the Commonwealth, andthe members of the Council shall be chosen and summoned by theGovernor-General and sworn as Executive Councillors, and shallhold office during his pleasure.

63. The provisions of this Constitution referring to the GovernorGeneral in Council shall be construed as referring to the GovernorGeneral acting with the advice of the Federal Executive Council.

64. The Governor-General may appoint officers to administer suchdepartments of State of the Commonwealth as the Governor-Generalin Council may establish.

Such officers shall hold office during the pleasure of theGovernor-General. They shall be members of the Federal ExecutiveCouncil, and shall be the Queen's Ministers of State for theCommonwealth.

38 Committee of Direction of Fruit Marketing v. Australian Postal Commission(1980) 30 A.L.R. 599.

366 Federal Law Review -[VOLUME 11

After the first general election no Minister of State shall holdoffice fo~ a longer period than three months unless he is or becomesa senator or a member of the House of Representatives.

The effect of these provisions is to establish a system of responsiblegovernment. The Ministers provide the key link in the system. They areto sit in the Parliament, and they are also required to administer thedepartments of state. In their capacity as members of the ExecutiveCouncil they are also to determine which departments of state are to becreated. The RCAGA was committed39 to maintenance of the accountability of Ministers to Parliament, but a member of the Commission,Professor Campbell, suggests that the role of the Parliament in theactual operations of government may be limited; she points out thatthough the courts have not enforced rigidly the distinction betweenexecutive and legislative power, they might not sanction an attempt bythe Parliament to intervene in the process of administration.40 Nor, shesuggests, could Parliament, having intervened directly (other than byway of legislative prescription) in the affairs of the administration,impose any sanction, notwithstanding its apparent power to punish forcontempt, to judge and convict any person for breach of its prescript.for to do so might well be found to be a usurpation of the judicial powerof the Commonwealth.41 Nor, it is suggested, would Parliament havethe time to intervene directly in administrative processes. All that"responsible government" requires and permits of the Parliament, itseems, is the means of knowing what the administration has done, andof venting criticism of such actions. In both of these functions theMinister is the conduit between Parliament and administration.

Kernaghan points out that "accountability", though associated with"responsibility", is narrower: it refers to a process of conveying information, while responsibility connotes a two-way process in which"participants in the political process" exercise influence in response tothat information.42 Perhaps this view is closer to what, in constitutionaltheory, is meant by "responsibility".

Within the limits of the Constitution there is no mention of any formof organisation of the executive government other than the departmentsof state. It might, perhaps, be argued that this failure to mention anyform of organisation other than departments of state must indicate anintention that those institutions are the only permissible form of administrative organisation. Any such argument would need to be based on theapplicability of the maxim espressio unius est exclusio alterius, which asPearce points out43 "is applied by the courts with extreme caution"; the

39 Ope cit. para. 5.1.6.40 Campbell, "Parliament and the Executive" in Zines (ed.), Commentaries on

the Australian Constitution (1977) 91-92.411bid.42 Kernaghan, Ope cit. 928.43 Pearce, Statutory Interpretation in Australia (1974) 35.


argument has not been put in any reported case. Although the maximhas been relied upon in interpreting the Constitution as it relates to theextent of the legislative powers of the Commonwealth,44 since theEngineers' case4S the Court has tended to give a wide reading to allpowers of the Commonwealth, including the legislative powers. There isno reason to doubt that they would also give a wide reading to theexecutive power.

The number of cases in which the High Court has considered theexecutive power of the Commonwealth is relatively small, and in oneof the most recent, the Australian Assistance Plan case,46 the majorityof the Court appears to have taken a flexible approach to the limits ofthe executive power, indicating that those Justices, at least, might beprepared to accept that the executive government of the Commonwealthwas not required by the Constitution to be organised exclusively in theform of departments of state. It is arguable that the Court would permitthe use of other organisational structures, subject to one importantqualification, that whatever organisation is used must be consistent withthe principles of responsible government which the Court has found tobe dictated by the Constitution. Perhaps the express mention of theInter-State Commission in section 101 of the Constitution provides someclue that, at least for some purposes, the framers of the Constitutionenvisaged the use of a non-ministerial, non-departmental torm.

In many cases the Court has not questioned the use by the Commonwealth Parliament of the device of a statutory authority to carry intooperation the legislative purposes provided that those purposes arethemselves authorised by the Constitution. The legislativ~ power givenby section 51 (xxxv) of the Constitution envisaged that the settlementof industrial disputes extending beyond the boundaries of anyone Statewould be settled by conciliation and arbitration, and this presupposesthat there should be some person or body to effect the processes ofconciliation and arbitration. How could the person or body be clothedwith the necessary powers except by statute? By the very act of legislatingfor this purpose the Parliament created a body which falls within thedefinition of statutory authority. It is possible for reasons such as thisthat the Court has not appeared to question the constitutional validityof the use of the statutory authority for a wide range of purposes.

In Commonwealth v. The Australian Commonwealth Shipping Board47

the Court did not question the use of a statutory authority as a mechanismfor fulfilling the legislative purpose of Parliament. In the Clothing Factory

44 E.g. Attorney-General (N.S.W.) v. Brewery E,nployees' Union of NelV SouthWales (Union Label case) (1908) 6 C.L.R. 469, where the majority of the Courtused the maxim to support the limitation of Commonwealth powers under thedoctrine of "reserved powers"; ct. the dissenting judgment of Higgins J. (611-612).

45 (1920) 28 C.L.R. 129.46 Victoria v. The Commonwealth (1975) 134 C.L.R. 338.47 (1926) 39 C.L.R. 1.


case48 the Court upheld the use of factories and manufacturing operationscarried on by statutory authorities as incidental to the defence of theCommonwealth. In Australian Coastal Shipping Commission v. O'Reilly..9it raised no objection to the creation of the Commission by statute,provided that the statute itself was within the legislative power of theCommonwealth. This decision contains the fullest consideration of thelegal and constitutional status of statutory authorities, meagre thoughit be. The case concerned the question of whether the Commission,established by the Australian Coastal Shipping Commission Act 1956(Cth), was liable to certain State taxes. Sections 17 and 18 of the Actgave the Minister certain specific powers to direct the activities of theCommission. The Court found that the Commission was not liable topay the taxes because a section in the Act which so provided wasconstitutionally valid. Dixon C.J. found that the power of the Parliamentunder section 51 (i) of the Constitution to make laws with respect totrade and commerce among the States and with other countries gave itfull power to establish a shipping line, provided this was done "underthe legislative control of the Parliament".50 His Honour went on:

The fact that a corporation is established to carry on the line makesit no less a function carried on in the interests of the Crown in rightof the Commonwealth. The provisions which are set out above setup a corporation as the object of rights and duties and as a legalperson in whom the property in the assets is vested. They showthat the corporation is established for the purposes of the Crown inright of the Commonwealth.... The legislative power seems amplenot only to enable the Parliament to establish a corporate agencyof the Commonwealth to carry on an overseas and inter-Stateshipping line, but also to protect the Commonwealth Governmentbody from what may be considered the embarrassment of taxationby the various States.51

Kitto, Taylor, and Owen JJ. and Windeyer J. in a separate opinionagreed with the Chief Justice. McTiernan J., who observed52 that theCommission was not independent of the government of the Commonwealth, found that the establishment of the Commission could besustained under section 51 (i) or (xxxix). Menzies J. dissented. Hestated53 that the Commission was independent of the government of theCommonwealth, and made the following remarks:

Departments of the Commonwealth are in a different constitutionalposition from Commonwealth statutory corporations not constituting part of the Commonwealth ... officers of the Commonwealthare in a different constitutional position from employees of Com-

48 (1935) 52 C.L.R. 533.49 (1962) 107 C.L.R. 46.so Id. 54.SlId. 54-55.52Id.59.5S Id. 61.


monwealth statutory corporations and are dealt with particularlyin sections such as 51 (xxxix), 52, 67 and 75.54

He found that there was no general legislative power enabling theParliament to set up statutory authorities with the rights and immunitiesof Commonwealth departments and of the Commonwealth servantsemployed in them; if the Commonwealth were to set up a statutoryauthority, this must be based on some particular legislative power. Hefound that in the Second Uniform Tax case55 the Court had warned ofthe need to place limits on the "incidental power" especially where itwas used to infringe the rights of the States.56 These views seem to bein line with those expressed by his Honour in the [pee case.57

Section 51 (xxxix) of the Constituti~n, the "incidental" power, givesto the Parliament the power to make laws which are necessary to giveeffect to any other laws made by the Commonwealth, and it wouldappear that if the Parliament determines that an independent body is themost appropriate means for carrying the purpose of a statute into effect,then the establishment of a statutory authority, whether or not incorporated, will be justified under section 51 (xxxix), provided that thepurpose is itself a justified exercise of the legislative power of theCommonwealth.

A problem which has been alluded to in some of the cases is the extentto which the policy of either the government or the Minister should begiven effect in the activities of statutory authorities. These discussionsmay be of direct relevance in considering the question of whether theHigh Court is likely to find that the Commonwealth has the power toestablish statutory authorities which are entirely free of ministerialcontrol. Recent statements, discussed infra, indicate that, at least in theabsence of clear words in a statute which provide that the activities ofa statutory authority will be free from ministerial control,58 the HighCourt will read the statute consistently with its view of responsiblegovernment, and will find that the statutory authority is required to obeyand implement directions given to it by the Minister, who is, in constitutional terms, the head of the department of state, and responsible tothe Parliament for the activities of administration. For this purpose, itis submitted, the Court will not distinguish between departments of stateon the traditional model, and other organs of administration. Mentionhas been made already of the possibility that the Court might infer fromsection 64 that the ministerial department of state is the only form ofgovernmental organisation permitted by the Constitution. Similar argu-

MId. 66.65 Victoria v. The Commonwealth (1957) 99 C.L.R. 575, 614 (though, with

respect to Menzies J., the remarks of Dixon C.J. appear limited to the use of thetaxation power).

66 (1962) 107 C.L.R. 46, 67.51 Infra nne 65-70.58 E.g. Australian Security Intelligence Organization Act 1979 (Cth), s. 8(2).


ments, based on a constitutional requirement for responsible government,might be advanced to call in doubt the validity of a statutory requirementprecluding the power of a Minister to give directions to a department orinstrumentality, such as section 8 (2) of the Australian Security Intelligence Organization Act 1979 (Cth). If such an argument were notsustained, even if the statute establishing the organisation states in clearterms that the authority shall be independent of ministerial control, it isat least arguable that any provision which seeks to oust the answerabilityof the Minister for the activities of the authority offends against theConstitution, as being inconsistent with the requirement of responsiblegovernment which the Court has found to be laid down in sections 61,62 and 64 of the Constitution.59' \Vhile, since the Engineers' case, it isclear that the Court is unlikely to interpret provisions of the Constitution (with the possible exception of sections 90 and 92) in the light ofpolitical theories,oo the requirement of responsible government is notmere theory in the same sense as the doctrine of reserved powers was.Rather, the requirement of responsible government in this sense is "theresult of interpreting ... specific language".61 In the absence of specificlanguage in the statute establishing the authority which specificallypermits or precludes ministerial directions either generally or on a limitedrange of matters, the Court will find that the Minister has power to issuedirections to the authority, and that the authority must give effect tothem. This judicial approach may not fit easily with the often expresseddesire of politicians that authorities should be independent, and it ispossible, though unlikely, that in some cases the Court will infer fromthe purpose of the authority an intention to exclude a power of ministerialdirection. The position is unclear and calls for legislative clarification.

This tendency is well illustrated by an examination of the way inwhich the courts approach the question of the effect of ministerial orgovernment policy upon the exercise of a discretion by a persondesignated by statute. At one time any direction by the government orany statement by the designated person that he or she intended to observeor apply government policy was taken to be an example of that person's"fettering" his or her discretion, a matter which might lead to theinvalidity of the exercise of the discretion.62 This attitude is apparent inthe approach which the High Court took in R. v. Mahony; ex parteJohnson.63 This was an application for mandamus to compel an officialto renew a licence pursuant to regulations made under the Transport

59 Text accompanying nne 31-32 supra.00 Cf~ Zines, "Sir- Owen-nixon's Theory of Federalism" (1965) 1 F.L.Rev. 221.

Note the judgments of Barwick C.l. and Mason l. in recent ~ases concerning s. 90:M.G. Kailis (1962) Pty Ltd v. Western Australia (1974) 130 C.L.R. 245 and H.C.Sleigh Ltd v. South Australia (1977) 12 A.L.R. 449.

61 Engineers' case (1920) 28 C.L.R. 129, 145 per Isaacs l.62 Evans v. Donaldson (1909) 9 C.L.R. 140; and semble, a majority in R. v.

Anderson; ex parte Ipec-Air Pty Ltd (1965) 113 C.L.R. 177.os (1931) 46 C.L.R. 131.


Workers Act 1928-1929 (Cth). The applicant was not a member of aspecified union; there was evidence that it was the policy of the Government that members of the union should be favoured in the granting orrenewal of licences. The Court found that, on the construction of therelevant provisions, the officer had no discretion to refuse to renew thelicence. However, Evatt J., referring to the role of government policy,said:

If it is assumed that the licensing officer has a discretion to refuselicences, I think that he is not debarred from considering theexistence of such a policy. He would be regarded not as a judicialbut as an administrative officer vested with a discretionary power.He would have to act honestly, but he might well pay some regardto the preference scheme favoured by the Government. . . . Aboveall, the discretion to be exercised would be his discretion, and hecould not allow the Executive or any other person to exercise itfor him.64

Two points arise from this observation, which was the only relevantstatement, even though an obiter dictum. First, the official in the case wasregarded as acting in an administrative rather than a judicial capacity.It is not clear exactly wherein the distinction lies, and it is certain that inadministrative law a person who has a duty to act judicially has certainobligations, one of which is to decide reasonably, upon relevant considerations, and according to the evidence presented, and not otherwise.Secondly, there is no suggestion that the official had a duty or obligationto apply the policy of the government, but merely that he wO\lld beentitled to take it into account.

The next occasion on which the matter came before the Court alsoconcerned the issuing of licences,65 but the respondent to the action wasa statutory authority, the Director-General of Civil Aviation. The AirNavigation Regulations required that no aircraft could be imported intoAustralia without a licence issued by the Director-General of CivilAviation. The Director-General admitted that he regarded the decisionof whether or not to grant the licence as a political decision, and he hadaccordingly sought the views of the Government, which had indicatedthat it was opposed to the issue of the licence. He had accordinglyrefused to issue it, and the applicant sought mandamus. The applicationwas refused, by majority. Taylor and Owen JJ. found that the fact thatthe Director-General had taken into account the policy of the Government did not invalidate the decision. In their Honours' view, this was"a matter proper to be considered by him"oo and the decision was reallythe personal decision of the Director-General, and not that of theGovernment. The third member of the majority, Windeyer J., wentfurther, yet it appears to be his view which now represents current

64 Id. 145.65 R. v. Anderson; ex parte Ipec-Air Pty Ltd (1965) 113 C.L.R. 177.G6 Id. 200.


thinking on the High Court. He also recognised that the discretion vestedin the Director-General was of an administrative rather than a judicialnature. Windeyer J. said "I think that the only consideration by whichthe Director-General could properly have been guided was the policy ofthe Government".67 Later he said:

The Director-General is the officer whose written permission mustbe produced to Customs. But in my opinion that does not meanthat he is to grant or refuse permission according to some view ofhis own, giving weight or no weight as he chooses to the policy ofthe Crown. On the contrary, I think his duty is to obey all lawfuldirections of the Minister under whom he serves the Crown. TheMinister is answerable before Parliament.68

Kitto and Menzies JJ. dissented. Kitto J., perhaps rather grudgingly,conceded that

where the law confers a power of discretionary decision upon anofficer of the civil service in his official capacity Governmentpolicy is not in every case an extraneous matter which he must putout of consideration!J9

His Honour gave weight to the fact that the legislature had vested thediscretion in the Permanent Head, not the political head, of the department, and that the decision which had actually been taken was that ofthe Government, not of the Director-General. Menzies J. also consideredthat there was a distinction between vesting a discretion in the PermanentHead and vesting it in the Minister; and when the decision is to betaken at the departmental rather than the political level, while government policy may be taken into account, it should not be permitted tooutweigh other considerations.70

Between 1965 and 1977 the functions of the Director-General ofCivil Aviation under the Air Navigation Regulations had been transferredto the Secretary of the Department of Transport. The considerationsin Ansett Transport Industries (Operations) Pty Ltd v. The Commonwealth71 were similar to those which arose in the [pee case. With theexception of Mason J., all the Justices who sat in this case found thatconsiderable weight should be placed on considerations of governmentpolicy; and at least three members of the Court took a position similarto that taken by Windeyer J. in the earlier case.

The position which appears clearest is that of Murphy J.:

In the [pee Case there was a division of opinion on whether theDirector-General of Civil Aviation should exercise the same powerto permit the importation of aircraft quite independently of any

67Id.204.68Id.206.69Id. 192.70Id. 201-202; cf. Bosnjak's Bus Service Pty Ltd v. Commissioner for Motor

Transport (1970) 92 W.N. (N.S.W.) 1003, 1016.71 (1977) 139 C.L.R. 54.


direction by the Minister or consideration of government policy./Under s. 64 of the Constitution, the Minister is appointed toadminister the Department. The system of responsible governmentwhich is reflected in SSe 61 and 64 of the Constitution contemplates(if it does not require) that executive powers and discretions ofthose in the departments of the executive government be exercisedin accordance with the directions and policy of the Minister.Unless the language of legislation (including delegated legislation)is unambiguously to the contrary, it should be interpreted consistently with the concept of responsible government. It would beinconsistent with that concept for the secretary or any officer of adepartment to exercise such a power or discretion contrary to theMinister's directions or policy (provided of course these are lawful).It is not for the officer to distinguish between "government policy"and the Minister's policy. The duty of those in a department is tocarry out the lawful directions and policy of their Minister. It is theMinister who is responsible to the government and the parliamentfor the directions and policy.12

The views of Barwick C.J. were similar:

Lastly, I do not regard the observance of government policy by theComptroller-General of Customs as any breach of his duty. Indeed,he would be bound, in my opinion, to carry out the communicatedpolicy of government in deciding whether or not to grant hisconsent to importation. The vesting of a discretion in an official inan area such as the control of entry into Australia of goods orpersons does not, in my opinion, give him a power to ignore or todepart from government policy in the exercise of this discretion inrelation to such entry.73

Gibbs J. said:

Nor do I think that it would be wrong for the Secretary, in exercisinghis discretion under the regulations, to give ,veight, and indeedconclusive weight, to the policy of the government.74

Aickin J. said:

. . . although the discretion is that of the Secretary of the Depart-.ment of Transport, it is not one to be exercised entirely accordingto his personal views. Government policy, and particularly thatapplicable to matters within the scope of his Department must inevery case be a matter for his serious consideration. Moreover theMinister or the cabinet may properly indicate to him what government policy is in relation to imports of aircraft generally or to theimportation of particular aircraft. There is nothing improper in theMinister requesting him to act in a particular manner or seeking toinfluence or persuade him to act in a particular manner, nor isthere any ~ailure of duty by a head of a department of government

72Id.87.73Id. 61-62.'l4Id.62.


in acting in accordance with such a request. In many matters ofpolicy it might indeed be the duty of the Secretary to act inaccordance with the policy of the government of the day:'o

Only Mason J. took a narrower view of the power of the Minister todirect the Secretary. He expressly disagreed76 with the view expressedby Windeyer J. in the Ipee case,'7 but his views are certainly consistentwith the views expressed by Taylor and Owen JJ. in that case. Hisconclusion is based in logic. If the statute vests the power of decisionin the Secretary, the decision cannot truly be said to be the Secretary'sif he is bound to exercise that power in accordance with the Minister'sdirections.

In a case decided shortly before Ansett Transport Industries (Operations) Pty Ltd v. The Commonwealth, Salemi v. MacKellar [No.2],Barwick C.J., referring to the provisions of the Migration Act 1958(Cth) , said:

It gives an officer authority to grant entry permits. But, though anofficer may grant an entry permit and has a discretion in thatrespect in the sense that he is not obliged to make the grant, hewill be bound, in my opinion, to act in its exercise in accordancewith government policy.78

There does now seem to be a conclusive majority (Barwick C.J. andprobably, in some cases, Gibbs, Aickin and Murphy JJ.) in favour ofthe view that at least in some cases a direction by the Minister is bindingupon those who are his subordinates. Barwick C.l., Windeyer J. andMurphy J. have related this view to the principle of responsible government, or at least to the principle that Ministers are responsible toParliament for the actions of their departmental subordinates.

Some of the justices in these cases speak of the Permanent Head inhis capacity as a civil servant within a departmental structure. InSalemi's case, the remarks of Barwick C.J. were directed to officers andto the Minister, but in the absence of clear words in a statute conferringpower on a statutory authority, it appears that such an authority wouldbe in the same position. But, with respect, it is suggested that where theofficer is fulfilling the duties imposed upon him as holder of a statutoryoffice, he may more properly be regarded as a statutory authority, albeitone acting within the structure of a department of state. It seems to bean open question whether the Court would take the same view in respectof an administrative statutory authority operating independently of adepartmental structure.

In some of the cases referred to, reference has been made to aclassification of powers as being either "administrative" or "judicial"(or, perhaps "quasi-judicial"). While classification of functions and

'5Id. 115-116.16Id.82.'7 (1965) 113 C.L.R. 177.'8 (1977) 137 C.L.R. 396, 403.


powers is marginally, if at all, relevant in itself, it may have somebearing on the extent to which the exercise of power by an officer or bya statutory authority may be subject to government policy. In administrative law there is a traditional policy that a person having a discretionto decide may not do so "under dictation", that is, under the directionof some external person or body. Linked with this doctrine is the rulethat such a body may not "fetter" its discretion by announcing that itwill exercise its discretion in accordance with a certain rule or policy(or, in fact, by exercising the discretion without the making of any suchannouncement). It would seem almost certain that it was to thesedoctrines that Evatt J. in R. v. Mahoney79 and Windeyer J. in the Ipeccaseso referred when they spoke of the officer acting in an administrativecapacity.

The historical origin of the "dictation" rule is clear; the traditionaladministrative law remedies were often directed to Justices of the Peace,who were laymen, and who had both judicial functions (for example,hearing criminal charges) and administrative functions. When suchpersons were exercising a judicial role, it was important in theory thatthey should not be influenced in their decisions by, for example, a locallandlord or other influential person.81 The decisions which they madewere required to be their own decisions, and not those of any otherperson. This background would explain the views of Kitto, Menzies andMason JJ. discussed supra.

The view of the majority of the High Court today is that functionsthat can be characterised as administrative must be exercised in accordance with government policy. The difficulty arises in limiting the rangeof powers to which this principle applies. It would appear that thequestion of classification of functions is less important today than onceit was.82 In Australia, some assistance is available from an otherwisecomplicated area of law, namely, the determinations of the High Courtas to what constitutes "the judicial power of the Commonwealth",because it is clear that no administrative body can exercise it.83 Yet abody need not exercise "the judicial power of the Commonwealth" inorder to be subject to the requirement of administrative law that it act"judicially", which is the obligation of any body or individual havingthe power to make decisions affecting the rights of subjects to act inaccordance with the principles of natural justice.84 The requirement to

'9 (1931) 46 C.L.R. 131.80 (1965) 113 C.L.R. 177.StE.g. ex parte Duncan (1904) 4 S.R. (N.S.W.) 217; Evans v. Donaldson

(1909) 9 C.L.R. 140.82 This is the view of Whitmore and Aronson, Review of Administrative Action

(1979) 11 and of Sykes, Lanham and Tracey, General Principles of AdministrativeLaw (1979) 5.

83 R. v. Kirby,· ex parte Boilermakers' Society of Australia (1956) 94 C.L.R.254; (P.G.) (1957) 95 C.L.R. 529, but see n. 35 supra.

M Ridge v. Baldwin [1964] A.C. 40; Banks v. Transport Regulation Board(1968) 119 C.L.R. 222.


act judicially applies to all such administrative bodies, and does notnecessarily mean that the functions of the body will be characterised as"judicial". For example, the Administrative Appeals Tribunal actsjudicially, in the sense that it must not be biassed, and must give partiesan opportunity to be heard, but this Tribunal does not exercise "thejudicial power of the Commonwealth".

The functions of the particular authority may also influence the Courtin determining the nature and extent of an implied ministerial power ofdirection, though it is submitted that the cases to date suggest that theCourt will not readily exclude such a power. As the function of theConciliation and Arbitration Commission is the prevention and settlement of industrial disputes by conciliation and arbitration, it might bedifficult to support a power of ministerial direction on policy, as thiswould be inconsistent with the constitutional basis of the legislationestablishing the Commission. Though, in political terms, a power of theMinister to give policy directions to the Australian National University,similar to the power expressly stated in section 5(a) of the CanberraCollege of Advanced Education Act 1967 (Cth) would be undesirable.there is no reason why the Court should not find that such a power existed.Certainly some statutes do purport to exclude the right of the Ministerto give directions to the authority, but it would appear that the validityof such provisions has never been questioned, and, in view of thearguments presented above which flow from the requirement of theConstitution for responsible government, there must be some doubtabout the validity of such exclusions. Even on the view taken byMenzies J. in Ipec,85 it seems that it would be permissible for an officialor a statutory authority, no matter whether its function was classified as"administrative" or "judicial", to formulate its own policy after considering the policy of the government.

The relevant rule of law would seem to be in such cases that providedthe policy is in accordance with lawS6 it may be applied, as long as thepolicy is not allowed to outweigh the considerations which are raised bythe evidence or the other circumstances of each individual case81 and that,regardless of the policy, the authority asks itself the right question andtakes reasonable steps to acquaint itself with the relevant information.88

5. MECHANISMS FOR CONTROL OF STATUTORYAUTHORITIES- _

a. Parliamentary Mechanisms

At this stage it must be stressed that "responsible government"depends both on the duty of Ministers to ensure that their departments

85 (1965) 113 C.L.R. 177.86 Green v. Daniels (1977) 13 A.L.R. 1.8T British Oxygen Co. Ltd v. Minister of Technology [1971] A.C. 610, 625, 63t.88 Secretary of State for Education and Science v. Tameside Metropolitan

Borough Council [1977] A.C. 1014, 1065 per Lord Diplock.

1980] Accountability of uResponsible Government" 377

and the other organs of government subject to their control act inaccordance with legislation, and (in SO far as they can be ascertained)with the wishes of Parliament generally. Another fundamental assumptionabout the structure and operation of Australian government is that it isgovernment according to law, and it is not 'only the Parliament whichhas a role in ensuring that the operations of government are lawful:the courts and administrative review bodies, and citizens who bring theirgrievances ~o those bodies also have an important role in ensuringmaintenance of the rule of law. Control and influence is but one sideof the coin. The other is the system by which Parliament and the publicgenerally may become aware of the way in which the executive govern..ment of the Commonwealth operates. The two cannot be separated, forwithout information there can be no control.

i. Information

The Kerr Committee found that Parliament did not possess, and wasnot able to obtain, every piece of relevant information in re~pect ofevery action of the executive government of the Commonwealth. Ittherefore recommended two new mechanisms for making this informationavailable. The first was a statutory requirement that wherever an administrative decision was subject to review, a person with an interest in thesubject-matter of the decision should, on making application, befurnished- with the reasons for that decision.89 The second was theenactment of legislation giving a general, enforceable, right of access togovernment information.DO The former is now embodied in provisionsof the Administrative Appeals Tribunal Act 1975 (Cth)91 and theAdministrative I)ecisions (Judicial Review) Act 1977 (Cth).92 Thelatter was, if only in part, the subject of the Freedom of InformationBill 1978, not yet enacted, but also the subject of a lengthy report fromthe Senate Standing Committee on Constitutional and Legal Affairs.8S

While these'statutory requirements would benefit the public, it was alsofelt by the Kerr Committee that the measures would also increase thescope of pa.rliarrlentary scrutiny of the administration, and thereforegive more substance to the concept of responsible government. Manystatutory authorities' decisions are subject to review by the Administrativ~ Appeals Tribunal94 and, unless specifically exempted, are subject

89 Kerr Committee, Report Ope cit. para. 266.90 Id. para. 344.91 S. 28.92 S. 13.93 Senate Standing Committee on Constitutional and Legal Affairs. Report 611

the Freedom of Information Bill 1978, and aspects of the Archives Bill 1978(1979) Parliamentary Paper No. 272/1979.

94 The jurisdiction of the Administrative Appeals Tribunal varies from time totime; some additions are made by way of amendment of the AdministrativeAppeals Tribunal Act and subordinate legislation made thereunder; others aremade by way of amendment of the enactment establishing the particular authority.Appeals from decisions af statutory authorities such as the Secretary of· the


to investigation by the Ombudsman,95 and subject to the recentlyproclaimed Administrative Decisions (Judicial Review) Act 197796 andto the proposed Freedom of Information Bill,9'1 if and when it isenacted.

Even in the absence of such government information, Parliamentalready has some means of obtaining information about the operationsof government. Some, but not all, statutory authorities are required orchoose to furnish annual reports to Parliament.DB The Rae Committeehas recommended the introduction of an Annual Reports Act,· whichwould require all statutory authorities to report annually to the Parliament, and this has been supported by the Joint Committee on GovernmentPublications.1

Where a statutory authority is dependent on the Parliament for funds,those funds must be appropriated by law, in accordance with sections 81and 83 of the Constitution.2 In practice, this means that the authoritymust submit its estimates which after close scrutiny by the Departmentof Finance, are then included in the Budget, and are consequentlyscrutinised by the Estimates Committees of the two Houses. Officers ofdepartments and authorities appear before the Committees with theMinisters and answer questions about the activities of departments andauthorities.

The Audit Act 1901 (Cth) allows the Auditor-General to have accessto the books and records of "any authority established or appointedunder any law of the Commonwealth",3 and in practice the accounts ofstatutory authorities are commonly examined by the Auditor-General,who may report upon them to Parliament. This provides another meansof parliamentary oversight.

Department of Transport, the Commissioner for Superannuation, the AustralianBroadcasting Tribunal, and the Repatriation Review Tribunal are only some ofthe appeals which lie. A complete list of appeals is given annually in the Reportof the Administrative Review Council, and is also published from time to time inPearce (ed.), The Australian Administrative Law Service.

95 Ombudsman Act 1976 (Cth), SSe 3(1), S.96 Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 3(1), includes

within the definition of decisions to which the Act applies all decisions "of anadministrative character made, or proposed to be made, or required to be made,as the case may be (whether in the exercise of a discretion or not) under anenactment ...".

97 The definition of "prescribed agency" in cl. 3 of the Bill would appear toinclude most statutory authorities.

98 Rae Committee, First Report Ope cit. Appendix 6._99 Id. ch. 6.

1 Joint Committee on Publications, Annual Reports of Commonwealth Departments and Statutory Authorities (Seventh Special Report) (1979) ParliamentaryPaper No. 211/1979.

2 Attorney-General (Victoria) v. The Commonwealth (Pharmaceutical Benefitscase) (1945) 71 C.L.R. 237; Victoria v. The Commonwealth (A.A.P. case) (1975)134 C.L.R. 338.

.3S.14B. -

1980] Accountability of ItResponsible Government" 379

The traditional method of obtaining information about ministerialdepartments and statutory authorities remains the parliamentary question.An informed member of Parliament may obtain valuable informationby the questioning of Ministers, but, in the case of statutory corporations,the amount of information given by Ministers may be limited. WhileMinisters may be asked about public affairs with which they are officiallyconnected or any matter of administration for which they are responsible,4

they often take the view that, in respect of a statutory corporation, theyare responsible only for matters of general policy, and not for mattersof day-to-day administration.5 This was one of the reasons for the KerrCommittee's conclusion that parliamentary review of the administrationwas not adequate.6

ii. ControlThe traditional means for ensuring that Ministers should have control

over some, at least, of the activities of statutory authorities is theinsertion in the statute establishing the authority of a provision enablingthe Minister to direct that the authority do, or refrain from doing,certain things. This may take several forms. For example, the AustralianLaw Reform Commission may consider and report only upon thosematters referred to it by the Attorney-Genera1.7 Section 29 of the TradePractices Act 1974 (Cth) provides:

29. (1) The Minister may-(a) give directions as to matters to be given special considerationby the Commission in determining applications for authorizationsor in making decisions for the purposes of paragraph 93(3) (a) or(b); and(b) give directions to the Commission in connexion with theperformance of its functions or the exercise of its powers underthis Act, not including, except as mentioned in paragraph (a) ,functions or powers related directly or indirectly to Part VII,and the Commission shall comply with any directions so given.(2) Any direction given to the Commission under sub-section (1)shall be in writing and the Minister shall cause a copy of thedirection to be published in the Gazette as soon as practicable afterthe direction is given.(3) If either House of the Parliament or a Committee of eitherHouse, or of both Houses, of the Parliament requires the Commission to furnish to that House or Committee any informationconcerning the performance of the functions of the Commissionunder this Act, the Commission shall comply with the requirement.

Part VII of the Act confers on the Commission certain adjudicative, orquasi-judicial, functions and it was apparently considered inappropriate

4 Senate, Standing Order 96; House of Representatives, Standing Order 142.6 Odgers, Australian Senate Practice (5th ed. 1976) 218-220.6 Kerr Committee, Report Ope cit. para. 19.7 Law Reform Commission Act 1973 (Cth) , s. 6(1).

380 Federal Law Review [VOLUME -II

that, when exercising such functions, the Commission should be subJectto ministerial direction.

In older statutes, depending upon the type of authority created, therewas a tendency to limit the power of the Minister to give directions. Forexample, the only express power of the Minister to direct the activitiesof the Australian Broadcasting Commission is contained in sections 64and 77 of the Broadcasting and Television Act 1942 (Cth). Section 64allows the Minister to direct the broadcasting or televising of material inthe "national interest". Section 77 reads:

Subject to this Act, the Minister may, from time to time, bytelegram or in writing, prohibit the Commission from broadcastingor televising any matter, or matter of any class or character,specified in the notice, or may require the Commission to refrainfrom broadcasting or televising any such matter.

Section 78A requires any direction under either of these sections to bereported to the Parliament.

Section 11 (4) of the Reserve Bank Act 1959 (Cth) permits theGovernor-General in Council to determine the policy of the ReserveBank, but only after consultation between the Bank and the Treasurer.This section represents the result of recommendations by a RoyalCommission on the Monetary and Banking System, following extensivedifferences between the Scullin Government and the Board of the (then)Commonwealth Bank during the Depression.8 Section 11 (7) requiresthat Parliament shall be notified of such policy determinations. Prior tothe enactment of the predecessor to this section in 1945, the Commonwealth Bank was not subject to any statutory power in the governmentor the Minister to direct the Bank on either matters of policy or mattersof administration.

A formal power of ministerial direction is not necessary in order forthe government to exercise influence, at times amounting to control, overthe activities of statutory authorities, even in the absence of a possibleview of the High Court that the concept of responsible governmentmight require the implication of such a power of direction. Harding hasindicated this phenomenon in respect of the Australian BroadcastingCommission,9 where the formal, statutory powers of ministerial directionare limited. Government control of funds, and of the appointment ofmembers of statutory authorities or of their governing bodies providesa means whereby Ministers, and officers of their departments, who canbe closer to the Minister than the staff of the statutory authorities, caninfluence both the policy and the administration of the authorities. Thequestion of the extent to which such influence 5s exercised is a politicalmatter, for if such influence becomes widely known, as is the case ofthe Austraiian Broadcasting Commission, it may reflect, in political terms,

8 Royal Commission on the Monetary and Banking Systems, Report (1937) 206.8 Supra n. 8, p. 355.

1980] Accountability of "Responsible Governn1ent" 381

on the government of the day. More often, in the case of less exposedauthorities, the influence never becomes known.

Campbell has suggested:

When it is envisaged that a statutory authority should be subjectto ministerial direction generally, on policy or on specific matters,it is, in my view, desirable that the power of direction be madeexplicit in the enabling statute, and that in order to fix responsibilitywhere it clearly lies, there be a requirement that directions givenbe publicly notified by gazettal, recording in the authority's annualreport or tabling in Parliament.tO

This suggestion has great merit. However, given the control which maypotentially be exercised by Ministers and the government by use ofinfluence arising from the government's control of funds and appointments, any improvement might be slight. Yet it is important thatParliament know the extent to, and the manner in, which Ministers haveinfluenced the decisions of the statutory authorities, for these are trulythe matters for which Ministers should, under the system of responsiblegovernment, be answerable to Parliament.

What has been said so far ignores the ultimate sanction in the handsof the government and Parliament. That is the exercise of the legislativepower of the Commonwealth to amend the legislation creating thevarious statutory authorities. This power can be used to abolish astatutory authority and to reconstitute it, thus having the effect ofterminating the appointment of members who hold office for a fixedterm or for life, and giving the government of the day the opportunityto replace them with persons who may, politically or otherwise, be moreacceptable. In 1977, the Trade Practices Amendment Act inserted section6A into the Trade Practices Act 1974 (Cth). This section abolished theCommission established by the previous Act and replaced it with a newCommission. Similarly, amendments to the Broadcasting and TelevisionAct 1942 (Cth) in 1976 abolished the Broadcasting Control Board,and established the Australian Broadcasting Tribunal to perform at leastsome of the functions previously exercised by the Board. The decisionwhether or not to legislate is, of course, political.

b. Non-parlialnentary Control

If, in terms of current views of political scientists, responsible government l.tas atrophied as a means of ensuring that the executive governmentand its component parts are accountable in some ways, despite theavailability of some means of ensuring accountability to Parliament,there are still other means of ensuring accountability. To be sure, this

10 Campbell, "Ministers, Public Servants, and The Executive Branch" in Evans(ed.), Labor and the Constitution 1972-1975 (1977) 141-142. The Law ReformCommission of Canada reached a similar conclusion and has recommended thatthe "policy mandate or guidelines should, in principle, be stated clearly in itsenabling Act": Working Paper 25, Ope cit. 62.


is not accountability to Parliament, but it may be accountability ofwhich, at least indirectly, Parliament may take advantage. This accountability is achieved through the procedures made available through whathas come to be called the "New Administrative Law".

Before the Commonwealth Parliament's enactment of the Administrative Appeals Tribunal Act 1975, the Ombudsman Act 1976, and theAdministrative Decisions (Judicial Review) Act 1977, statutory authoritieswere subject to some controls under the then existing rules of administrative law, and this control could not be excluded because of the viewwhich the High Court had taken of section 75 of the Constitution.11 Forthe purposes at least of section 75 (iii) authorities were taken to be "theCommonwealth" (or representatives of the Commonwealth), and theiremployees were "officers of the Commonwealth" for the purposes ofsection 75(v) .12

Because, by definition, statutory authorities owe their existence andfunctions to statutes, the courts have a "built-in" function. The construction of statutes is essentially a function of the courts. Therefore in sofar as the construction of statutes is involved, the extent of powers of astatutory authority and of its functions are justiciable; and the relatedadministrative law doctrines of ultra vires and jurisdiction govern theactivities of Commonwealth statutory authorities. In addition, othermatters of administrative law, such as the requirement that bodieshaving the power to make decisions affecting the rights of subjectsshould act in accordance with the principles of natural justice, apply asmuch to statutory authorities as they do to other persons having somepublic function. Thus, the procedures of statutory authorities mightcome under the scrutiny of the courts. However, the remedies of the"old" administrative law were technically complicated, and that complexity, coupled with the cost of litigation, deprived all but a few citizensof access to the law.13 The policy of official secrecy and the lack of anyrequirement that reasons should be given for administrative decisionsensured that where subjects were affected by administrative decisions,either they did not know of the making of a decision affecting them, orthey did not know the reasons for the decision. Therefore it was difficultfor them to know whether or not they had any ground for challengingthe decision.

11 E.g. R. v. Hickman,· ex parte Fox and Clinton (1945) 70 C.L.R. 598; see Katz,"Aspects of the High Court's Jurisdiction to Grant Prerogative Writs unders. 73 (iii) and s. 75 (v) of the Constitution" (1977) 5 University of Tasmania LawReview 188.

12 The Tramways case [No.1] (1914) 18 C.L.R. 54 (Court of Conciliationand Arbitration); Bank Nationalisation case (1948) 76 C.L.R. 1 and Inglis v. TheCommonwealth (1969) 119 C.L.R. 334.

13 Kerr Committee, Report Ope cit. ch. 3; see also Taylor, "Access to Administrative Justice" in Goldring, Gunningham, Hamilton and Partlett (eds), Accessto Law (1980).

1980] Accountability 0/ uResponsible Government" 383

In this area the "New Administrative Law" has had far-reachingeffects, simplifying both access to the procedures for challenging administrative decisions in the courts and those procedures themselves. Inaddition, two new mechanisms have been created, both statutoryauthorities, with powers to bring the administration to account. Andeven more important is the legislative requirement that reasons beprovided for a wide variety of administrative decisions. If enacted, theFreedom of Information Bill will also give a right to access to government information which will enable citizens to know whether a decisionhas been made by the government which affects them. Exposure ofgovernment information and the reasons for administrative decisionsmay increase the efficiency of the administration, including the statutoryauthorities which are subjected to it (and most of those which are notcarrying on activities of a commercial activity in competition withprivate enterprise are likely to be affected). It will certainly increasethe opportunities for challenge of the actions of statutory authorities,both in courts and tribunals, but also in Parliament, for members ofParliament will, either directly or on the information supplied byconstituents, have access to a far greater range of information uponwhich to base their questions and comments than at present.

The rights created by the Administrative Decisions (Judicial Review)Act 1977, and the Administrative Appeals Tribunal Act 1975 call foraccountability to the individual citizen, rather than to Parliament. Whenthe Administrative Appeals Tribunal reviews an administrative decision,its functions extend beyond review of the procedures followed by, andpowers of, the primary decision-maker, that is, beyond the functions ofthe courts under the "old" administrative law and under the AdministrativeDecisions (Judicial Review) Act 1977. The courts exercise the judicialpower of the Commonwealth, and if they wer~ given the function ofreviewing administrative decisions on the merits they would be taken tobe not exercising judicial power, which is contrary to the Constitution.14

The Tribunal does not exercise judicial power; its function is to reachthe "right and preferable" decision in the circumstances10 and its decisionis substituted for that of the primary decision-maker. In performing thisfunction the Tribunal will examine the decision in its entirety, even ifthis involves a review of policy.16 However, the Tribunal will take carewhen faced with the possibility of saying that a policy is wrong, for it isnot answerable to Parliament, as the Minister is.11 Statutory authorities,

14 Supra n. 35.10 Re Becker and Minister for Immigration and Ethnic Affairs (1977) 32 F.L.R.

469, 473; Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2A.L.D. 33, 39.

16 Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 A.L.R. 577,589-591 per Bowen C.J. and Deane J. See Pearce, "Courts, Tribunals and Government Policy" (1980) 11 F .L. Rev. 203.

17 Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2A.L.D.634.


whose decisions are subject to review by the Tribunal, are ma-de accountable to some extent for their procedures and also for their policies, notto Parliament, but, through a statutory authority established by Parliament, to a person affected by the decision. This, in terms of pureconstitutional theory, may be questioned; but in practical terms itprovides a means of control and accountability for administrative actionwhich did not previously exist, and in some senses may be preferableto the system of "indirect" accountability to the public through themedium of Parliament.

The machinery created by the Ombudsman Act 1976 (Cth) differs insome respects from the other elements of the "New AdministrativeLaw", as it involves neither the public disclosure of information nor thepublic review of any administrative act. However, the Ombudsman isgiven wide powers to receive complaints of maladministration and mayalso investigate such matters on his own initiative.IS He has a statutoryright to examine all but a very small proportion of government files andother documents, and also to examine witnesses on oath.19 His powersare limited to "matters of administration", but if he finds that anadministrative action or practice is unreasonable, oppressive, unlawful,unduly discriminatory or wrong20 he may report, initially to the Minister,and if this report and his recommendations are not accepted or thematter is not resolved in a manner satisfactory to him, he may report tothe Prime Minister and ultimately to Parliament.21 Of course, onceParliament becomes seised of the matter it is public, and Parliamentmay, if it wishes, exercise any power of control it may have over theinstrumentality involved. This means of ensuring accountability reliesmore heavily on Parliament than do those established by the Administrative Appeals Tribunal Act 1975 or by the Administrative Decisions(Judicial Review) Act 1977. It also provides a mechanism for consumeraccountability and control which did not previously exist.

6. CONCLUSIONS

It is clear that the High Court regards the Constitution as establishinga system of responsible government. Within that system, it is probablethat statutory authorities may lawfully be established, though the matteris not entirely free from doubt. It may be that the constitutional positionrequires that Ministers' directions and policy must be given weight, ifnot conclusive weight, in the activities of statutory authorities, especiallythe exercise of discretions and the making of decisions, unless thestatute establishing the authority contains clear words to the contrary;

18 Ombudsman Act 1976 (Cth), s. 5(1).t9ld. ss.8-14. See Katz, "The Commonwealth Ombudsman's Power to Compel

Testimonial Activity for the Purpose of an Investigation" supra p. 321.20 Id. s. 15.21ld. s. 17.


and the constitutional validity of such words is also' a matter of somedoubt. Because Parliament possesses the ultimate power of legislati

40n,

it may always control statutory authorities by exercise of this power,but whether it will do so, and whether it will exercise any other powersin respect of Ministers who may have a greater or lesser ~egree ofresponsibility for the activities of the statutory authorities established byCommonwealth legislation, remain political questions. Responsibility isa concept which is not clear, but it does involve both the mechanism forproviding information to those to whom the responsibility is owed, andmechanisms for controlling, or directing, the bodies over which theresponsibility is exercised. Even though there may be defects in theoperation of a system of government responsible to the elected representatives of the people in Parliament, other mechanisms, particularly thoseof administrative law, do provide some measure of accountability for theactions of statutory authorities to the public at large, and, indirectly, tothe Parliament.

Documents

ACCOUNTABILITY OF COMMONWEALTHclassic.austlii.edu.au/au/journals/FedLawRw/1980/26.pdf · 2018-10-27 · may be independent 0/ ministerial and parliamentary control. On the assumption